High Court · 2025

1. Heard learned counsel for the parties and perused the records.

2. By means of this petition filed under Article 226 of the Constitution, petitioner, who has retired as Sub-Inspector from U.P. Police, is aggrieved by the notice dated 20th November, 2023, whereby he has been directed to deposit back the amount that was paid in excess towards the salary on account of wrong fixation of pay.

3. Learned counsel for the petitioner has argued before the Court that he has not been responsible at any point of time for any wrongful pay fixation, nor at any point of time he misrepresented the matter before the competent authority. It is also argued that petitioner never gave any undertaking before the authority at the time of pay fixation so as to fasten him with obligation to pay back the excess amount and thus, according to him, his case does not stand covered under the exception carved out in a case of High Court of Punjab & Haryana and others v. Jagdev Singh, 2016 (14) SCC 267 by the Supreme Court while elaborating the principles contained in the judgment in the case of State of Punjab and others v. Rafiq Masih (White Washer) (2015) 4 SCC 334.

4. It is also contended by learned counsel for the petitioner that no notice or opportunity of hearing was given to the petitioner prior to passing of the order of re fixation inasmuch a direction for payment of excess amount was camouflaged in a notice issued to him dated 20th November, 2023.

5. A counter affidavit has been filed in the matter and only this much has come to be stated that petitioner could not have been given pay fixation which was accorded to him and hence the amount paid to him was in excess and, therefore, the recovery was justified one.

6. Considering the facts and circumstances of the case that the petitioner has retired, no recovery could have been ordered for any excess amount in the light of the directions issued by the Supreme Court in the case of Rafiq Masih (supra) in which vide paragraph 12 the Supreme Court has held thus: "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."

7. Considering upon the situation as discussed above with principles of law of the above judgment if the notice impugned herein this petition is tested, I find that petitioner has been directed to deposit back the excess amount and there is no whisper in the notice that at any point of time petitioner was ever afforded any opportunity of hearing before passing the order of pay- fixation.

8. The counter affidavit is also equally silent as to whether petitioner was ever required to furnish any undertaking at the time of pay fixation. The only stand taken is that petitioner was required to pay back the amount if any wrong assessment made at the time of passing of pension payment order.

9. In view of the above, therefore, I find that the case of the petitioner stands covered by the judgment of Rafiq Masih (supra) and does not fall in the exception category carve out in the case of Jagdev Singh's case and hence, the impugned order deserves to be quashed.

10. It is well settled principle of law that ignorance of law is no excuse and once the Supreme Court has laid down the law that every officer and authority working under the Government is bound by the said law and in the cases covered to the judgment of Supreme Court and of this Court and any directions issued by this Court the authorities are not supposed to violate the same and if they do so, they deserves to face ample civil consequences and such recovery deserves to be refunded back to such employee along with interest.

11. In view of the above, the writ petition is allowed. The notice- cum- order dated 20th November, 2023 is hereby quashed.

12. The amount recovered pursuant to the notice shall be refunded to the petitioner along with interest at the rate of 12% from the date of recovery was done till the actual payment is made, within a period of two months from the date of production of certified copy of this order.

13. It is made clear that if he does not paid the aforesaid amount as directed herein above, the petitioner would be entitled to further interest at the rate of 16% from the date of delay till the date actual payment is made. Order Date :- 23.5.2025 Atmesh ATMESH KESARI ATMESH KESARI ATMESH KESARI High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard learned counsel for the parties and perused the records.

2. By means of this petition filed under Article 226 of the Constitution, petitioner, who has retired as Sub-Inspector from U.P. Police, is aggrieved by the notice dated 20th November, 2023, whereby he has been directed to deposit back the amount that was paid in excess towards the salary on account of wrong fixation of pay.

3. Learned counsel for the petitioner has argued before the Court that he has not been responsible at any point of time for any wrongful pay fixation, nor at any point of time he misrepresented the matter before the competent authority. It is also argued that petitioner never gave any undertaking before the authority at the time of pay fixation so as to fasten him with obligation to pay back the excess amount and thus, according to him, his case does not stand covered under the exception carved out in a case of High Court of Punjab & Haryana and others v. Jagdev Singh, 2016 (14) SCC 267 by the Supreme Court while elaborating the principles contained in the judgment in the case of State of Punjab and others v. Rafiq Masih (White Washer) (2015) 4 SCC 334.

4. It is also contended by learned counsel for the petitioner that no notice or opportunity of hearing was given to the petitioner prior to passing of the order of re fixation inasmuch a direction for payment of excess amount was camouflaged in a notice issued to him dated 20th November, 2023.

5. A counter affidavit has been filed in the matter and only this much has come to be stated that petitioner could not have been given pay fixation which was accorded to him and hence the amount paid to him was in excess and, therefore, the recovery was justified one.

6. Considering the facts and circumstances of the case that the petitioner has retired, no recovery could have been ordered for any excess amount in the light of the directions issued by the Supreme Court in the case of Rafiq Masih (supra) in which vide paragraph 12 the Supreme Court has held thus: "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."

7. Considering upon the situation as discussed above with principles of law of the above judgment if the notice impugned herein this petition is tested, I find that petitioner has been directed to deposit back the excess amount and there is no whisper in the notice that at any point of time petitioner was ever afforded any opportunity of hearing before passing the order of pay- fixation.

8. The counter affidavit is also equally silent as to whether petitioner was ever required to furnish any undertaking at the time of pay fixation. The only stand taken is that petitioner was required to pay back the amount if any wrong assessment made at the time of passing of pension payment order.

9. In view of the above, therefore, I find that the case of the petitioner stands covered by the judgment of Rafiq Masih (supra) and does not fall in the exception category carve out in the case of Jagdev Singh's case and hence, the impugned order deserves to be quashed.

10. It is well settled principle of law that ignorance of law is no excuse and once the Supreme Court has laid down the law that every officer and authority working under the Government is bound by the said law and in the cases covered to the judgment of Supreme Court and of this Court and any directions issued by this Court the authorities are not supposed to violate the same and if they do so, they deserves to face ample civil consequences and such recovery deserves to be refunded back to such employee along with interest.

11. In view of the above, the writ petition is allowed. The notice- cum- order dated 20th November, 2023 is hereby quashed.

12. The amount recovered pursuant to the notice shall be refunded to the petitioner along with interest at the rate of 12% from the date of recovery was done till the actual payment is made, within a period of two months from the date of production of certified copy of this order.

13. It is made clear that if he does not paid the aforesaid amount as directed herein above, the petitioner would be entitled to further interest at the rate of 16% from the date of delay till the date actual payment is made. Order Date :- 23.5.2025 Atmesh ATMESH KESARI ATMESH KESARI ATMESH KESARI High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad