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, whose husband had voluntary retired on 1st August, 2023 as Head Constable from U.P. Police, is aggrieved by the impugned order dated 21st June, 2024, whereby Rs.5,25,862/- has been adjusted from the commutation of pension of the petitioner's husband 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 petitioner's husband 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's husband never gave any undertaking before the authority at the time of pay fixation so as to fasten him and now her with obligation to pay back the excess amount and thus, according to her, her husband's 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's husband prior to passing of the order of re fixation inasmuch a direction for payment of excess amount was camouflaged in impugned order issued on 21st June, 2024. It is next contended that petitioner's husband died on 29th May, 2024 and the impugned order has been passed on 21st June, 2024 i.e. after the death of the petitioner's husband.

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 the facts as discussed above in the light of principles of law laid down in the above judgment, if the order impugned herein this petition is examined, I find that the excess amount has been adjusted towards the commutation of pension of the petitioner's husband and there is no whisper in the order that at any point of time petitioner's husband or even petitioner was ever afforded any opportunity of hearing before passing the order of pay- fixation.

8. Counter affidavit filed on behalf of State respondents is also equally silent as to whether petitioner' husband 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's husband stands covered by the judgment of Rafiq Masih (supra) and does not fall in the exception category carved 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 to act accordingly in the cases covered under the judgment of Supreme Court and of this Court. In the event any direction is issued by this Court settling a law point, the authorities are not supposed to violate the same and if they do so and that results in adverse civil consequences qua recovery, such recovered money deserves to be refunded to such employee or his successor along with interest.

11. In view of the above, the writ petition is allowed. The order impugned dated 21st June, 2024 is hereby quashed.

12. The amount recovered pursuant to the order impugned shall be refunded to the petitioner along with interest at the rate of 6% 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 12% from the date of delay till the date actual payment is made. Order Date :- 8.7.2025 Atmesh ATMESH KESARI 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, whose husband had voluntary retired on 1st August, 2023 as Head Constable from U.P. Police, is aggrieved by the impugned order dated 21st June, 2024, whereby Rs.5,25,862/- has been adjusted from the commutation of pension of the petitioner's husband 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 petitioner's husband 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's husband never gave any undertaking before the authority at the time of pay fixation so as to fasten him and now her with obligation to pay back the excess amount and thus, according to her, her husband's 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's husband prior to passing of the order of re fixation inasmuch a direction for payment of excess amount was camouflaged in impugned order issued on 21st June, 2024. It is next contended that petitioner's husband died on 29th May, 2024 and the impugned order has been passed on 21st June, 2024 i.e. after the death of the petitioner's husband.

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 the facts as discussed above in the light of principles of law laid down in the above judgment, if the order impugned herein this petition is examined, I find that the excess amount has been adjusted towards the commutation of pension of the petitioner's husband and there is no whisper in the order that at any point of time petitioner's husband or even petitioner was ever afforded any opportunity of hearing before passing the order of pay- fixation.

8. Counter affidavit filed on behalf of State respondents is also equally silent as to whether petitioner' husband 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's husband stands covered by the judgment of Rafiq Masih (supra) and does not fall in the exception category carved 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 to act accordingly in the cases covered under the judgment of Supreme Court and of this Court. In the event any direction is issued by this Court settling a law point, the authorities are not supposed to violate the same and if they do so and that results in adverse civil consequences qua recovery, such recovered money deserves to be refunded to such employee or his successor along with interest.

11. In view of the above, the writ petition is allowed. The order impugned dated 21st June, 2024 is hereby quashed.

12. The amount recovered pursuant to the order impugned shall be refunded to the petitioner along with interest at the rate of 6% 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 12% from the date of delay till the date actual payment is made. Order Date :- 8.7.2025 Atmesh ATMESH KESARI High Court of Judicature at Allahabad