Smt. Shakuntla vs State Of Uttarakhand And Others
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Uttarakhand High Court

Smt. Shakuntla vs State Of Uttarakhand And Others on 24 March, 2025

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL
             Writ Petition No. 93 of 2023 (S/S)
Smt. Shakuntla                                         ..........Petitioner

                                      Vs.

State of Uttarakhand and Others                       ........ Respondents
Present :   Mr. Syed Nadim, Advocate for the petitioner.
            Mr. N.S. Pundir, D.A.G. for the State.


                                JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The petitioner claims retiral dues and also

refund of the amount, which was deducted from such

dues.

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that she was

initially appointed as Medical attendant on 28.06.1983,

and retired on 30.09.2019 as Swasth Nirakshika, but she

has yet not been paid pension and other retiral dues,

including gratuity, and when approached, the

respondent-authorities revealed that Rs. 2,77,812/- is to

be deducted from her retiral dues. The petitioner claims

retiral dues with 18 per cent rate of interest as well as the

refund of the amount that has been deducted from her

retiral dues.

4. State has filed objections. The factual position

is not in dispute. According to respondents-State, Rs.

2,77,812/- has been deducted from gratuity amount due

to wrong fixation of salary of the petitioner with effect

from 28.06.2007. It is not the case of the respondents

that the petitioner did make any false representation or

she ever played any fraud in receiving any excess

payment.

5. Learned counsel for the petitioner would

submit that the petitioner has wrongly been denied her

retiral dues; the petitioner has yet not been paid the

pension; the petitioner has retired from Group-C post.

6. He would also submit that in view of the

judgment passed by the Hon'ble Supreme Court in the

case of State of Punjab and Others Vs. Rafiq Masih (White

Washer) and Others, (2015) 4 SCC 334, such recovery

cannot be made.

7. Learned State Counsel would submit that due

to wrong fixation, some excess amount has been paid to

the petitioner, which is proposed to be recovered from her

retiral dues.

8. The Court posed a question to learned State

Counsel as to whether the excess payment has been

made due to any misrepresentation or fraud of the

petitioner? The answer is, "No".

9. In the case of Rafiq Masih (supra), the Hon'ble

Supreme Court laid down the law in the following terms:-

"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."

10. The petitioner has not been paid the pension

and gratuity for the last 6 years. This position may not be

a happy affair in a welfare State. Recovery cannot be

made from the petitioner in view of the law, as laid down

by the Hon'ble Supreme Court, in the case of Rafiq Masih

(supra). Therefore, this Court is of the view that the

petition deserves to be allowed.