Uttarakhand High Court
WPSS/923/2023 on 21 July, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
60D WPSS No. 923 of 2023
Hon'ble Ravindra Maithani, J.
Mr. Pankaj Semwal, Advocate for the
petitioner.
Mr. Narain Dutt, Brief Holder for the
State.
The challenge in this petition is made to
the recovery that has been made from the
retiral dues of the husband of the petitioner.
The payment of gratuity and non-payment of
gratuity and pension. There are other reliefs
also.
Learned State counsel would submit
that identical matter is referred to the Larger
Bench, therefore, the matter may be deferred
for eight weeks.
List on 11.09.2025
Learned counsel for the petitioner
submits that the recovery cannot be made
from the retiral dues of the husband of the
petitioner because he was working on a Group
IV post. He did not make any
misrepresentation or fraud in view of the
judgment of the Hon'ble Supreme Court in the
case of State of Punjab and others Vs. Rafiq
Masih, (2015) 4 SCC 334. In addition to it, it
is also submitted that the Court may while
ordering for refund of the recovery that has
been made from the retiral dues of husband of
the petitioner, respondents may also be
directed to make payment of gratuity of the
deceased husband of the petitioner as well as
to pay her family pension whatever is
admissible according to the respondents.
Learned State counsel would submit
that the benefit of ACP was wrongly given to
the husband of the petitioner. Therefore, the
recovery has been made. He admits that the
husband of the petitioner did not make any
fraud.
In the case of Rafiq Masih (supra), the
Hon'ble Supreme Court culled up the
principles with regard to the recovery from the
employees and in para 18 observed as
follows:-
"18. 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 hereinabove, we may, as a ready reference,
summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from the employees
belonging to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from the retired employees,
or the employees who are due to retire within
one year, of the order of recovery.
(iii) Recovery from the 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."
Admittedly, the husband of the
petitioner did not make any fraud or
misrepresentation during his life time when he
was in service. Therefore, in view of the law
laid down by the Hon'ble Supreme Court in
the case of Rafiq Masih (supra) the recovery
cannot be made. There has been no reason to
withheld the gratuity amount also.
Therefore, till the next date of listing, the
respondent no.4, Treasury Officer, District
Pithoragarh is directed to refund
Rs.3,42,848/- to the petitioner which has
been recovered from the retiral dues of her
husband as well as the payment of gratuity
admissible to the husband of the petitioner
shall also be made to the petitioner and
whatever pension becomes admissible to her
as family pension that may also be given to
her. For the remaining issues, the matter shall
be heard on the date fixed.
Let a copy of this order be sent to the
District Magistrate, Pithoragarh to ensure
compliance of this order.
The District Magistrate, Pithoragarh
shall submit a compliance report before the
date fixed.
(Ravindra Maithani, J.)
21.072025
Jitendra
