Allowed

Asgar Ali v. State of U.P. Thru. Addil Chief Secy. Home Deptt. Civil Secrt. Lko. and 2 Others

Allahabad HC19 Feb 2024/1288/2023

Case brief

AI extract

What is this about?

This writ petition challenges the recovery of excess leave encashment from the petitioner's post-retiral dues following pay fixation. The High Court allowed the petition, quashing the recovery order due to lack of hearing and reliance on Supreme Court precedents protecting Class-III/IV and retired employees.

What did the court decide?

The impugned order dated 01.09.2022 was quashed and the petitioner is directed to receive Rs. 3,53,944/- within two months.

Asgar Ali Vs State of U.P. Thru. Addil… — Pension and Retirement Benefits | Allahabad HC (2024)

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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. - 1288 of 2023

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Petitioner :- Asgar Ali

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

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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 though he should have rightfully been required to work against an inferior

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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. 3,53,944/- 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. 3,53,944/- 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

Asgar Ali v. State of U.P. Thru. Addil Chief Secy. Home Deptt. Civil Secrt. Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Asgar Ali v. State of U.P. Thru. Addil Chief Secy. Home Deptt. Civil Secrt. Lko. and 2 Others

Case brief

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What did the court decide?

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