Allahabad High Court
Kamala Yadav vs State Of U.P. And 2 Others on 17 May, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:89660
Court No. - 35
Case :- WRIT - A No. - 7766 of 2024
Petitioner :- Kamala Yadav
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Vijay Kumar Rai
Counsel for Respondent :- C.S.C.,Sanjay Kumar
Hon'ble Prakash Padia,J.
1. Heard Sri Vijay Kumar Rai, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri S.K. Om, learned counsel for the respondent nos. 2 and 3.
2. Present writ petition has been filed by the petitioner inter-alia with the prayer to quash the order dated 25.4.2024 passed by the respondent no.3, so for it relates to fixation of salary of the petitioner and recovery of Rs. 1,84,163/- from the petitioner.
3. From the perusal of the record, it transpires that when petitioner was going to retire on 30.09.2024, the calculation was made by the respondent no.3 and it was found that certain excess payments were made to the petitioner between the year 2006 till 2023, taking into consideration the aforesaid aspect of the matter, decision has been taken to recover the amount as stated above. It is clear that before passing orders, no notice or opportunity of hearing was provided to the petitioner. It is also clear from the calculation, which is appended at page 18 of the paper book that at no point of time, neither any undertaking has been given by the petitioner nor any misrepresentation was made in this regard by the petitioner. The only ground taken is that though the petitioner was entitled for grant of second and third A.C.P., but the same was wrongly granted to the petitioner prior to the date for which he become entitled.
4. Learned counsel for the petitioner has placed reliance on judgment in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer): 2015 4 SCC 334, the Supreme Court held in paragraph no. 12 as follows:
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
5. It is argued that since the order impugned has been passed without affording any opportunity of hearing to the petitioner, as such orders impugned are liable to be set aside.
6. On the other hand learned Standing Counsel submitted that since the excess payment has been made to the petitioner, same has rightly been recovered from the post retiral benefit of the petitioner. So far as query raised by the court that order has been passed in violation of principle of natural justice as well as law laid down in Rafiq Masih (supra), it is admitted by the learned Standing Counsel that aforesaid aspect of the matters were not taken into consideration by the respondents while passing the order impugned. Sri S.K. Om, learned counsel appearing on behalf of respondent nos. 2 and 3 also supported the arguments raised by the learned Standing Counsel.
7. In this view of the matter, since order dated 25.04.2024 passed by the respondent no.3 in violation of violation of principle of natural justice as well as Rafiq Masih (supra), same is liable to be set aside, it is hereby set aside. This order will not come in the way of respondent no.3 to pass a fresh order, if so advise
8. With the aforesaid direction, the writ petition is allowed.
Order Date :- 17.5.2024
Pramod Tripathi
