# Court in Lal Kamlendra Pratap Singh v. State of U.P., the Full Bench in

- **Citation:** (2009) 1 ILRA 302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-26
- **Case number:** Civil Misc. Writ Petition No. 48406 of 2006
- **Bench:** S.R. Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-lal-kamlendra-pratap-singh-v-state-of-u-p-the-full-bench-in-41367
- **Pages:** 4

## Headnote

Constitution of India-Art.226-Recovery
of excess payment-petitioner not guilty
of concealment of fact or fraud pleaded-
after long period such amount cannot be
recovered.

Held: Para 6:

In the instant case, after more than a
decade the amount of alleged excess
payment is being sought to be recovered
from the petitioner, though it is not
disputed that for the said payment the
petitioner is not at fault and there is no
allegation of fraud or misrepresentation.
Case Law Discussed:
1979 ALJ 1184, 1994(2) SCC 521,1979 ALJ
1184, 1994(2) SCC 521, (1)SCC 149, 1997(1)
SC 353, 2002(3) SCC 302, 2006(1) UPLBEC
399, 2006(10) SCALE 1999.

## Text

302 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
from the investigating officer in the
meanwhile. Between the date of moving
of the surrender application and the date
fixed for appearance of the accused by the
Magistrate, the accused may not be
arrested without permission of the Court
concerned. In case the Magistrate is not in
a position to finally dispose of the bail on
the date fixed, he may consider releasing
the appellant on interim bail till the date
of final hearing of the bail application in
the light of the observations hereinabove.
This direction is needed to prevent all
accused persons whose cases do not fall
within the interdict of section 437 Cr.P.C.
rushing to this Court seeking protection,
and for this Court having to pass orders in
each individual case, creating a huge back
log of criminal writ petitions, which then
engage the attention of a number of
benches, and come in the way of disposal
of the large number of pending division
bench murder and other appeals.

15. With these observations the
petition is disposed of.

16. Copy of this order may be
circulated to all District Judges for
communication to all subordinate Courts,
so that the directions given by the Apex
Court in Lal Kamlendra Pratap Singh v.
State of U.P., the Full Bench in
Amarawati and hereinabove may be
followed by all subordinate Courts in
letter and spirit.

17. Copy of the order may be issued
to the parties on usual charges within 24
hours.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2009

BEFORE
THE HON'BLE S.R. ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 48406 of 2006

V.K. Upadhyaya

...Petitioner

Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Srivastava

Counsel for the Respondents:
Sri Ravi Ranjan
Sri Barun P. Singh
S.C.

Constitution of India-Art.226-Recovery
of excess payment-petitioner not guilty
of concealment of fact or fraud pleaded-
after long period such amount cannot be
recovered.

Held: Para 6:

In the instant case, after more than a
decade the amount of alleged excess
payment is being sought to be recovered
from the petitioner, though it is not
disputed that for the said payment the
petitioner is not at fault and there is no
allegation of fraud or misrepresentation.
Case Law Discussed:
1979 ALJ 1184, 1994(2) SCC 521,1979 ALJ
1184, 1994(2) SCC 521, (1)SCC 149, 1997(1)
SC 353, 2002(3) SCC 302, 2006(1) UPLBEC
399, 2006(10) SCALE 1999.

(Delivered by Hon'ble S.R.Alam, J.)

1. Aggrieved by the impugned order
dated 10th March 2006 (Annexure-1 to the
writ petition) and consequential order
dated 29.6.2006 whereby pay fixation of
1 All] V.K. Upadhyayai V. State of U.P. and others
303
the petitioner w.e.f. 01st July, 1986 has
been re-fixed on the ground that it was
earlier wrongly fixed and direction has
also been issued to recover the amount
allegedly paid in excess to the petitioner
on account of aforesaid wrong fixation.

2. Learned counsel for the petitioner
contended that there was no fraud or
misrepresentation
on
his
part.
The
mistake, if any, was committed by
respondents on their own and in these
circumstances after such a long time and
that too after his retirement no recovery of
the amount already paid, can be made,
though the rectification in respect to
fixation can always be done. He has
placed reliance on the decision in B.N.
Singh Vs. State of U.P. and another,
1979 ALJ 1184 and Sham Babu Verma
& another Vs. Union of India & others,
1994(2)SCC 521.

3. Respondents have filed counter
affidavit and on the basis of the averments
contained
therein,
learned
Standing
Counsel submitted that there was wrong
fixation on pay w.e.f. 01st July, 1986 and
after retirement of the petitioner when his
retiral dues were sought to be calculated
aforesaid mistake was detected and
accordingly the impugned order has been
issued. However, he could not show any
pleading of the respondents that the
aforesaid error was on account of any
fraud and misrepresentation on the part of
the petitioner.

4. We have heard learned counsel
for the parties and perused the record.
Learned counsel for the petitioner could
not show that in law he was rightly paid
by the respondents and he was entitled for
payment of salary in the manner it was
fixed w.e.f. 1.7.1986. However, the salary
and other benefits paid to the petitioner
after fixation w.e.f. 1.7.1986 is not on
account of any fraud of misrepresentation
on the part of the petitioner. If there is any
error or mistake committed by the
respondents, they may rectify the same
but cannot recover the alleged excess
amount already paid to the petitioner
since
the
same
has
already
been
consumed in catering to the need of
himself
and
his
family
members.
Moreover, in view of the law laid down in
B.N. Singh Vs. State of U.P. and
another 1979 ALJ 1184, Shyam Babu
Verma & another Vs. Union of India &
others, 1994(2) SCC 521 Gabriel Saver
Fernandes & others Vs. State of
Karnataka & others 1995 Suppl.
(1)SCC 149, Mahmood Hasan Vs. State
of U.P. JT 1997(1) SC 353, State of
Karnataka &another Vs. Manglore
University Non-Teaching Employees'
Association & others 2002(3) SCC 302,
Surya Deo Mishra Vs. State of U.P.
2006(1) UPLBEC 399, Purushottam
Lal Das & others Vs. State of Bihar and
others 006(10) SCALE 1999, such
amount cannot be recovered.

5. It has further been contended that
in any case, no order adverse to the
interest of the petitioner could be passed
without affording any opportunity and
thereof, the impugned order is in utter
violation of principles of natural justice.
In our view, once learned counsel for the
petitioner could not show that the salary
and other benefits which were paid to him
could be sustained having sanction of law
under any Rules or Regulations applicable
to the petitioner, in the circumstances, it
cannot be said that salary and other
benefits paid to the petitioner were being
paid rightly and the same could not have
been
corrected/rectified
by
the
304 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
respondents by passing an appropriate
order. If there is any error or mistake
committed by the respondents in fixation
of pay or payment of salary to its
employees such mistake can always be
rectified and principle of estoppel or
waiver etc. shall not apply in such cases.
Similarly in such a case, even the
principle of natural justice shall not be
attracted where the facts and legal
position is not disputed, the action or
order of the authority cannot be said to be
illegal for mere non compliance of
principles of natural justice. But where
simultaneously it is found that an
employee
has
been
given
certain
monetary benefits or salary by the
employer on its own or by its own
mistake and for which, the employee is
not responsible or has not played any
fraud or misrepresentation, the amount
paid in excess on account of such lapse or
mistake or employer should not be
recovered from the employee, particularly
after a long time. It is worthy to notice
that relief, i.e., restraining recovery of
excess amount is granted by Courts not
because of any right in the employee but
in
equity,
in
exercise
of
judicial
discretion, to relieve the employee from
the hardship that he would suffer if
recovery is implemented. Looking to this
aspect of the matter in Col. (Retd.)
B.J.Akkara Vs. Government of India
and others, JT 2006(9)SC125, the Apex
Court has observed:

"Such relief, restraining recovery
back of excess payment, is granted by
Courts not because of any right in the
employees, but in equity, in exercise of
judicial
discretion,
to
relieve
the
employees, from the hardships that will be
caused if recovery is implemented. A
government servant, particularly one in
the lower rungs of service would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess payment for a long period, he
would spend it genuinely believing that he
is entitled to it. As any subsequent action
to hardship to him, relief is granted in
that behalf. But where the employee had
knowledge that the payment received was
in excess of what was due or wrongly
paid, or where the error is detected or
corrected within a short time of wrong
payment, courts will not grant relief
against recovery. The matter being in the
realm of judicial discretion, courts may
on the facts and circumstances of any
particular case refuse to grant such relief
against recovery."

6. In the instant case, after more than
a decade the amount of alleged excess
payment is being sought to be recovered
from the petitioner, though it is not
disputed that for the said payment the
petitioner is not at fault and there is not
allegation of fraud or misrepresentation.

7. In the circumstances, the writ
petition is allowed. The impugned orders
dated 10.03.2006 and 29.06.2006 are
hereby quashed only to the extent they
have directed for recovery of excess
payment made to the petitioner. There
shall be no order as to costs. It is made
clear that for other purpose namely
calculation of the retrial benefits etc. for
the period subsequent to the impugned
order, the order impugned in this petition
shall have full effect and the payment
would be calculated accordingly.
---------
1 All] Shri Krishna Balmiki V. State of U.P.
305
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. Bail Application No.8873 of
2009

Shri Krishna Balmiki

...Applicant

Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri P.K.Singh

Counsel for the Opposite Party:
Sri V.Singh
Sri L.K.SINGH
A.G.A.

Code of Criminal Procedure-Section 439Bail Application offence under Section
303/366/504/506/376 I.P.C.-Objection
by
complainant
regarding
finding
recorded in Habeas Corpus petition in
which the girl found minor-custody given
to her father-held-no procedure adopted
regarding determination of age-simple
an observation-can be decided only in
trail-no allegation of threatening the
witness or affecting trail any mannerheld-entitled for bail.

Held: Para 12

The contention of the learned counsel for
the complainant therefore cannot be
accepted that the proof of the age of the
victim
stands
finally
accepted
and
recorded without anything more to be
done during trial. The acceptance of the
said argument would be defiance of law
as
expressed
by
the
Apex
Court
extracted above. The learned Single
Judge also cannot be presumed to have
adopted such a course that would
actually affect the trial. A writ petition of
the nature of Habeas Corpus cannot
partake the character of an alternative
remedy of a regular criminal trial or as a
substitute
parallel
proceeding
for
remedies under the statutory provisions
of the Criminal Procedure Code.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
applicant Sri P.K.Singh and Sri V. Singh
for the complainant and the learned
A.G.A.

2. Learned counsel for the applicant
contends that the applicant has been
implicated and as a matter of fact Habeas
Corpus Writ Petition No. 61371 of 2008
was filed by the father of the victim in
which an interim order was passed on
16.12.2008, copy whereof is Annexure 9
to the application.

3. The matter proceeded and the
applicant who was the respondent no. 3 in
the said writ petition was present in the
court along with the victim Laxmi Devi.
Whatever transpired in Court has been
recorded in the aforesaid order and
learned counsel for the applicant contends
that the victim had disclosed her age as 22
years and that she had married the
applicant Krishna Balmiki.

4.

Learned
counsel
for
the
complainant Sri V.Singh alleges that the
applicant is a married person and that he
has enticed away a minor daughter of the
complainant which is a serious offence
and, therefore, he does not deserve bail. It
is contended that when the aforesaid writ
petition was finally heard on 22.01.2009
this Court allowed the petition and handed
over the custody of Laxmi Devi is held to
be a minor being under 17 years of age.
On the strength of the said finding Sri
V.Singh has vehemently urged that the
bail should be rejected as the offence is