Allowed

Deo Prasad Dubey (H.C. No. 830490011) v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and 4 Others

Allahabad HC6 Dec 2024WRIA/7676/2024

Case brief

AI extract

What is this about?

A retired employee challenged recovery of Rs. 5,96,737 from his post-retiral dues made after pay redetermination, without any opportunity of hearing and without fault on his part. The court held the recovery impermissible per Rafiq Masih conditions (i) and (ii), quashed the impugned orders, and allowed fresh re-fixation after due hearing.

What the court decided

AI extract

Deo Prasad Dubey (H.C. No. 830490011) Vs… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:81721

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Court No. - 6

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Case :- WRIT - A No. - 7676 of 2024

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Petitioner :- Deo Prasad Dubey (H.C. No. 830490011) Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And 4 Others Counsel for Petitioner :- Sanjay Kumar Singh Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,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 pensionary benefits 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 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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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 31.07.2023, the payscale of the petitioner has been redetermined by the impugned order dated 30.05.2024. In consequence thereof, the recovery of Rs. 5,96,737/- was made from the post-retiral dues of the petitioner by passing the impugned order dated 01.07.2024, 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

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impugned orders dated 01.07.2024 and 30.05.2024 are hereby quashed.

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The writ petition succeeds and is allowed.

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The respondents are at liberty to pass a fresh orders re-fixing the salary of the petitioner after giving due opportunity of hearing. In case the petitioner raises any objection with regard to the ground of limitation that shall be specifically dealt with in the said order.

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. (Alok Mathur, J.)

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Order Date :- 6.12.2024 Virendra

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

Deo Prasad Dubey (H.C. No. 830490011) v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and 4 Others

Case brief

What is this about?

What the court decided

Deo Prasad Dubey (H.C. No. 830490011) v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and 4 Others

Case brief

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