Sri Krishn Yadav v. State Of U.P. And 5 Others

Petitioner :- Sri Krishn Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ramesh Chandra Tiwari Counsel for Respondent :- C.S.C. Hon'ble Saurabh Srivastava,J.

Instructions produced in Court today by learned Standing Counsel is taken on record.

Heard Shri Ramesh Chandra Tiwari, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

Present petition has been filed seeking the following reliefs:- "i) To issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 03.11.2022 passed by the Commandant, 28th Battalion PAC District Etawah i.e. Respondent no. 4 (Annexure No. 3 to this writ petition). ii) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to return the recovery amount Rs. 44,516/- deducted from the arrear of the petitioner as well as pay interest of arrears at the rate of 18% per annum till the date of actual payment. iii) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to call for HOB Register and the Dearness Allowance of the petitioner must be paid @ 38% and arrear of the same may be paid to the petitioner as per law. "

It is the case of the petitioner that he was initially selected and appointed on the post of Constable in U.P. Police on 20.12.1982 and thereafter he was promoted on the post of Head Constable in the year 2013 and retired on 31.10.2022 after attaining the age of superannuation.

Vide order dated 03.11.2022, the Commandant, 28th Battalion PAC District Etawah i.e. Respondent no. 4 directed recovery of Rs.44,516/- from the post retiral benefit of the petitioner which impugned the present petition.

Learned counsel for the petitioner submits that the aforesaid order of the respondent authority is in violation of principles of natural justice as no notice or opportunity of hearing was ever afforded to the petitioner and it is also well settled that amount once paid cannot be recovered unless the same was obtained by playing fraud, concealment or misrepresentation. He also relied upon the judgements passed by Hon'ble Apex Court as well as this Court in Syed Abdul Qadir & others Vs. State of Bihar and others [(2009) 3 SCC 475], State of Punjab and others Vs. Rafiq Masih: [2015 (4) SCC 334], Thomas Daniel Vs. State of Kerala and others [Live Law (SC) 438) and Brijendra Kumar Tripathi and others Vs. State of U.P. and others [2019 (4) ADJ 690 (LB)].

Learned Standing counsel vehemently opposed the submission, but could not dispute the facts so argued by the learned counsel for the petitioner as well as legal submission.

I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned order. Facts of the case are undisputed. Hon'ble Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute, had framed following guidelines:- "12. 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: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (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. (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. (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. "

Case of the petitioner is squarely covered with the judgment of Rafiq Masih (supra) and as such, the petitioner is not responsible for receiving excess payment as alleged by the respondents.

In view of the aforementioned facts and circumstances, 03.11.2022 passed by the Commandant, 28th Battalion PAC District Etawah i.e. Respondent no. 4 to recover the amount to the tune of Rs. 44,516/- from the petitioner is quashed and set aside. In case, excess amount has been recovered from the petitioner, the same shall be refunded within a period of two months from the date of production of a certified copy of this order before him.