Allowed

Dr. Dinesh Kumar Singh v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Anubhag I U.P. Lko. and 3 Others

Allahabad HC26 Feb 2024/1442/2024

Case brief

AI extract

What is this about?

A single judge allowed the writ petition and quashed orders directing recovery of Rs. 4,61,724 from the petitioner's post-retiral dues. The court held that such recovery was impermissible under the Rafiq Masih principle, as it involved a retired employee and no undue hardship existed.

What did the court decide?

Impugned orders quashed and respondents directed to ensure payment of Rs. 4,61,724/- within two months.

Dr. Dinesh Kumar Singh Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:17254

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Court No. - 18

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Case :- WRIT - A No. - 1442 of 2024

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Petitioner :- Dr. Dinesh Kumar Singh Respondent :- State Of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Anubhag I U.P. Lko. And 3 Others Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Shiv Pratap Singh Counsel for Respondent :- C.S.C.

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the parties and perused the record.

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The present writ petition has been preferred for quashing of the impugned orders dated 26.06.2023, 11.07.2023 & 27.07.2023 passed by opposite party no. 2 and 3 as well as for quashing the directorate letter No. 683/401/6Audit dated 22.06.2023 passed by the respondent no. 2 whereby the recovery of Rs. 4,61,724 was made from the petitioner.

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Since the controversy involved is short and legal in nature hence the petition itself is being finally decided as no purpose would be served in keeping the matter pending.

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Learned counsel for the petitioner has very fairly submitted that for the payment of post retiral dues the undertaking was given but it is not an undertaking which was to be given at the time of pay fixation.

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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 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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Learned Standing Counsel on the basis instructions received from opposite party no. 4 has submitted that the petitioner had given an undertaking dated 01.08.2023 for deduction of amount of recovery shown in the impugned order in easy installments. He further submitted that he has not received any instructions at the time of fixation in the year 2011 any undertaking was given by the petitioner. The present undertaking given after the retirement is for the purpose of getting his other post-retiral dues and as such there was no undertaking given by the petitioner in the year 2011 when the pay was determined by the respondents.

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After the retirement of the petitioner, the payscale of the petitioner has been redetermined by the impugned order dated 11.07.2023. In consequence thereof, the recovery of Rs.4,61,724/- was made from the post-retiral dues of the petitioner by passing the impugned order dated 22.06.2023, 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 State of Punjab and others vs. 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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10.The impugned orders dated 26.06.2023, 11.07.2023 & 27.07.2023 are hereby quashed.

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Respondents are directed to ensure the payment of Rs. 4,61,724/- which has been withheld or recovered from the post-retiral dues of the petitioner within a period of two months from the date of production of certified copy of this

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order.

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Order Date :- 26.2.2024 DiVYa

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Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench

Dr. Dinesh Kumar Singh v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Anubhag I U.P. Lko. and 3 Others

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Dr. Dinesh Kumar Singh v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Ayush Anubhag I U.P. Lko. and 3 Others

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