Allahabad High Court
Pramod Kumar Sharma vs Sri Ajay Kumar Mishra, Police ... on 22 May, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:92632
Court No. - 51
Case :- CONTEMPT APPLICATION (CIVIL) No. - 3696 of 2024
Applicant :- Pramod Kumar Sharma
Opposite Party :- Sri Ajay Kumar Mishra, Police Commissioner
Counsel for Applicant :- Munesh Kumar
Hon'ble Rohit Ranjan Agarwal,J.
1. The writ Court on 01.03.2024 in Writ -A No.3239 of 2024 passed the following order :
"1. The petitioner has preferred the present petition against the order dated 16.01.2024 issued under the signature of ????? ????? ??????, ?????, ???? ????? ??????? ????????? by which a sum of Rs.8,72,482/- was recovered from the post retiral benefits of the petitioner.
It is argued by the learned counsel for the petitioner that the petitioner was superannuated on 30.04.2023. It is further argued that till the time of superannuation or ever thereafter, no departmental proceedings was ever initiated against the petitioner It is argued that the order of recovery was issued without providing any notice or opportunity of hearing to the petitioner. It is argued by learned counsel for the petitioner that the order of recovery has been passed in complete violation of paragraph 12 of the law laid down by Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White washer) & Others (2015) 4 SCC 334. Paragraph 12 of the aforesaid judgment reads 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."
3. Learned Standing Counsel does not disputed the aforesaid fact.
4. Heard learned counsel for the parties and perused the record.
5. From perusal of the order impugned, it is clear that before passing the order impugned, no notice or opportunity of hearing has been provided and the same has been passed in violation of the law laid down by Hon'le Apex Court in the case of Rafiq Masih (supra).
6. In this view of the matter, the writ petition succeeds and allowed.
7. The order dated 16.01.2024 issued under the signature of ????? ????? ??????, ?????, ???? ????? ??????? ????????? is liable to be set aside and the same is hereby set aside.
8. The respondents are free to pass fresh order, if so advice."
2. From perusal of the order it is clear that the writ Court had quashed the recovery order passed against the applicant relying upon the decision of the Apex Court rendered in case of State of Punjab & Ors. Vs. Rafiq Masih (White washer) & Others (2015) 4 SCC 334.
3. The applicant, in this petition, has averred that retiral dues has not been paid.
4. From perusal of the order passed by the writ Court it is clear that there is no direction as to the payment of retiral dues. Only the amount, which was sought to be recovered from the applicant by the order impugned, has been set aside. As such, no case for contempt is made out.
5. The contempt application is misconceived and stands dismissed.
Order Date :- 22.5.2024
Kushal
