# Gulab Singh v. State of U.P. & Ors

- **Citation:** (2021) 5 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Writ -A No. 43109 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulab-singh-v-state-of-u-p-ors-47059
- **Pages:** 11

## Headnote

A. Civil Law - Uttar Pradesh State Road
Transport Corporation Employees (Other
Than Officers) Service Regulations, 1981 -
Disciplinary
proceedings
-
After
Retirement - No provision under the
Regulations
to
initiate
or
continue
disciplinary proceedings against a retired
employee of the Corporation - Postretirement,
the
relationship
of
an
employer and employee, or master and
servant, ceases - That relationship is a
sine
qua
non
for
the
exercise
of
disciplinary jurisdiction by the employers
(Para 12)
B.
Principle
of
Natural
Justice
-
Opportunity of hearing - adverse revision
or diminution in emoluments - any order
that visits a person with adverse civil
consequences, ought to be preceded by
opportunity - It is not the stigma of
punishment,
but
the
adversity
of
consequences
to
an
individual,
that
attracts the obligation of a State or of its
instrumentalities, to hear a person likely
to be affected before decision (Para 13)

By impugned order petitioner's emoluments were
revised downward, directing recovery of money paid
in excess - Held - Petitioner not confronted with
material on the basis of which he has been
subjected to an adverse revision / diminution in his
emoluments - To revise a Class III employee's
emoluments downwards and prejudicial to him after
retirement, on ground that at the time when he was
awarded a selection grade, some minor punishment
order/orders that disentitled him were not noticed,
would be inequitable - further recovery ought not to
be made because petitioner is a retired Class
III/Group C employee (Para 13, 16 )

Allowed. (E-4)

List of Cases cited :-

## Text

5 All. Gulab Singh Vs. State of U.P. & Ors.
211

Writ of Mandamus is issued
directing respondents not to recover excess
payment, if any, already paid to the
petitioners.

Writ of Mandamus is also issued
directing respondents to create a structure
of
cadre
by
providing
avenue
of
promotions from the post of Training
Officers, at the earliest.
----------
(2021)05ILR A211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ -A No. 43109 of 2015

Gulab Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.P. Sharma, Sri Ajay Kumar Srivastava,
Sri Samir Sharma

Counsel for the Respondents:
C.S.C, Sri M.P. Rai, Sri Sudhir Dixit, Sri U.S.
Singh Visen.

A. Civil Law - Uttar Pradesh State Road
Transport Corporation Employees (Other
Than Officers) Service Regulations, 1981 -
Disciplinary
proceedings
-
After
Retirement - No provision under the
Regulations
to
initiate
or
continue
disciplinary proceedings against a retired
employee of the Corporation - Postretirement,
the
relationship
of
an
employer and employee, or master and
servant, ceases - That relationship is a
sine
qua
non
for
the
exercise
of
disciplinary jurisdiction by the employers
(Para 12)
B.
Principle
of
Natural
Justice
-
Opportunity of hearing - adverse revision
or diminution in emoluments - any order
that visits a person with adverse civil
consequences, ought to be preceded by
opportunity - It is not the stigma of
punishment,
but
the
adversity
of
consequences
to
an
individual,
that
attracts the obligation of a State or of its
instrumentalities, to hear a person likely
to be affected before decision (Para 13)

By impugned order petitioner's emoluments were
revised downward, directing recovery of money paid
in excess - Held - Petitioner not confronted with
material on the basis of which he has been
subjected to an adverse revision / diminution in his
emoluments - To revise a Class III employee's
emoluments downwards and prejudicial to him after
retirement, on ground that at the time when he was
awarded a selection grade, some minor punishment
order/orders that disentitled him were not noticed,
would be inequitable - further recovery ought not to
be made because petitioner is a retired Class
III/Group C employee (Para 13, 16 )

Allowed. (E-4)

List of Cases cited :-

1. Rajendra Prasad Singh Vs St. of U.P. & ors.
Writ - A No. - 7517 of 2016 Dt 29.02.2016

2.
Dev
Prakash
Tiwari
Vs
U.P.
Coop.
Institutional Service Board, Lucknow & Ors
(2014) 7 SCC 260

3. Banda District Coop. Bank Ltd. & ors. Vs St.
of U.P. & ors. S.A.(D) No. 31 of 2016, dt
03.02.2016

4. St. of Pun & ors. Vs Rafiq Masih (White
Washer) & ors. (2015) 4 SCC 334

5. S.N. Mukherjee Vs U.O.I. (1990) 4 SCC 594

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner commenced his
career's journey as a Conductor with the
212 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar
Pradesh
State
Road
Transport
Corporation1. He was promoted to the post
of a Booking Clerk. He had a smooth ride
for the most part of his career until the fag
end of it. The petitioner served the
Corporation
from
01.12.1981
to
31.08.2014. While in service, the petitioner
was granted the first selection grade with
effect from 01.12.1991, on completion of
10 years continuous satisfactory service.
His pay-scale was revised accordingly. The
petitioner was granted a second selection
grade with effect from 01.12.2001, on
completion
of
20
years
continuous
satisfactory service, with a corresponding
revision of his pay. Again on 19.02.2013,
by means of an order of that date, the
petitioner was granted benefit of the third
Assured Career Progression2. He was
granted grade-pay of Rs. 4200/- with effect
from 01.12.2001. Upon grant of this ACP,
the petitioner's emoluments were revised
and he was also paid arrears.

2. Trouble for the petitioner began on
14.03.2014, when he was issued with a
charge sheet. It appears that at the relevant
time, the petitioner was deputed to do the
work of Issue Clerk in the Checking
Department at the Aligarh Establishment of
the Corporation. It was his duty to deposit
receipts
of
the
Corporation
in
the
Corporation Treasury on a single queue bus
service received on a daily basis. The
petitioner, however, was charged with
depositing the receipts of the Corporation
accumulated over a number of days, instead
of doing it daily. This was prima facie
found to be a violation of the rules of the
Corporation, besides an act of negligence.
The petitioner was charged, as already said,
on 14.03.2014, with violation of Rule 61
and 62 of the Uttar Pradesh State Road
Transport Corporation Employees (Other
Than Officers) Service Regulations, 19813.

3. The petitioner submitted a reply to
the charge sheet, denying all the charges
against
him.
Pending
disciplinary
proceedings, the petitioner retired, on
attaining the age of superannuation, on
31.08.2014. The departmental inquiry that
had been initiated against the petitioner
went ahead and an inquiry report was
submitted on 13.11.2014, according to
which, the petitioner was found negligent
in the performance of his duties. It was one
of the petitioner's defences that he did not
make the delay in deposit of receipts,
received bag-wise, of his own. It was done
that way on account of directions in this
regard, received from the then Assistant
Regional Manager, on 31.12.2011 and
18.01.2012. The said Officer of the
Corporation had instructed that when the
load factor was low, bag-wise deposit be
not made and the conductor concerned be
required to speak to him. It was further
directed that bag-wise deposit of receipts
be made only in the event the load factor
was 75%. It was explained that the delay in
depositing the receipts was on account of
these instructions and there was no
culpability on the petitioner's part.

4. The Assistant Regional Manager,
who held inquiry into the charges,
submitted
an
inquiry
report
dated
13.11.2014, holding the charges proved,
and the petitioner guilty of negligence in
the performance of his duties. The Regional
Manager of the Corporation at Aligarh,
without issuing a show-cause notice,
passed an order dated 29.11.2014, holding
the petitioner guilty of negligence. He
imposed a punishment of recovery of a sum
of Rs. 8,000/- from the petitioner, with a
warning for the future. This order is one of
the orders under challenge, the challenge
being introduced through amendment. By
an order dated 22.12.2014, the petitioner's
5 All. Gulab Singh Vs. State of U.P. & Ors.
213
gratuity was calculated by the Corporation,
determining it at a total sum of Rs.
6,39,178/-; but the sum of Rs. 8000/-
ordered to be recovered from the petitioner
was deducted from his gratuity. The order
dated
22.12.2014,
calculating
the
petitioner's gratuity to the extent that it
deducts a sum of Rs. 8000/- from the sum
payable, is also under challenge.

5. Mr. Samir Sharma, learned Senior
Advocate assisted by Mr. Ajay Kumar
Srivastava,
learned
counsel
for
the
petitioner, submits that the impugned
orders dated 29.11.2014 and 22.12.2014
represent one part of the petitioner's
grievance, that has two facets to it. The first
of the two orders is an order awarding him
punishment in departmental proceedings
illegally, and the other order deducts the
sum of Rs. 8000/- illegally from the
petitioner's gratuity, which, according to
Mr. Sharma, notwithstanding the validity of
the order of punishment, could not be
deducted from whatever money was
payable in gratuity to the petitioner. As it
appears, this was not the end of troubles for
the petitioner. By means of an order dated
20.06.2015,
without
affording
any
opportunity of hearing to the petitioner, the
first and the second selection grades and
the third ACP benefits paid to the petitioner
were modified, directing recovery of the
excess payments made. By this order of
20th June, 2015 the first selection grade
was awarded to the petitioner with effect
from 01.12.1993, instead of 01.12.1991,
and the second selection grade with effect
from 01.12.2007, instead of 01.12.2001.
All payments made in accordance with the
earlier date of award of the two selection
grades and the consequential third ACP
were directed to be recovered, as already
said. Thereafter, by an order dated
08.07.2015, close on heels of the order
dated
20.06.2015,
the
petitioner's
emoluments were revised and re-fixed,
directing recovery of the sum of money
paid in excess, going by the revised
calculation with effect from 01.12.1993.
The
orders
dated
20.06.2015
and
08.07.2015 are also under challenge in the
present writ petition. This downward
revision of emoluments for the petitioner
also led to redetermination of gratuity
payable to him. This was done by means of
an order dated 10.07.2015. Instead of the
gratuity originally determined and paid to
the petitioner in the sum of Rs. 6,39,179/-,
it was redetermined at a figure of Rs.
6,31,696/-. Thus, a sum of Rs. 7,482/- was
found to be paid in excess to the petitioner,
under the head of gratuity, in terms of his
redetermined
emoluments.
This
was
worked out by the order dated 10.07.2015,
passed again by the Assistant Regional
Manager, directing recovery of a sum of
Rs. 7,482/- from the petitioner, under the
head of gratuity paid in excess.

6. It is the petitioner's case and
apparently not in dispute that though the
gratuity
was
determined
prior
to
a
redetermination
of
the
petitioner's
emoluments at a figure of Rs. 6,39,179/-,
the entire amount was not paid to the
petitioner. It appears that a sum of Rs.
2,92,505/- had been withheld by the
respondents under the head of leave
encashment. The petitioner approached this
Court, by means of Writ - A No. 24726 of
2016, with a case that a sum of Rs.
2,92,565/- on account of gratuity had not
been released. This Court, by an order
dated 25.05.2016, summarily disposed of
the petition, with a direction to the
Regional Manager of the Corporation to
examine the petitioner's claims, noticed in
214 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court's order dated 25.05.2016, passed
in Writ - A No. 24726 of 2016, and to
decide the same by means of a reasoned
and speaking order, within a period of three
months from the date of presentation of a
certified copy of that order. In compliance
with the order dated 25.05.2016 passed in
Writ - A No. 24726 of 2016, the Regional
Manager,
Corporation
at
Aligarh,
considered the petitioner's representation
dated 02.06.2016, where he did a cursory
reappraisal of the order dated 20.06.2015,
whereby the petitioner's emoluments were
redetermined. He approved of that order. It
appears
also
from
the
order
dated
27.08.2016 that, what was withheld in the
sum of Rs. 2,96,656/- was not on account
of unpaid gratuity; it was due under the
head of leave encashment. In order to set
the record straight, it must be mentioned
that the fact that a sum of Rs. 2,96,565/-
was withheld by the respondents from the
gratuity dues of the petitioner, appears to
be an erroneous mention, because the
matter was summarily disposed of on the
basis of whatever the petitioner said; and,
being all that was before the Court.

7. A reading of the order dated
27.08.2016, it must be remarked here,
shows that dues of the petitioner that were
withheld, was a sum of money greater than
Rs. 2,96,565/-. This difference in the
petitioner's entitlement had come about as a
result of the direction to redetermine his
emoluments made on the basis of orders
dated 20.06.2015 and 08.07.2015, both
passed by the Regional Manager of the
Corporation at Aligarh. It transpires that the
Regional Manager of the Corporation has
proceeded to hold that Rs. 3,45,633/- is all
that has been determined towards excess
emoluments paid to the petitioner, on
account of a premature grant of the first
and the second selection grade as well as
the third ACP. He has directed recovery of
the sum of money of Rs. 3,45,633/- in the
manner that it is to be set-off against the
petitioner's entitlement to leave encashment
in the sum of Rs. 2,92,565/-, and a sum of
Rs. 11,568/- on account of arrears of the
Dearness Allowance, leaving a residue of
Rs. 41,500/-, which has to be recovered in
accordance with law. Challenge to the
order dated 27.08.2016 has also been
brought in through amendment. Thus, there
are six orders under challenge in the
present writ petition, to wit : the orders
dated 29.11.2014 and 22.12.2014, both
passed by the Regional Manager and the
Assistant Manager, Corporation at Aligarh,
respectively, punishing the petitioner post
retirement, in disciplinary proceedings; and
orders
dated
20.06.2015,
10.07.2015,
08.07.2015
and
27.08.2016,
all
in
substance,
revising
downwards
the
petitioner's
emoluments,
already
determined, and directing recovery.

8. The parties, having exchanged
affidavits when this matter came up on
10.12.2020, it was admitted to hearing, and
heard there and then. Judgment was
reserved.

9. Heard Mr. Samir Sharma, learned
Senior Advocate assisted by Mr. Ajay
Kumar Srivastava, learned counsel for the
petitioner, Mr. U.S. Singh Visen, learned
counsel appearing on behalf of respondent
nos. 2 and 3, and the learned Standing
Counsel appearing on behalf of respondent
no. 1.

10. Now, so far as the order dated
29.11.2014
passed
by
the
Regional
Manager of the Corporation at Aligarh,
punishing the petitioner in disciplinary
proceedings with the imposition of a
penalty of Rs. 8,000/- recoverable from his
5 All. Gulab Singh Vs. State of U.P. & Ors.
215
emoluments, along with a warning to be
careful in future is concerned, Mr. Sharma
submits that the said order is absolutely
without jurisdiction. It is the learned Senior
Counsel's
contention
that
disciplinary
proceedings in this case commenced on
14.03.2014, with the issue of a charge-sheet
to the petitioner. The petitioner filed a reply
to the charge-sheet, denying the charges.
Pending
disciplinary
proceedings,
he
retired on 31.08.2014, upon attaining the
age of superannuation. Notwithstanding the
petitioner's retirement, the departmental
inquiry was conducted and a report
submitted, holding the petitioner guilty of
negligence in the performance of his duties.
It is pointed out that the Disciplinary
Authority, the Regional Manager of the
Corporation at Aligarh, without issuing a
show-cause notice, proceeded to punish the
petitioner, by means of the impugned order,
in the manner hereinabove indicated. It is
argued by Mr. Samir Sharma, learned
Senior Advocate, that there is no provision
under the Regulations of 1981 to initiate or
continue disciplinary proceedings against a
retired employee of the Corporation. He
urges that the order of punishment dated
29.10.2014,
and
the
consequential
recovery, directed to be made from the
petitioner's gratuity vide order dated
22.12.2014, are without jurisdiction and
manifestly illegal. The stand of the
Corporation vis-a-vis the impugned order
dated 29.10.2014 is carried in their counter
affidavit filed in opposition to the amended
pleas. It is a counter affidavit filed by one
R.S.
Pandey,
the
Assistant
Regional
Manager,
Uttar
Pradesh
State
Road
Transport
Corporation,
Leader
Road,
Allahabad.
It
is
an
affidavit
dated
08.12.2020. The stand of the Corporation is
most startling. Paragraph no. 5 of the
counter affidavit under reference, in answer
to the amended Paragraph no. 13 of the
writ petition (described in the counter
affidavit as Para 3 (13)) says that no
departmental
proceedings
were
ever
initiated
against
the
petitioner,
or
conducted. It is stated that the order dated
08.07.2015
was
passed
because
the
petitioner had been wrongfully placed in a
higher pay scale. It does not mention at all
anything about the order dated 29.10.2014,
specifically.
But,
the
stand
of
the
Corporation
is
very
clear
that
no
departmental
proceedings
were
ever
initiated against the petitioner. Paragraph
no. 5 of the counter affidavit under
reference,
filed
on
behalf
of
the
Corporation, reads :

5. That the contents of paragraph
no.3 (13) of the Affidavit filed in support of
Amendment Application are false and
appear to be misconceived hence denied. In
reply thereto it is submitted that no
departmental enquiry was ever initiated
or conducted against the petitioner and
the order dated 08.07.2015 was passed
because the higher pay scale Rs. 1175259-1625 was granted to the petitioner on
01.12.1991 instead of 1175-25-1625 hence
the order dated 08.07.2015 was infact a
correction order and not the punishment
hence the amendments made in para 3(13)
is meaningless and is not covered by the
Ruling sited in the paragraph.
 (emphasis by Court)

11. Now, if that stand of the
Corporation were to be believed, the
petitioner never faced any disciplinary
proceedings. This Court has described that
stand of the Corporation as startling,
because a perusal of the order dated
29.10.2014,
passed
by
the
Regional
Manager of the Corporation at Aligarh
216 INDIAN LAW REPORTS ALLAHABAD SERIES
shows fair and square that it is an order of
punishment
passed
in
disciplinary
proceedings against the petitioner. There
could never be any doubt about the fact that
it is so. The fact that a State Corporation
like the U.P. State Road Transport
Corporation should take a stand like the
one in Para 5 of the counter affidavit filed
in response to the amended pleas is, to say
the least, most shocking. The said affidavit
has been filed by an Officer of the rank of
an Assistant Regional Manager. This Court
cannot go by the Corporation's stand that
they never passed the order of punishment
dated
29.11.2014,
or
ever
initiated
disciplinary
proceedings
against
the
petitioner. This Court has no option but to
ignore the Corporation's stand taken in
counter affidavit filed in answer to the
amended pleas, so far as the validity of the
order dated 29.11.2014 is concerned. This
virtually leaves the assertion of the
petitioner about the impugned order dated
29.11.2014 being without jurisdiction and a
nullity, as it was passed by the Corporation
after the petitioner's retirement, unrebutted.
This Court can safely take it to be
unrebutted that disciplinary proceedings
commenced against the petitioner on
14.03.2014, when the petitioner was still in
service, but concluded on 29.11.2014, after
he had retired from the Corporation's
service on 31.08.2014, upon attaining the
age of superannuation. However, the
petitioner's stand in law cannot be accepted
merely for the respondents failure to plead
that upon the petitioner's retirement, the
Corporation lost all jurisdiction to punish
him.
This
Court
has
examined
the
Regulations which govern the petitioner's
service
conditions.
There
is
nothing
apparent or brought to the Court's notice,
which may show that after retirement, the
employers have a continuing disciplinary
jurisdiction over their retired employee. For
a
legal
proposition,
retirement
upon
superannuation is one of the modes by
which the relationship of an employer and
employee comes to a terminus. Postretirement, the relationship of an employer
and employee, or master and servant,
ceases. That relationship is a sine qua non
for the exercise of disciplinary jurisdiction
by the employers. However, where the
tenure of an employee is governed by
Statute or statutory service rules or
regulations, provision may be made,
extending the disciplinary jurisdiction of
the employers beyond an employee's
retirement,
particularly
so,
where
proceedings have commenced prior to
retirement. But, in this case, nothing in the
Regulations point to a power of that kind
with the Corporation over their exemployees, who have superannuated and
retired from service. This question engaged
the attention of a learned Single Judge of
this Court in Rajendra Prasad Singh v.
State of U.P. and 4 Others4. Incidentally,
in Rajendra Pratap Singh (supra), a
decision
towards
which Mr.
Sameer
Sharma drew this Court's attention, it was
held by this Court, in the context of the
regulations, following a decision of the
Supreme Court in Dev Prakash Tiwari v.
Uttar Pradesh Cooperative Institutional
Service Board, Lucknow and others5 and
the decision of a Division Bench of this
Court in Banda District Cooperative
Bank Limited and 2 Others v. State of
U.P. and 2 Others6, thus :

On a pointed query of the Court,
the learned counsel for the appellant
candidly admitted that there was no
provision under the U.P. Cooperative
Service Regulation 1975, which may
authorize continuance of the proceedings
from the stage at which the defect has been
noticed nor is there any provision in terms
5 All. Gulab Singh Vs. State of U.P. & Ors.
217
of which the proceedings may be continued
and taken to their logical conclusion even
after the retirement of the petitioner. We
may in this connection refer to the law as
laid down by the Supreme Court in
Bhagirathi Jena Vs. Board of Directors,
O.S.F.C. & others4 as reiterated by the
Supreme Court in Deo Prakash Tewari Vs.
U.P. Cooperative Institutional Service
Board which clearly hold that once an
employee has retired from service, in the
absence of any authority vesting in the
employer the right to continue disciplinary
proceedings
thereafter,
the
enquiry
proceedings would be deemed to have
lapsed and the employee would be entitled
to all retiral benefits. In light of the above
law laid down by the Supreme Court, we
are unable to accede to the submission of
the learned counsel for the appellant for a
remit of the proceedings.

For the aforesaid reasons, we find
no ground warranting interference with the
judgment of the learned Single Judge. The
special appeal is consequently dismissed.

12. Now, the decision in Rajendra
Prasad Singh was concerned with the
respondent-Corporation
and
the
Regulations on the same issue of law as the
one that arises here. It was held on the
terms of the Regulations, going by
principles
that
had
endorsement
of
authority, that in the absence of provisions
in
the
service
rules
that
enabled
disciplinary
proceedings
to
continue
beyond
superannuation,
disciplinary
proceedings would be without jurisdiction.
In
Rajendra
Prasad
Singh,
the
Corporation had conceded to the aforesaid
position of law. Here, they have not at all
pleaded to it. Rather, they have pleaded
absurdly on facts to show that no order of
punishment was ever passed against the
petitioner,
or
disciplinary
proceedings
initiated against him. This Court has, for
itself, as already stated, examined the
Regulations, and is of opinion that there is
no jurisdiction with the Corporation to
proceed in disciplinary proceedings against
an employee, who retires pending such
proceedings, in the absence of provisions
enabling them in this behalf. Those
provisions are not there. As such, the order
dated 29.11.2014 passed by the Regional
Manager of the Corporation at Aligarh,
directing recovery dated 22.12.2014, is
absolutely without jurisdiction, and liable
to be quashed. The question whether
recovery can be made from the petitioners'
gratuity need not be answered here, as the
orders that gave rise to the issue have been
found to be vitiated by this Court. This
takes the Court to the validity of another
group of orders, the net effect of which is
to bring about a prejudicial or downward
revision of petitioner's emoluments, by
postponing grant for the first selection
grade, the second selection grade, and the
third ACP, as already indicated. The
substantive order, by which the petitioner's
emoluments were directed to be revised
downwards, is the order dated 20.06.2015.
This order was again passed by the
Regional Manager of the Corporation at
Aligarh. The other orders under challenge,
that seek to effect recovery of emoluments
paid in excess, that is to say, the orders
dated 10.07.2015 and 08.07.2015, are all
consequential orders. It is submitted by Mr.
Sameer Sharma, learned Senior Counsel for
the
petitioner,
that
the
order
dated
20.06.2015 has been passed without
opportunity of hearing to the petitioner, and
behind his back. It is his case that the order
aforesaid, being one adversely affecting the
petitioner's rights, could not be made,
218 INDIAN LAW REPORTS ALLAHABAD SERIES
without
affording
him
reasonable
opportunity of showing cause. It is
particularly submitted by Mr. Sharma that
the petitioner, being a Class-III employee,
who had been paid his emoluments as
determined by the Corporation, in terms of
pay fixation made in his favour from time
to time, the principle laid down by the
Supreme Court in State of Punjab &
Others v. Rafiq Masih (White Washer)
and others7 would prevent the Corporation
from recovering any emoluments paid in
excess. So far as the question regarding the
provision of opportunity is concerned, Mr.
U.S. Singh Visen submits that the order
dated
20.06.2015
only
involved
a
correction to the mistaken pay fixation. It
did not involve any punishment inflicted on
the petitioner. As such, no opportunity of
hearing was required. About the right of the
employer to recover, which is subject to
various exceptions carried in Rafiq Masih
(supra), Mr. Visen submits that the
petitioner being paid in excess of his due
emoluments, there is no equity in his
favour that may entitle him to the benefit of
the principles laid down in Rafiq Masih.

13. This Court has considered the
rival submissions. So far as the question of
opportunity of hearing is concerned, the
principle that any order that visits a person
with adverse civil consequences, ought to
be preceded by opportunity, is established
beyond cavil. It is not the stigma of
punishment,
but
the
adversity
of
consequences to an individual, that attracts
the obligation of a State or of its
instrumentalities, to hear a person likely to
be affected before decision. This principle
has particularly been laid down in the case
of S.N. Mukherjee v. Union of India8.
Thus, the submission advanced on behalf of
the Corporation that the order dated
20.06.2016, being not one of punishment,
but about the rectification of a mistake in
the
determination
of
the
petitioner's
emoluments, cannot be sustained. The
aforesaid decision does have the serious
civil
consequences,
adverse
to
the
petitioner by reducing his emoluments.
There is, however, one facet of the matter
about this issue. The petitioner earlier came
up before this Court through Writ - A No.
24726 of 2016, raising a grievance about
the Corporation, unauthorisedly holding his
gratuity in the sum of Rs. 2,96,565/-, for
the petitioner thought that what was
withheld was part of his gratuity; in fact, it
was leave encashment dues, as already
stated. This Court disposed of the writ
petition, directing the Corporation to
examine the petitioner's claim and decide
the same by means of a reasoned and
speaking order, within a specified period of
time. The Regional Manager of the
Corporation considered the petitioner's
representation dated 02.06.2016, that was
submitted to him, along with a copy of the
order passed by this Court in Writ - A No.
24726 of 2016. While passing the order
dated 27.08.2016, rejecting the petitioner's
claim, the Regional Manager, in one sense,
did hear the petitioner vis-à-vis the
substantive
order
dated
20.06.2015,
whereby
his
emoluments
suffered
a
downward revision. A perusal of the said
order shows that the petitioner was granted
the first and the second selection grade and
consequently, the third ACP, not because
he had not put in a requisite number of
years in service, but because he had to his
credit, three orders dated 17.09.1986,
30.04.1996 and 24.11.1997, by which his
annual increments for specified periods of
time were stopped. These orders, which
appear to be punishment orders, and
regarding which there is no pleading before
this Court, were not taken into account,
when the first and the second selection
5 All. Gulab Singh Vs. State of U.P. & Ors.
219
grade was granted to the petitioner. In the
opinion of this Court, denial of opportunity
would still be there, because the petitioner
was not specifically confronted with the
question that he had been granted the first
and the second selection grade in error,
ignoring the three increment stoppage order
of limited duration passed against him. Till
this adverse material was brought to the
petitioner's
notice,
the
order
dated
27.08.2016 is a hollow reiteration of the
order
dated
15.06.2020,
with
no
meaningful opportunity extended to the
petitioner.
The
vice
of
denial
of
opportunity, therefore, continues to vitiate
the order dated 27.08.2016, as much as it
does the order dated 20.06.2015. Quite
apart, this Court is of opinion that to revise
a
Class-III
employee's
emoluments
downwards and prejudicial to him after
retirement, on ground that at the time when
he was awarded a particular selection
grade, some minor punishment order/orders
that disentitled him were not noticed,
would be inequitable. It is here that the
other limb of Mr. Sharma's submissions
also becomes relevant, where it is urged
that the employers in this case ought not to
recover from the petitioner, a retired ClassIII employee, on the principles laid down in
Rafiq Masih.

14. In Rafiq Masih, the principles on
which the right of the employer to recover
depends, were laid down in the following
words by their Lordships of the Supreme
Court :

7. Having examined a number of
judgments rendered by this Court, we are of
the view, that orders passed by the employer
seeking recovery of monetary benefits
wrongly extended to the employees, can only
be interfered with, in cases where such
recovery would result in a hardship of a
nature, which would far outweigh, the
equitable balance of the employer's right to
recover. In other words, interference would
be called for, only in such cases where, it
would be iniquitous to recover the payment
made. In order to ascertain the parameters of
the above consideration, and the test to be
applied, reference needs to be made to
situations
when
this
Court
exempted
employees from such recovery, even in
exercise of its jurisdiction under Article 142
of the Constitution of India. Repeated
exercise of such power, "for doing complete
justice in any cause" would establish that the
recovery being effected was iniquitous, and
therefore, arbitrary. And accordingly, the
interference at the hands of this Court.

8. As between two parties, if a
determination is rendered in favour of the
party, which is the weaker of the two,
without any serious detriment to the other
(which is truly a welfare State), the issue
resolved would be in consonance with the
concept of justice, which is assured to the
citizens of India, even in the Preamble of
the Constitution of India. The right to
recover being pursued by the employer,
will have to be compared, with the effect of
the recovery on the employee concerned. If
the effect of the recovery from the
employee concerned would be, more
unfair, more wrongful, more improper, and
more unwarranted, than the corresponding
right of the employer to recover the
amount, then it would be iniquitous and
arbitrary, to effect the recovery. In such a
situation, the employee's right would
outbalance, and therefore eclipse, the right
of the employer to recover.

9. The doctrine of equality is a
dynamic and evolving concept having
220 INDIAN LAW REPORTS ALLAHABAD SERIES
many dimensions. The embodiment of the
doctrine of equality can be found in
Articles 14 to 18 contained in Part III of the
Constitution
of
India,
dealing
with
"fundamental rights". These articles of the
Constitution, besides assuring equality
before the law and equal protection of the
laws, also disallow discrimination with the
object of achieving equality, in matters of
employment; abolish untouchability, to
upgrade the social status of an ostracised
section of the society; and extinguish titles,
to scale down the status of a section of the
society,
with
such
appellations.
The
embodiment of the doctrine of equality, can
also be found in Articles 38, 39, 39-A, 43
and 46 contained in Part IV of the
Constitution of India, dealing with the
"directive principles of State policy". These
articles of the Constitution of India contain
a mandate to the State requiring it to assure
a social order providing justice--social,
economic and political, by inter alia
minimising monetary inequalities, and by
securing the right to adequate means of
livelihood, and by providing for adequate
wages so as to ensure, an appropriate
standard of life, and by promoting
economic interests of the weaker sections.

15.

After
considering
various
decisions, where the right of the employer
to recover had fallen for scrutiny, the
following principles were laid down in
Rafiq Masih :

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 hereinabove, 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.

16. It would appear that recovery
from the petitioner ought not to be made,
because the petitioner's case falls under the
first and the second classes of cases
adumbrated
in
Rafiq
Masih,
where
recovery of emoluments paid in excess, has
not been favoured. The petitioner is a Class
III/Group C employee, and at the same
time,
a
retired
employee
of
the
Corporation.

17. The orders dated 20.06.2015 and
27.10.2016 passed by Regional Manager of
Corporation at Aligarh, in the opinion of this
5 All. Anand Dwivedi Vs. H.C. Awasthi, D.G.P. & Ors.
221
Court, have not been able to purge
themselves of the vice of denial of
opportunity. The orders aforesaid would
clearly be bad, in the opinion of this Court, on
this score. An answer to the question whether
orders being found to be bad on ground of
denial of opportunity, should respondents be
given the logical right to hear the petitioner
afresh, confronting him with material on the
basis of which he has been subjected to an
adverse revision or diminution in his
emoluments, would ordinarily be in the
employer's favour. But, here is a case where
the petitioner is a retired Class-III employee,
who is exposed to the peril or a sufferance of
a diminution in his emoluments, because the
employers have committed a mistake in
reading his service records, while granting
him the first and the second selection grades.
In the opinion of this Court, it would be most
inequitable and illogical, at this distance of
time, to subject the petitioner to the otherwise
logical consequence of a callous mistake
made by the employers years ago, when the
petitioner was in their employ. This opinion,
this Court expresses, on the supposition that
if heard, the petitioner would still be subject
to a downward revision of his emoluments. It
is not known whether it would truly be so.
But in any view of the matter, the equities
that arise on the principles settled in Rafiq
Masih, the employers ought not to be
permitted to recover from the petitioner.

18. In the result, this writ petition
succeeds and is allowed. The orders dated
29.11.2014,
22.12.2014,
20.06.2015,
10.07.2015, 08.07.2015 and 27.08.2016,
variously passed by the Regional Manger and
the Assistant Regional Manager of the
Corporation at Aligarh, are hereby quashed.
The entire post-retiral benefits of the
petitioner, without any diminution to his
emoluments, shall be paid to him forthwith.

19. There shall, however, be no
order as to costs.
----------
(2021)05ILR A221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Contempt Application (Civil) No. 2632 of 2020

Anand Dwivedi ...Petitioner
Versus
H.C. Awasthi, D.G.P. & Ors..
 ...Opposite Parties

Counsel for the Petitioner:
Sri Saurabh Tripathi

Counsel for the Opposite Parties:
-----

The Contempt of Courts Act, 1971-Section
10-Contempt petition being filed before
Hon'ble High Court-for issuing contempt
for wilful disobedience of order passed by
the
Hon'ble
Supreme
Court-not
maintainable. (E-7)

List of Cases cited:-

1. Vitusah Oberoi & ors. Vs Court of Its Own
Motion; (2017) 2 SCC 314

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the
applicant.

2. Present contempt application has
been filed with following prayer:-

"It is therefore, Most respectfully
prayed that this Hon'ble Court may