# Bahori Lal v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Writ-A No. 3446 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bahori-lal-v-state-of-u-p-ors-52420
- **Pages:** 6

## Headnote

A. Service Law - Post retiral dues -
Pension - Recovery - Where the pay or
other emoluments due to an employee is
determined and paid by the employer, and
subsequently the employer finds, (usually
on audit verification) that on account of
wrong understanding of the applicable
rules by the officers implementing the
rules, excess payment is made, courts
have recognised the need to give limited
relief in regard to recovery of past excess
payments, to reduce hardship to the
innocent employees, who benefited from
such wrong interpretation. (Para 9)

Recovery from the employees, when the excess
payment has been made for a period in excess
of five years, before the order of recovery is
issued as well as 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,
would
be
impermissible. (Para 9)

B. If any recovery has been proposed or
executed against the employee after his
retirement
or
at
the
time
of
his
retirement, such recovery may not be
permissible. If at the time of making
excess payment, if any, any specific and
categoric undertaking is received from the
employee, such amount may be recovered
but in absence of such undertaking at the
time of making excess payment, recovery
would be impermissible. (Para 10)

C. In terms of GO dated 16.01.2007, it has
been categorically indicated that at the
time of retirement or after the retirement,
record of the employee of last 34 months
may be examined, not beyond that, but in
the present case, record of the petitioner is
being examined from the year 2008, which is
much beyond the period of 34 months. (Para 6)

The impugned recovery is in violation of GO
dated 16.01.2007 (infra), which has been
interpreted and affirmed by the Apex Court in
re; Sushil Kumar Singhal (infra). Further, such
recovery has been executed in absence of any
specific undertaking of the present petitioner at
the time of making payment of such amount, if
any. (Para 11)

Writ petition allowed. (E-4)

Precedent followed:
9 All. Bahori Lal Vs. State of U.P. & Ors.
655

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES

11) Considering the fact, that initially
a writ petition was filed before the High
Court in the year 2000 which was
transferred to the Tribunal in 2017 and
thereafter, it came to be dismissed on
17.01.2024, we request the Tribunal to
grant priority to the hearing of this petition,
and we expect that the Tribunal shall hear
and decide the same within a period of five
months, as prayed by the petitioner's
Counsel, from the date a copy of this order
is served before it. We permit the parties
herein to bring on record, the pleadings
filed in this petition, before the Tribunal
within a period of four weeks from today,
for its convenience, which shall also be
taken into consideration accordingly. This
shall be done on affidavit.

12) The writ petition is accordingly
disposed of in the aforesaid terms.
----------
(2024) 9 ILRA 654
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 3446 of 2024

Bahori Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ravi Pratap Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Post retiral dues -
Pension - Recovery - Where the pay or
other emoluments due to an employee is
determined and paid by the employer, and
subsequently the employer finds, (usually
on audit verification) that on account of
wrong understanding of the applicable
rules by the officers implementing the
rules, excess payment is made, courts
have recognised the need to give limited
relief in regard to recovery of past excess
payments, to reduce hardship to the
innocent employees, who benefited from
such wrong interpretation. (Para 9)

Recovery from the employees, when the excess
payment has been made for a period in excess
of five years, before the order of recovery is
issued as well as 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,
would
be
impermissible. (Para 9)

B. If any recovery has been proposed or
executed against the employee after his
retirement
or
at
the
time
of
his
retirement, such recovery may not be
permissible. If at the time of making
excess payment, if any, any specific and
categoric undertaking is received from the
employee, such amount may be recovered
but in absence of such undertaking at the
time of making excess payment, recovery
would be impermissible. (Para 10)

C. In terms of GO dated 16.01.2007, it has
been categorically indicated that at the
time of retirement or after the retirement,
record of the employee of last 34 months
may be examined, not beyond that, but in
the present case, record of the petitioner is
being examined from the year 2008, which is
much beyond the period of 34 months. (Para 6)

The impugned recovery is in violation of GO
dated 16.01.2007 (infra), which has been
interpreted and affirmed by the Apex Court in
re; Sushil Kumar Singhal (infra). Further, such
recovery has been executed in absence of any
specific undertaking of the present petitioner at
the time of making payment of such amount, if
any. (Para 11)

Writ petition allowed. (E-4)

Precedent followed:
9 All. Bahori Lal Vs. State of U.P. & Ors.
655
1. Sushil Kumar Singhal Vs Pramukh Sachiv
Irrigation Department & ors., Civil Appeal No.
5262 of 2008 (Para 7)

2. Jagdish Prasad Singh Vs St. of Bihar & ors.,
2024 SCC OnLine 1909 (Para 9)

3. St. of U.P. & ors. Vs Suresh Kumar Tripathi,
Writ-A No. 3194 of 2022 (Para 10)

4. St. of Punj. & ors. Vs Rafiq Masih (White
Washer) & ors., (2015) 4 SCC 334 (Para 10)

5. High Court of Punjab & Haryana & ors. Vs
Jagdev Singh, (2016) 14 SCC 267 (Para 10)

Present
petition
assails
order
dated
14.03.2024, passed by opposite party
No.4.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ravi Pratap Singh,
learned counsel for the petitioner and Sri
Sandeep
Sharma,
learned
Standing
Counsel.

2. By means of this petition, the
petitioner has prayed following main
relief(s):-

 "(i) issue, a writ order or
direction in the nature of Certiorari
quashing the impugned letter/order dated
14.3.2024 issued by the opposite party
No.4, contained in Annexure No.1 to this
writ petition.

 (ii) issue, a writ order or
direction in the nature of Mandamus
commanding the respondents to pay
entire remaining post retiral dues as
well as service dues to petitioner like
gratuity, G.P.F. L.I.C. etc. alongwith
interest who has retired from the post
of
Junior
Engineer
i.e.
on
31.12.2023."
3. The precise contention of
learned counsel for the petitioner is that the
petitioner retired on 31.12.2023 and after
retirement,
impugned
notice
dated
14.03.2024 has been issued against the
petitioner
indicating
therein
that
the
petitioner has been paid excess amount
while providing him the benefit of pay
scale, with effect from 2001, therefore, the
excess amount to the tune of Rs.8,96,965/-
is directed to be recovered from the
petitioner.

4. Learned counsel for the
petitioner has submitted that the petitioner
retired from the post of Junior Engineer
which comes within the purview of ClassIII post and no opportunity of hearing has
been provided to the petitioner before
issuing the aforesaid impugned order dated
14.03.2024. Learned counsel has also
stated that at the time of excess payment no
undertaking
was
received
from
the
petitioner to the effect that if any excess
amount is paid to the petitioner the same
may be recovered.

5. Learned Standing Counsel has
tried to defend the impugned order, but he
has submitted that there is no recital in
impugned order that as to whether any
opportunity of hearing has been afforded to
petitioner or not or as to whether any
undertaking has been received from the
petitioner at the time of making excess
payment.

6. Learned counsel for the
petitioner has also submitted that in terms
of Government Order dated 16.01.2007,
which has been annexed as Annexure no.7
to the petition, wherein it has been
categorically indicated that at the time of
retirement or after the retirement, record of
the employee of last 34 months may be
656 INDIAN LAW REPORTS ALLAHABAD SERIES
examined, not beyond that, but in the
present case, record of the petitioner is
being examined from the year 2008, which
is much beyond the period of 34 months.

7. Attention has also been drawn
towards the judgment and order dated
17.04.2014 passed by the Apex Court in
Sushil Kumar Singhal Vs. Pramukh
Sachiv Irrigation Department & Others,
Civil appeal No.5262 of 2008, referring to
paragraphs 7, 10 and 11, which reads as
under:-

 "7.
Upon
perusal
of
the
aforestated G.O. and the submission made
by the learned counsel appearing for the
appellant, it is not in dispute that the
appellant had retired on 31st December,
2003 and at the time of his retirement his
salary was Rs.11,625/- and on the basis of
the said salary his pension had been fixed
as Rs.9000/-. Admittedly, if any mistake
had been committed in pay fixation, the
mistake had been committed in 1986, i.e.
much prior to the retirement of the
appellant and therefore, by virtue of the
aforestated G.O. dated 16th January, 2007,
neither any salary paid by mistake to the
appellant could have been recovered nor
pension of the appellant could have been
reduced.

 10. For the aforestated reasons,
we quash the impugned judgment delivered
by the High Court and direct the
respondents not to recover any amount of
salary which had been paid to the appellant
in pursuance of some mistake committed in
pay fixation in 1986. The amount of
pension shall also not be reduced and the
appellant shall be paid pension as fixed
earlier at the time of his retirement. It is
pertinent to note that the Government had
framed such a policy under its G.O. dated
16th January, 2007 and therefore, the
respondent authorities could not have taken
a different view in the matter of re-fixing
pension of the appellant.

 11. The submission made on
behalf of the learned counsel appearing for
the respondent that the appellant would be
getting more amount than what he was
entitled to cannot be accepted in view of
the policy laid down by the Government in
G.O. dated 16th January, 2007. If the
Government
feels
that
mistakes
are
committed very often, it would be open to
the Government to change its policy but as
far as the G.O. dated 16th January, 2007 is
in force, the respondent-employer could not
have passed any order for recovery of the
excess salary paid to the appellant or for
reducing pension of the appellant."

8. The Apex Court has interpreted
the purport and intent of Government Order
dated 16.01.2007 and has observed that the
respondent-employer could not have passed
any order for recovery of excess salary paid
to the appellant or for reducing the pension
of the appellant beyond such period.

9. Learned counsel for the
petitioner has also drawn attention towards
judgment passed by the Apex Court in
Jagdish Prasad Singh vs. State of Bihar
and Others 2024 SCC OnLine 1909
referring to paragraphs 21,22,23 and 24,
which reads as under:-

 21.We firmly believe that any
decision taken by the State Government to
reduce an employee's pay scale and
recover the excess amount cannot be
applied retrospectively and that too after a
long time gap. In the case of Syed Abdul
Qadir v. State of Bihar(2009) 3 SCC 475,
this Court held that when the excess
9 All. Bahori Lal Vs. State of U.P. & Ors.
657
unauthorised payment is detected within a
short period of time, it would be open for
the
employer
to
recover
the
same.
Conversely, if the payment had been made
for a long duration of time, it would be
iniquitous to make any recovery. The
relevant paras of the Syed Abdul Qadir
(supra) are extracted hereinbelow : -

 "57. This Court, in a catena of
decisions, has granted relief against
recovery
of
excess
payment
of
emoluments/allowances if (a) the excess
amount was not paid on account of any
misrepresentation or fraud on the part of
the employee, and (b) if such excess
payment was made by the employer by
applying a wrong principle for calculating
the pay/allowance or on the basis of a
particular interpretation of rule/order,
which
is
subsequently
found
to
be
erroneous.

 58. The relief against recovery is
granted by courts not because of any right
in the employees, but in equity, exercising
judicial discretion to relieve the employees
from the hardship that will be caused if
recovery is ordered. But, if in a given case,
it is proved that the employee had
knowledge that the payment received was
in excess of what was due or wrongly paid,
or in cases where the error is detected or
corrected within a short time of wrong
payment, the matter being in the realm of
judicial discretion, courts may, on the facts
and circumstances of any particular case,
order for recovery of the amount paid in
excess.

 59.
Undoubtedly,
the
excess
amount that has been paid to the appellant
teachers
was
not
because
of
any
misrepresentation or fraud on their part
and the appellants also had no knowledge
that the amount that was being paid to
them was more than what they were
entitled to. It would not be out of place to
mention here that the Finance Department
had, in its counter-affidavit, admitted that it
was a bona fide mistake on their part. The
excess payment made was the result of
wrong interpretation of the Rule that was
applicable
to
them,
for
which
the
appellants cannot be held responsible.
Rather, the whole confusion was because of
inaction, negligence and carelessness of
the officials concerned of the Government
of Bihar. Learned counsel appearing on
behalf of the appellant teachers submitted
that majority of the beneficiaries have
either retired or are on the verge of it.
Keeping in view the peculiar facts and
circumstances of the case at hand and to
avoid any hardship to the appellant
teachers, we are of the view that no
recovery of the amount that has been paid
in excess to the appellant teachers should
be made."

 (emphasis supplied)

 22. Similarly, this Court in ITC
Limited v. State of Uttar Pradesh(2011) 7
SCC 493, held as under : -

 "108. We may give an example
from service
jurisprudence, where a
principle of equity is frequently invoked to
give relief to an employee in somewhat
similar circumstances. Where the pay or
other emoluments due to an employee is
determined and paid by the employer, and
subsequently the employer finds, (usually
on audit verification) that on account of
wrong understanding of the applicable
rules by the officers implementing the rules,
excess payment is made, courts have
recognised the need to give limited relief in
regard to recovery of past excess payments,
658 INDIAN LAW REPORTS ALLAHABAD SERIES
to reduce hardship to the innocent
employees, who benefited from such wrong
interpretation."

 (emphasis supplied)

 23. In the case of State of Punjab
v. Rafiq Masih (White Washer)(2015) 4
SCC 334, this Court held as under : -

 "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:

 (i) Recovery from the employees
belonging to Class III and Class IV service (or
Group C and Group D service).

 (ii) Recovery from the retired
employees, or the employees who are due to
retire within one year, of the order of
recovery.

 (iii) Recovery from the 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."
 (emphasis supplied)

 24.
Recently,
this
Court
in
Thomas Daniel v. State of Kerala2022 SCC
OnLine SC 536, held that the State cannot
recover excess amount paid to the exemployee after the delay of 10 years.

10. Learned counsel for the
petitioner has also drawn attention of this
Court towards the judgment and order
dated 16.07.2024 passed by the Division
Bench of this Court in Writ-A No.3194 of
2022, State of U.P. and Others Vs.
Suresh Kumar Tripathi, whereby the
judgment of the Apex Court in re; Sushil
Kumar Singhal (supra) has been followed
dismissing the writ petition filed by the
State holding that if any recovery has been
proposed or executed against the employee
after his retirement or at the time of his
retirement in derogation of the dictum of
the Apex Court in re; Sushil Kumar
Singhal (supra) and State of Punjab and
others v. Rafiq Masih (White Washer)
and others, (2015) 4 SCC 334, such
recovery may not be permissible. Besides,
the judgment of Rafiq Masih (supra) has
been clarified by the Apex Court in re;
High Court of Punjab and Haryana and
others v. Jagdev Singh, (2016) 14 SCC
267, wherein it has been held by the Apex
Court that if at the time of making excess
payment, if any, any specific and categoric
undertaking is received from the employee,
such amount may be recovered but in
absence of such undertaking at the time of
making excess payment, the benefit of the
judgment in re; Rafiq Masih (supra)
would be provided to the employee
concerned.
9 All. Rajesh Kumar Vs. State of U.P. & Ors.
659
11. Having heard learned counsel
for the parties and having perused the
material available on record, I am of the
considered opinion that the impugned
recovery is in violation of Government
Order dated 16.01.2007 (supra), which has
been interpreted and affirmed by the Apex
Court in re; Sushil Kumar Singhal
(supra). Further, such recovery has been
executed in absence of any specific
undertaking of the present petitioner at the
time of making payment of such amount, if
any, therefore, the petitioner would be
entitled for the benefit of the dictum of the
Apex Court in re; Rafiq Masih (supra) ,
Jagdev Singh (supra) and Jagdish
Prasad Singh (supra) .

12. Accordingly, the writ petition
is allowed

13. The impugned order dated
14.03.2024 passed by opposite parties no.3
are hereby set aside/ quashed.

14. The opposite parties are
directed to repay/refund the amount which
has been deducted from the petitioner
forthwith, preferably within a period of six
weeks from the date of receipt of certified
copy of this order, failing which the
petitioner would be entitled for the interest
on the delayed payment at the rate of 8%
p.a.

[Before parting with, I appreciate
the efforts and research made by Shri
Piyush
Tripathi,
Research
Associate
attached with me, in finding out the
relevant case laws applicable in the present
case.]
----------
(2024) 9 ILRA 659
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2024
BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 4566 of 2019

Rajesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhishek Gupta, Alok Shukla, Prabhakar
Awasthi

Counsel for the Respondents:
C.S.C., Devesh Kumar Shukla, Dharmesh
Kumar Shukla, Pankaj Agarwal, Sharad
Saran Srivastava, Shekhar Gangal

A. Service Law - Removal - U.P. Nagar
Palika
Parishad
Employees
(Enquiry,
Punishment and Removal) Rules, 1960 -
U.P. Government Servant Discipline and
Appeal Rules, 1999 - There is a well laid
rule i.e. Rule 7, providing for a detailed
procedure as per the U.P. Government
Servant Discipline and Appeal Rules, 1999
to be followed for inviting a penalty which
is major in nature.

1.
The
facts
constituting
the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges to be called
charge-sheet. The charge-sheet shall be
approved by the disciplinary authority...

2. The charges framed shall be so
precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith
oral evidence, if any, shall be mentioned in
the charge-sheet.

3. Where the charged Government
servant denies the charges, the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charged Government servant who shall be