# Anirudh Prasad Chaudhary v. Joint Director, Agriculture, Basti Division Basti & Ors

- **Citation:** (2020) 10 ILRA 438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** WRIT - A No. 8273 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anirudh-prasad-chaudhary-v-joint-director-agriculture-basti-division-basti-ors-45353
- **Pages:** 4

## Headnote

A. Service Law - Recovery of salary
amount - A person cannot be asked to
repay the amount, which was not due to
him, but has been paid to him without any
misappropriation or fraud.

SC has held that recovery by the employers
would be impermissible in law from retired
employees, or employees who are due to retire
within one year, of the order of recovery. In the
present case, petitioner was to retire on
31.12.2019 and he was served with orders
dated 03.01.2019 and 09.05.2019 for recovery
of amount. Court observed that there has been
no misrepresentation or fraud on the part of the
petitioner and the recovery of amount would
cause great hardship to the petitioner. Hence,
quashed the impugned orders. (Para 4, 6-10)

Writ petition allowed.
10 All. Anirudh Prasad Chaudhary Vs. Joint Director, Agriculture, Basti Division, Basti & Ors. 439
Precedent followed:

## Text

438 INDIAN LAW REPORTS ALLAHABAD SERIES

63. To contend, as the learned
Counsel for the petitioner did, that even
after passing of the order of repatriation
petitioner is entitled to be considered for
absorption is unacceptable and contrary to
Regulation 5 which speaks of an offer of
absorption to be given to such officers and
employees "who are holding any post
provided under the Schedule", therefore, a
deputationist who has been repatriated to
his parent organisation is not entitled to be
considered as he does not hold any post
referred in the Schedule to the regulation
under UIDAI which includes the post of
Deputy Director on which the petitioner
was earlier working and as such he cannot
be offered absorption, specially as this
Court is upholding this repatriation. This
plea is also rejected.

64. This Court does not find any such
requirement of seeking approval of the
Chairman, UIDAI or the Minister of
Electronics and Information Technology,
Government of India before repatriating
any officer or employee in the Regulations,
2020. This plea is also rejected.

65. The decision to repatriate the
petitioner has been taken by the Chief
Executive Officer who was competent to
take such decision under Regulation 2(1)(b)
of Regulations, 2020 read with Section 18
(4) of the Act, 2016.

66. For all these reasons none of the
decisions cited by learned Counsel for the
petitioner come to his rescue. For the same
reasons, the order dated 28.05.2020 passed
by the Chief Executive Officer on the
representation of the petitioner also does
not require any interference.

67. In view of the above, this is not a
fit case for exercise of extraordinary
jurisdiction of this Court under Article 226
of the Constitution of India for interference
with the impugned order in favour of the
petitioner.

68. The writ petition is accordingly
dismissed.
----------
(2020)10ILR A438
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE
THE HON'BLE SHAMIM AHMED, J.

WRIT - A No. 8273 of 2019

Anirudh Prasad Chaudhary ...Petitioner
Versus
Joint Director, Agriculture, Basti Division
Basti & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Dharmraj Chaudhary

Counsel for the Respondents:
C.S.C.

A. Service Law - Recovery of salary
amount - A person cannot be asked to
repay the amount, which was not due to
him, but has been paid to him without any
misappropriation or fraud.

SC has held that recovery by the employers
would be impermissible in law from retired
employees, or employees who are due to retire
within one year, of the order of recovery. In the
present case, petitioner was to retire on
31.12.2019 and he was served with orders
dated 03.01.2019 and 09.05.2019 for recovery
of amount. Court observed that there has been
no misrepresentation or fraud on the part of the
petitioner and the recovery of amount would
cause great hardship to the petitioner. Hence,
quashed the impugned orders. (Para 4, 6-10)

Writ petition allowed.
10 All. Anirudh Prasad Chaudhary Vs. Joint Director, Agriculture, Basti Division, Basti & Ors. 439
Precedent followed:

1. Dr. Gopalji Mishra Vs St. of U.P. & ors., 2004
(2) ESC 791 (Para 6)

2. Dr. Avinash Chand Goel Vs St. of U.P. & ors.,
2011 5 ESC 3035 (Para 7)

3. Hansraj Singh & ors. Vs. St. of U.P. & ors.,
2015 (2) ADJ 581 (Para 8)

4. St. of Punj. & ors. Vs Rafiq Masih (White
Washers) etc., (2014) 8 SCC 883 (Para 9)

Petition
challenges
orders
dated
03.01.2019 and 09.05.2019, passed by
Joint Director, Agriculture, Basti Division,
Basti and District Plant Protection Officer,
District Sant Kabir Nagar.

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This writ petition under Article 226
of the Constitution of India has been filed
by the petitioner with the following
prayer:-

(I) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned orders dated 03.01.2019 and
09.05.2019 passed by the respondent nos. 1
and 2.

(II) Issue a writ, order or
direction in the nature of mandamus
restraining
the
respondents
from
recovering the amount as mentioned in the
impugned orders dated 03.01.2019 and
09.05.2019 passed by the respondent nos. 1
and 2.

(III) Issue a writ, order or
direction in the nature of writs, as this
Hon'ble Court may deem fit and proper to
meet ends of justice.

(IV) Award the cost of this writ
petition to the petitioner.

2. Learned counsel for the petitioner
submits that the petitioner was initially
appointed on the post of Assistant Soil
Conservation
Inspector
in
Agriculture
Department of the State Government under
the order dated 26.11.1982, in the pay scale
of Rs.400-615 and joined his post on
09.12.1982, since then he was performing
his duties and never been subjected to any
disciplinary proceedings or was awarded
any punishment by the department. By
virtue of sincere and devoted duties, the
petitioner was promoted from time to time
and was promoted on the post of Senior
Technical
Assistant
Group-B
and
in
pursuance thereof, he joined on the said
promoted post on 30.03.2016 in the office
of District Plant Protection Officer, Gonda
and thereafter, he was transferred to
District Sant Kabir Nagar on 01.09.2017.

3. Learned counsel for the petitioner
further submits that the petitioner was
holding Class-III post in the Agriculture
Department and his salary was voluntarily
fixed by the competent DepartmentalAuthorities from time to time, in which the
petitioner had no role. Learned counsel for
the petitioner further submits that the
petitioner is now been retired from service
on 31.12.2019 just before the retirement the
petitioner was served with orders dated
03.01.2019
and
09.05.2019
by
the
respondent nos.1 and 2 by which they have
directed
to
recover
an
amount
of
Rs.4,75,011/- from the salary of the
petitioner on account of alleged wrong
fixation of salary and paid in lieu thereof,
w.e.f. 02.06.2007 to December, 2018.

4. Learned counsel for the petitioner
further argued that the fixation of salary is
the duty of the State Authorities and there
is no role of the petitioner nor the petitioner
played any fraud or suppression of material
fact while the salary of the petitioner was
fixed and if any, excess payment in lieu
440 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof has been paid is deemed to the fault
of the State Authorities and the action of
the State Authorities in recovering the said
amount from the salary of the petitioner is
arbitrary, illegal and against the principles
of natural justice.

5. Learned Standing Counsel in
counter oppose the submissions made by
the learned counsel for the petitioner and
submitted that the excess payment made to
the petitioner was to be recovered in
accordance with law and the petitioner was
not holding that post for which the payment
was made, therefore, the impugned orders
by which the recovery is being made is
justified and no interference is required by
this Court.

6. Heard the learned counsel for the
parties and perused the record, in view of
the Court, it is not the case of the
respondents that the petitioner has drawn
the excess payment by playing fraud or by
misrepresenting
any
fact
before
the
authorities concerned, the excess payment
was made by the department cannot be
recovered on the ground that the petitioner
was not entitled for the same. In this regard
reliance is placed on the judgment rendered
by the Hon'ble Apex Court in the case of
Dr. Gopalji Mishra Vs. State of U.P. &
Others, 2004 (2) ESC 791 and was pleased
to hold as follows in paragraph 20:

"20. So far as the payment of
excess amount, which the petitioner was
not entitled is concerned, as there has been
no misrepresentation or fraud on the part
of the petitioner, he cannot be asked to
refund the same. More so, petitioner might
have spent the same considering his own
money. Recovery thereof would cause great
financial hardship to the petitioner. In such
circumstances, recovery should not be
permitted. [Vide Shyam Babu Verma and
Ors. v. Union of India and Ors. 1994 2
SCC 521; Sahib Ram v. State of Haryana
and Ors., 1995 Supp1 SCC 18 and V.
Gangaram v. Regional Joint Director and
Ors., 1997 AIR (SC) 2776]".

7. It is not out of place to mention
here that the basic proposition of law laid
down in the above decision has been
consistently followed by this Court time
and again and reiterated in Dr. Avinash
Chand Goel Vs. State of U.P. & Ors. 2011
5 ESC 3035 and in paragraph no.7, the
following observation was made:

"7. In the present case the
established principle of law, that a person
cannot be asked to repay the amount,
which was not due to him, but has been
paid to him without any misappropriation
or fraud, is squarely applicable. In this
case the petitioner had protested even to
the alleged wrong fixation of the pay. He
has given details of his entitlement for the
correctness of the applicability of the pay
scale and the benefits to be drawn by him
under the orders of the Supreme Court in
Chandra Prakash's case in, which not only
the seniority but consequential benefits
were also allowed to be given to those
medical officers who were to be given
promotions. In such case, the principle of
law 'no work no pay' will not be
applicable."

8. This Court in the case of Hansraj
Singh and Others Vs. State of U.P. and
Others reported in 2015 (2) ADJ 581, has
considered all the judgment in this regard
passed by the Hon'ble Apex Court.

9. It is also relevant to mention here
that in regard to the proposition of law laid
down by the Hon'ble Apex Court and the
10 All. Namit Kumar Pandey & Ors. Vs. State of U.P. & Ors.
441
different
High
Courts
there
arose
contradictions on the views of the Hon'ble
Judges and the stage of confusion started as
to which judgment be implemented for the
cause and the issue was settled by the
Hon'ble Apex Court in the case of State of
Punjab & Ors. Vs. Rafiq Masih (White
Washer) etc. 2014 8 SCC 883, and the
Hon'ble Apex Court considering all the
judgments passed earlier in this regard, was
pleased to pass the final direction and the
conclusion was given in paragraph no.12 of
the judgment, which is given as under:-

"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 employees,
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."

10. From the perusal of the proposition of
law laid down in the above mentioned
judgment of the Hon'ble Apex Court as well as
of this Court, established that the case of the
petitioner clearly fall in that category and is not
liable to refund any amount in pursuance of the
impugned orders passed by the respondent
authorities.
As
there
has
been
no
misrepresentation or fraud on the part of the
petitioner and petitioner could not be asked by
respondent to return the same, the recovery of
the amount would cause great hardship to the
petitioner.

11. Accordingly, the impugned orders of
recovery dated 03.01.2019 and 09.05.2019
passed by the respondent nos. 1 and 2 cannot be
sustained and are liable to be quashed.

12. With the aforesaid observations, the
writ petition is allowed and the impugned
orders dated 03.01.2019 and 09.05.2019 are
quashed.

13. No order as to costs.
----------
(2020)10ILR A441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2020

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

WRIT - A No. 10396 of 2019
with
WRIT - A No. 10448 of 2019
&
other connected cases

Namit Kumar Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents