Allowed

Arvind Kumar Tiwari v. State of U.P. and 7 Others

Allahabad HC2 Sept 2022WRIA/13080/2022

Case brief

AI extract

What is this about?

This judgment allowed a writ petition quashing an order attempting to recover excess salary from the petitioner's gratuity. The court held that recovery from a retired Class-III employee is impermissible under Supreme Court precedents, as the defendant would be a Class-III employee after retirement no recovery of deduction can be made by the authorities.

What did the court decide?

The order dated 19.07.2021 is quashed and terminal benefits remain payable to the petitioner.

Arvind Kumar Tiwari Vs State of U.P. and 7… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 32 Case :- WRIT - A No. - 13080 of 2022 Petitioner :- Arvind Kumar Tiwari Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Dinesh Kumar Singh,Gaytri Rajput Counsel for Respondent :- C.S.C.

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the petitioner and learned Stand Counsel for the respondents.

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Learned counsel for the petitioner submits that the petitioner after completing satisfactory services has retired on 30.06.2021 from the post of Administrative Officer (Class-III) after attaining the age of superannuation.

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Learned counsel for the petitioner submits that while he was in service no disciplinary proceedings was initiated against the petitioner neither the petitioner has been given any notice regarding incorrect determination of his salary. It is after the retirement of the petitioner when claim has been made by him for release of terminal benefits of his retiral dues then the impugned order has been passed on the ground the pay of the petitioner was erroneously fixed since 23.12.2009.

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It is further submitted that vide impugned order dated 19.07.2021 passed by respondent no. 4 on the ground that due to incorrect fixation of pay of the petitioner earlier, the excess payment given by the petitioner is be to recovered from his gratuity.

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It is contended on behalf of the petitioner that being a class-III employee after retirement no recovery of deduction can be made by the authorities.

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Learned Standing Counsel has opposed the petition submitting that the salary of the petitioner was incorrectly determined earlier and due to that he was wrongly paid higher salary and after fixation of the excess amount paid to him, the impugned order has been passed by respondent no. 4 to recover the excess amount paid to the petitioner.

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Learned counsel for the petitioner places reliance upon a judgment of the Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer), reported in 2015 AIR (SC) 696, in order to contend that being a Class-III employee, no recovery or deduction from retiral benefits could have been made by the authorities, in view of following principles laid down in para 18

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of the judgment:-

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"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(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."

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In view of what has been noticed above, this Court finds that the order impugned has been passed in gross violation of principles of natural justice, and therefore, the same is liable to be quashed on such ground alone.

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Writ petition, consequently, succeeds and is allowed. Order dated 19.07.2021 stands quashed. The terminal benefits, which are due and payable to petitioners, would not be withheld on account of the order impugned. It shall, however, be open for the authorities to proceed afresh, in accordance with law, keeping in view the observations made by the Apex Court in Rafiq Masih (White Washer) (supra).

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Order Date :- 2.9.2022/RC

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Digitally signed by RAM CHANDER YADAV Date: 2022.09.06 09:53:12 IST Reason: Location: High Court of Judicature at Allahabad

Arvind Kumar Tiwari v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

Arvind Kumar Tiwari v. State of U.P. and 7 Others

Case brief

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What did the court decide?

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