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Hcp Gyanendra Kumar v. State of U.P. and 3 Others

Allahabad HC23 Feb 2023WRIA/21241/2022

Case brief

AI extract

What is this about?

The High Court quashed orders directing the petitioner to recover an alleged error in pension fixation and remitted the matter for fresh examination in light of the Supreme Court's decision in Rafiq Masih regarding impermissible recoveries from retired employees.

What did the court decide?

The impugned orders dated 03.10.2022 and 31.03.2021 were set aside and remitted to the authorities for fresh examination within three months.

Hcp Gyanendra Kumar Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 33

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Case :- WRIT - A No. - 21241 of 2022

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Petitioner :- Hcp Gyanendra Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shubham Tandon,Punit Khare

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Counsel for Respondent :- C.S.C.

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioner and the learned Standing Counsel for the Staterespondents who has furnished the written instructions dated 22.02.2023 under the signature of the Superintendent of Police, Pilibhit, which is taken on record.

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By means of the instant petition, the petitioner prays for the following reliefs which reads as under:-

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"(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 3.10.2022 passed by respondent no.3 (Annexure-1) and the order dated 31.03.2021 passed by respondent no.2 (Annexure 3).

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(ii) Issue a writ, order or direction in the nature of mandamus commanding the concerned respondent authorities, to modify the pension order dated 29.04.2021 to the extent of/ and make payment of petitioner's retiral dues/benefit, including pension and leave encashment etc. at this last fixed/drawn basic pay i.e. Rs.60,400/- alongwith other applicable emoluments and applicable interest thereon."

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The Court had required the learned Standing Counsel to seek instructions as to why the deduction has been made and as per the written instructions, it is indicated that the wrong fixation was made in the year 2006 whereas the petitioner retired on 31.03.2020.

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Having taken note of the written instructions where it is not disputed that the petitioner has retired and there is no fault on the part of the petitioner regarding the alleged incorrect pay fixation, accordingly the authorities by passing the impugned orders dated 03.10.2022 and

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31.03.2021 have not taken note of the decision of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334. The relevant para of the decision of the Apex Court in the case of Rafiq Masih (supra) has been pleased to law down following principles in para 18:-

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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 ClassIV 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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Admittedly, there does not appear to be any case of misrepresentation or fraud on the part of the petitioner in the matter.

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In such circumstances, the orders impugned dated 03.10.2022 and 31.03.2021 cannot be sustained and are set aside. The matter is remitted back to the authority concerned to examine the matter, afresh, and pass appropriate order, keeping in view the principles laid down by the Apex Court in the case of Rafiq Masih (supra), within a period of three months from the date of presentation of

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an authenticated copy of this order. Whatever retiral dues are found payable shall be released to the petitioner within a further period of two months.

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As regards, the claim of interest on the delay dues, it would be open to the petitioner to raise such grievance before the appropriate forum.

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Writ petition is accordingly disposed of."

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Order Date :- 23.2.2023 ank

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Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad

Hcp Gyanendra Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Hcp Gyanendra Kumar v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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