Allowed

Shiv Kumar Trivedi v. State of U.P. Thru. Prin. Secy. Medical Health and Family Welfare, Lko. and 3 Others

Allahabad HC18 Mar 2024/1658/2023

Case brief

AI extract

What is this about?

Recovery of excess salary was made from a retired Assistant Research Officer's post-retiral dues without hearing. The court applied the Supreme Court's Rafiq Masih principles for retired and Class III/IV employees, quashed the recovery order and directed refund within two months.

What did the court decide?

Impugned recovery order dated 04.01.2023 quashed; respondents to pay back withheld/recovered Rs.14,19,711/- within two months.

Shiv Kumar Trivedi Vs State of U.P. Thru. Prin… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:23555

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Court No. - 18

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Case :- WRIT - A No. - 1658 of 2023

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Petitioner :- Shiv Kumar Trivedi

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Respondent :- State Of U.P. Thru. Prin. Secy. Medical Health And Family Welfare, Lko. And 3 Others Counsel for Petitioner :- Anuj Dayal,Reshu Sharma 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 order dated 04.01.2023 passed by opposite party no. 2 The Director General Family Welfare U.P. Lucknow whereby the recovery of Rs.14,19,711/- was made from the post retiral dues of 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 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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Learned Standing Counsel has submitted that an undertaking was given by the petitioner for deduction from the post retiral dues of the petitioner but it has been submitted very fairly that the undertaking given by the petitioner was for the purpose of getting the post retiral dues and not given at the time of initial fixation of the higher payscale of the petitioner.

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After the retirement of the petitioner from the post of Assistant Research Officer, which is Group "C" Non-Gazetted Post, the payscale of the petitioner has been redetermined and in consequence of the impugned order dated 4.1.2023, the recovery of Rs.14,19,711/- was made from the post-retiral dues of the petitioner 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, which the learned State Counsel has been unable to distinguish.

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Accordingly, the writ petition is allowed.

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The impugned order dated 4.1.2023 passed by opposite party no. 2 is hereby quashed.

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Respondents are directed to ensure the payment of Rs.14,19,711/- 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 order.

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Order Date :- 18.3.2024 S. Kumar

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Digitally signed by :- SANTOSH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Shiv Kumar Trivedi v. State of U.P. Thru. Prin. Secy. Medical Health and Family Welfare, Lko. and 3 Others

Case brief

What is this about?

What did the court decide?

Shiv Kumar Trivedi v. State of U.P. Thru. Prin. Secy. Medical Health and Family Welfare, Lko. and 3 Others

Case brief

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What did the court decide?

What the court decided

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