Allowed

Uma Kant Tiwari v. State of U.P. Thru. Prin. Secy. Deptt. of Ayush Anubhag Civil Secrtt. Govt. of Up Lko. and 4 Others

Allahabad HC17 Jan 2024/2831/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing orders directing the recovery of Rs. 2,69,930/- as excess salary from a retired Class III employee. The Court held that such recovery orders are null and void if passed without an opportunity of hearing and violate the Apex Court's guidelines regarding recovery from such employees post-retirement.

What did the court decide?

Impugned recovery orders dated 23.03.2022 and 01.11.2021 were quashed; deducted amount of Rs. 2,69,930/- was directed to be paid with expedition.

Uma Kant Tiwari Vs State of U.P. Thru… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:5106

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Court No. - 18

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Case :- WRIT - A No. - 2831 of 2022

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Petitioner :- Uma Kant Tiwari Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Ayush Anubhag Civil Secrtt. Govt. Of Up Lko. And 4 Others Counsel for Petitioner :- Pradeep Kumar Shukla Counsel for Respondent :- C.S.C.

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Hon'ble Manish Kumar,J.

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Heard Shri Pradeep Kumar Shukla, learned counsel for the petitioner and learned Standing Counsel for the Staterespondents.

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By means of this petition the petitioner has prayed following reliefs :-

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" i. a writ, order or direction in the nature of certiorari to quash the impugned order dated 23.03.2022 passed by respondent no. 5 vide letter no. 3272/2021-2022, calling for recovery of Rs. 2,69,930/- from salary of petitioner allegedly paid in excess from the period of 01.12.2008 to 01.07.2021 and the impugned order dated 23.03.2022 passed by respondent no. 5 vide letter no. 3278/20212022 amending the pay fixation of petitioner since 01.12.2008 to 01.07.2021 alongwith pay fixation chart, which are in compliance of impugned order dated 01.11.2021 passed by respondent no. 4 contained as Annexure nos. 1 and 2 to this writ petition.

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ii) a writ, order or direction in the nature of certiorari to quash the impugned order dated 01.11.2021, passed by respondent no. 4 contained as annexure no. 3 to this writ petition.

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iii) a writ, order or direction in the nature of Mandamus commanding the opposite parties not to implement the impugned order dated 23.03.2022, passed by respondent no. 5 directing recovery of Rs. 2,69,930/- alongwith amended pay fixation chart since 01.12.2008 to 01.07.2021 contained as Annexure no. 1 to this petition".

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Shri Pradeep Shukla has contended that the impugned order dated 23.03.2022 passed by the opposite party no. 5 has been passed without affording any opportunity of hearing. He has further submitted that the petitioner retired from service on 31.12.2022 from the post of

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Pharmacist (Class III post) but the order of recovery has been issued on 23.03.2022 i.e. before one year of retirement of the petitioner.

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The petitioner has also assailed the order dated 01.11.2021 passed by the Director, Ayurvedic Services, U.P., Lucknow addressing to the Regional Ayurvedic and Unani Officer, Bahraich refixing the salary of the petitioner directing to pass appropriate consequential order against the petitioner. The order dated 23.03.2022 is a consequential order of the order dated 01.11.2021.

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While placing reliance on para 18 of the decision in re: State of Punjab and Ors. vs. Rafiq Masih (White Washerman) reported in (2015) 4 SCC page 334, Shri Shukla has submitted that even such recovery cannot be made against the petitioner in terms of the dictate of Apex Court in re: Rafiq Masih (supra).

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Undisputedly, the petitioner is a Class III employee retired on 31.12.2022 and the recovery against the petitioner is being made in the name of excess amount paid while he was in service without any representation or misrepresentation by him, the said benefit was provided by the department suo moto. Therefore, no recovery in the name of excess amount being paid can be made from a retired employee particularly, if such employee retires from Class III or IV post.

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Shri Shukla has submitted that pursuant to the impugned order dated 23.03.2022, the amount which was sought to be recovered i.e. Rs. 2,69,930/- was deducted only for the reason that he could receive his all post retiral dues. The petitioner was told that if he does not deposit the amount which has been sought to be recovered he shall not be paid his post retiral dues, therefore, under such compelling circumstances he has accorded consent.

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Learned Standing Counsel has, however, tried to justify the impugned order dated 23.03.2022 but no substantial ground or material could be shown to the Court to justify the impugned order.

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Having heard learned counsel for the parties, having perused the material available on record, I am of the considered opinion that no order of recovery or any order which has civil consequences can be passed without affording an opportunity of hearing and if such order is passed in violation of principles of natural justice the said

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order would be a nullity in the eyes of law.

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Besides, the Apex Court in re: Rafiq Masih (supra) has categorically directed that no recovery in the name of excess amount being paid to the employee under the category of Class III or Class IV may be executed after his retirement or when the employee is at the verge of retirement. In the present case the impugned order dated 23.03.2022 was issued when the petitioner was about to retire and its consequential order dated 23.03.2022 has been issued before the period of one year of the retirement of the petitioner, therefore, such order of recovery may not sustain in the eyes of law.

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In view of above, I hereby set aside / quash the order dated 23.03.2022 passed by the opposite party no. 5 and the order dated 01.11.2021, passed by opposite party no. 4, as contained in Annexure no. 1 and 3 to the writ petition respectively.

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So far as the order dated 01.11.2021, Annexure no. 3 is concerned, appropriate order may be passed by the competent authority after affording an opportunity of hearing to the petitioner but strictly as per law.

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Since, a sum of Rs. 2,69,930/- has already been deducted pursuant to order dated 23.03.2022 which has been quashed, therefore, the said amount shall be paid to the petitioner with expedition preferably within a period of three months from the date of production of certified copy of this order.

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Accordingly, the writ petition is allowed.

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No order as to costs.

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Order Date :- 17.1.2024 Ashish

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Digitally signed by :- ASHISH MISHRA High Court of Judicature at Allahabad, Lucknow Bench

Uma Kant Tiwari v. State of U.P. Thru. Prin. Secy. Deptt. of Ayush Anubhag Civil Secrtt. Govt. of Up Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Uma Kant Tiwari v. State of U.P. Thru. Prin. Secy. Deptt. of Ayush Anubhag Civil Secrtt. Govt. of Up Lko. and 4 Others

Case brief

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What did the court decide?

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