Allowed¶¶20

Vishwanath Shukla v. State of U.P. Thru. the Addl. Chief Secy. Home Deptt. Lko. and 2 Others

Recovery of excess payment – wrong fixation/redetermination of pay

Allahabad HC19 Feb 2024/1258/2023

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Case brief

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What is this about?

Allahabad High Court, Lucknow Bench (Manish Kumar, J.), WRIT - A No. 1258 of 2023, decided 19.2.2024: recovery of Rs. 3,25,299/- from a retired employee's post-retiral dues on account of mistaken wrong fixation of pay, made without hearing and without any misrepresentation or fault by the employee, is impermissible under Rafiq Masih (2015 (4) SCC 334), paragraph 18, conditions (i) and (ii); impugned order dated 01.09.2022 quashed with direction to refund within two months.

What did the court decide?

Impugned order dated 01.09.2022 quashed; respondents directed to pay Rs. 3,25,299/- withheld/recovered from the petitioner's post-retiral dues within two months from the date of production of a certified copy of the order. ¶¶20

Vishwanath Shukla Vs State of U.P. Thru. the Addl. Chief Secy. Home Deptt. Lko. and 2 Others — Allahabad HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the recovery of Rs. 3,25,299/- made from the petitioner's leave encashment/post-retiral dues on account of wrong fixation of pay (mistaken excess payment) is permissible in law, where the petitioner has retired and there is no misrepresentation or fault on his part.

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Court's answer

The recovery of Rs. 3,25,299/- made from the petitioner's post-retiral dues pursuant to the impugned order dated 01.09.2022 cannot be sustained, as the petitioner retired on 31.07.2022 and there was no misrepresentation or fault on his part in the wrong fixation/redetermination of his salary.

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Ratio / Principle

The petitioner's case is squarely covered by State of Punjab v. Rafiq Masih (White Washer), 2015 (4) SCC 334, particularly conditions (i) and (ii) of paragraph 18 (recovery impermissible from Class-III/IV employees and from retired employees), which the learned State Counsel was unable to distinguish.

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Key takeaways

The impugned order dated 01.09.2022 is quashed and the respondents are directed to pay the recovered/withheld sum of Rs. 3,25,299/- to the petitioner within two months of production of a certified copy of the order.ratio¶¶21

Detailed headnote1 paragraphs

Recovery of excess payment — wrong fixation/redetermination of pay — petitioner retired on 31.07.2022; impugned order dated 01.09.2022 redetermined his payscale and Rs. 3,25,299/- was recovered from his post-retiral dues (leave encashment) without opportunity of hearing and without any misrepresentation or fault on his part — recovery impermissible in law, the case being squarely covered by conditions (i) and (ii) of paragraph 18 of State of Punjab v. Rafiq Masih (White Washer), 2015 (4) SCC 334 — writ petition allowed; impugned order dated 01.09.2022 quashed; respondents directed to pay the recovered amount within two months of production of certified copy of the order.

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Neutral Citation No. - 2024:AHC-LKO:14518

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Court No. - 18

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Case :- WRIT - A No. - 1258 of 2023

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Petitioner :- Vishwanath Shukla

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Respondent :- State Of U.P. Thru. The Addl. Chief Secy. Home Deptt. Lko. And 2 Others Counsel for Petitioner :- Deepak Dwivedi,Sheshnath Bhardwaj Advoc

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Counsel for Respondent :- C.S.C.

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the petitioner as well as learned Standing Counsel.

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In the present writ petition, recovery of certain amount has been made from the amount of leave encashment of the petitioner which according to the State is on account of wrong fixation of pay of the petitioner, by mistake, resulting in excess payment to the petitioner.

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According to the petitioner, such recovery cannot be made as per the law laid down 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' , paragraph-18 of which provides:-

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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

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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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Since, the controversy involved is short and legal in nature hence the petition itself is being finally disposed of as no purpose would be served in keeping the matter pending. After the retirement of the petitioner i.e 31.07.2022, the payscale of the petitioner has been redetermined by the impugned order dated 01.09.2022. In consequence thereof, the recovery of Rs. 3,25,299/- was made from the post-retiral dues of the petitioner by passing the order, without providing any opportunity of hearing to the petitioner. It is also not the case that there was any misrepresentation or fault on the part of the petitioner in wrong fixation/redetermination of his salary. So keeping in view the aforesaid facts, the same cannot be recovered from the petitioner.

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The case of the petitioner is squarely covered by the decision/law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) , particularly by condition no. (i) & (ii) of the Hon'ble Supreme Court quoted in the earlier paragraph, which the learned State Counsel has been unable to distinguish.

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Accordingly, the writ petition is allowed .

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In view of the facts and circumstances discussed above, the impugned order dated 01.09.2022 is hereby quashed.

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Respondents are directed to ensure the payment of Rs. 3,25,299/- which has been withheld or recovered from the postretiral dues of the petitioner within a period of two months from the date of production of certified copy of this order.

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Order Date :- 19.2.2024 Mohd. Sharif

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Digitally signed by :- MOHAMMAD SHARIF High Court of Judicature at Allahabad, Lucknow Bench

Vishwanath Shukla v. State of U.P. Thru. the Addl. Chief Secy. Home Deptt. Lko. and 2 Others

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Vishwanath Shukla v. State of U.P. Thru. the Addl. Chief Secy. Home Deptt. Lko. and 2 Others

Case brief

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