# Kapil Dev Chaturvedi v. State of U.P. & Ors

- **Citation:** (2020) 8 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-24
- **Case number:** Service Single No. 24022 of 2018
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-dev-chaturvedi-v-state-of-u-p-ors-45944
- **Pages:** 4

## Headnote

A. Civil Law - Gratuity Act, 1972 -
Recoveries
under
the
Act
is
only
permissible
under
exceptional
circumstances. The petitioner was getting
higher grade pay till his retirement in the year

## Text

8 All. Kapil Dev Chaturvedi Vs. State of U.P. & Ors.
107

56. Learned counsel for the
petitioner has also raised this issue that
the landlord is only co-owner of the shop
in question, therefore, he cannot file
release
application,
which
is
not
acceptable in light of judgment of Apex
Court in the case of India Umbrella
Manufacturing Co. (supra) & Shabbir
Ahmed (supra). In both the matters, the
Court has clearly held that co-owner have
full right to file suit for eviction against
the tenant and even consent of co-owner
is not required to file suit. Therefore, this
argument of the learned counsel for the
petitioner is not acceptable and no relief
can be granted on this ground too.

57. There is finding of fact by both
the courts below in favour of the
landlord-respondent and in light of law
laid down by the Apex Court in the
matter of K.V.S. Ram (supra) the Court
has taken clear view that finding of fact
recorded
by
Tribunal
cannot
be
challenged in proceeding for a writ of
certiorari on the ground that the relevant
facts and material evidence adduced
before the Tribual was insufficient or
inadequate to sustain the impugned
finding. Case of landlord-respondent is
getting full support from this judgment.

58. In view of the above facts and
law laid down by the Apex Court as well
as this Court, I am of the view that no
good ground for interference is made out
by the petitioner. The judgment and
orders dated 24.09.2019 passed by XII
Additional District Judge, Kanpur Nagar
in Rent Appeal No. 26 of 2017ent and
06.04.2017
passed
by
prescribed
Authority/Judge Small Causes Court,
Kanpur in Rent Case No. 18 of 2014 are
affirmed. The writ petition is accordingly
dismissed. No order as to cost.

59. However, considering the long
tenancy of the petitioner-tenant, he is
granted time till 30th November, 2020 to
vacate the shop in question subject to
filing an undertaking on affidavit before
the Prescribed Authority within a period
of two weeks from today to deliver the
possession of shop in question on or
before the stipulated date
i.e. 30
November, 2020.
----------
(2020)08ILR A107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.07.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Service Single No. 24022 of 2018

Kapil Dev Chaturvedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vyas Narayan Shukla

Counsel for the Respondents:
C.S.C.

A. Civil Law - Gratuity Act, 1972 -
Recoveries
under
the
Act
is
only
permissible
under
exceptional
circumstances. The petitioner was getting
higher grade pay till his retirement in the year
2015. Post his retirement upto 7 months not
even a single penny was paid which intelled
extremely harsh consequences. The petitioner
was compelled to agree for lower grade pay
of Rs. 4,800/- instead of Rs. 5,400/- and also
for adjusting the payment of excess amount.
It was under these compelling circumstances
the petitioner, who was solely dependent on
post-retiral dues and his pension volunteer to
give in writing for such recoveries. The Court
find that no person of ordinary prudence
would accept such things in writing for
making recoveries and fix the pension in
lower grade pay than what he had been
108 INDIAN LAW REPORTS ALLAHABAD SERIES
getting till the last date in service. Therefore
much value cannot be given to such letter.
(Para 8, 11)
Writ Petition allowed. (E-10)

List of cases cited:-

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

(Delivered by Hon'ble Manish Kumar, J.)

(1) The present writ petition has
been filed by the petitioner for quashing
of the order dated 21.01.2016 passed by
Opposite
Party
No.3,
the
District
Development
Officer,
District
-
Sultanpur, directing the Opposite Party
No.4 the Senior Treasurer, District -
Sultanpur to recover/adjust the excess
payment
made
to
the
petitioner
amounting to Rs.2,48,673/- from his
gratuity amount and for a direction to the
Opposite Party No.2 to make payment of
gratuity amount along with interest,
which has been recovered/adjusted by the
impugned order dated 21.01.2016.

(2) The petitioner retired from the
post of Gram Vikas Adhikari (Class-III
Post) on 31.01.2015. An order dated
31.10.2012 was issued by Opposite Party
No.3, in which, the name of the petitioner
found place at Sr. No.10, by which, the
Grade Pay of the petitioner was upgraded
from Rs.4,800/- to Rs.5,400/- w.e.f.
01.12.2008
in
pursuance
of
the
Government Orders issued from time to
time and, thereafter, the petitioner had
started
getting
the
Grade
Pay
of
Rs.5,400/- till the date of his retirement.

(3) Learned counsel for the
petitioner has submitted that after about
one year of the retirement of the
petitioner, the impugned order dated
21.01.2016 has been issued by the
Opposite
Party
No.3
directing
the
Opposite Party No.4 to recover/adjust the
excess payment made to the petitioner
i.e. Rs.2,48,673/- from the gratuity
amount along with interest. It is further
submitted that the order dated 21.01.2016
has been passed in contravention of
principles of natural justice, since prior to
the passing of the order, neither any show
cause notice was given to the petitioner,
nor any opportunity of hearing was
provided.

(4) Learned counsel for the
petitioner has also placed reliance on the
judgement of Supreme Court in the case
of State of Punjab and others Vs. Rafiq
Masih (White Washer), reported in
[(2015) 4 SCC 334], to submit that no
recovery can be made from the Class III
and retired employees or the employees
who are due to retire within one year, of
the order of retirement and, that the case
is squarely covered by the said judgment.

(5) On the other hand, learned State
Counsel has made twofold submissions.
Firstly, that the impugned order dated
21.01.2016 has been passed in pursuance
of the order dated 04.09.2013 passed by
the Commissioner, Rural Development,
Lucknow, U.P., wherein, it was instructed
that the sanction of Grade Pay of
Rs.5,400/- to the petitioner was against
the provisions of relevant Government
Orders and directed for making recovery
of the amount paid in excess to the
petitioner, a copy of which has been
enclosed as Annexure No. CA-2 to the
counter affidavit. Secondly, that the
petitioner on 06.07.2015 requested the
Opposite Party No.3 for fixation of his
Grade Pay as Rs.4,800/- and to sanction
8 All. Kapil Dev Chaturvedi Vs. State of U.P. & Ors.
109
his pension after making deductions of
the amount paid to him in excess due to
wrong fixation of grade pay. It was only,
thereafter, that the Opposite Party No.3
vide its letter dated 10.09.2015 referred
the pension matter to the Additional
Director,
Treasuries
and
Pension,
Faizabad
Division,
Faizabad
for
sanctioning the pension, gratuity, etc.
along with the proposal to adjust the
amount paid in excess to the tune of
Rs.2,48,673/-.

(6) Heard Shir Vyas Narayan
Shukla, learned counsel for the petitioner
and learned State Counsel for the
opposite parties.

(7) As far as first argument of
learned State Counsel is concerned, the
Commissioner did not utter a single word
as to how and in what manner
Government Orders were violated while
passing order dated 31.10.2012 by which
higher grade pay was given to the
petitioner. The order was passed on
4.9.2013, but higher grade pay was
continued to be paid to the petitioner till
his retirement in the year 2015. The order
dated 04.09.2013 is addressed to the
District Development Officer, Allahabad,
even its copy was not endorsed to the
petitioner.

(8) As far as the second argument is
concerned, it is to be noted that the
petitioner retired on 31.01.2015 and upto
July, i.e. for about 7 months of retirement
not even a single penny was paid, which
intelled extremely harsh consequences to
the petitioner, rather he was required, as
stated in Para-4 of the rejoinder affidavit
(not disputed by the State), if the
petitioner wanted sanction of his pension,
the petitioner had to give an application
with the prayer that the petitioner agreed
for Grade Pay of Rs.4,800/- in place of
Grade Pay of Rs.5400/- and also for
adjusting the payment of excess amount.
It
was
under
these
compelling
circumstances
that
the
petitioner
succumbed to such pressure to overcome
his penury condition as a retired person,
who would be only dependent on his
post-retiral dues and his pension and he
was finding it difficult to make his both
ends meet. Otherwise, there was no
occasion to give any such thing in
writing by a person of ordinary prudence.
No person may himself, all of a sudden
and without any reason, volunteer to give
in writing for making recoveries, etc. and
fix the pension in lower grade pay than
what he had been getting till the last date
in service. Therefore, much value cannot
be attached to such a letter. The position
as explained about the said letter in the
rejoinder affidavit cannot be outrightly
said to be implausible, specially in the
circumstances of hardship which the
petitioner was going through during that
period.

(9) However, be that as it may, the
legal position is also well settled in the
case of State of Punjab and others Vs.
Rafiq Masih (White Washer) (supra),
law is clearly laid down as to the
circumstances in which recoveries from
retired
employees
is
impermissible
(emphasis supplied). The relevant para is
quoted hereinbelow: -

"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
110 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(10) The specific pleading and
submission on behalf of the petitioner is
that prior to the passing of the impugned
order,
at
no
point
of
time,
any
opportunity
was
provided
to
the
petitioner, the same has neither been
denied, nor disputed in the counter
affidavit. The position as emerges from
the record is that there is no allegation of
misrepresentation or fraud on the part of
the petitioner in the matter.

(11) The order for deduction from
the gratuity has been passed unmindful of
the Provisions of Gratuity Act, 1972,
which does not permit recovery from the
gratuity amount except with certain
exception. The case of the petitioner does
not fall under those exceptions.

(12) In view of the discussion held
hereinabove, the impugned order dated
21.01.2016 cannot be sustained and it is
set aside and the opposite parties are
directed to release the amount of
Rs.2,48,673/- with 7% interest to the
petitioner, calculated w.e.f. 31.01.2015
i.e. the date of retirement of the petitioner
till the date of actual payment made. The
opposite parties are further directed to
make payment within a period of three
months from the date of service of the
copy of this order.

(13) The writ petition is accordingly
allowed. No order as to the costs.
----------
(2020)08ILR A110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 38612 of 2017

Constable Rinku Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohammad Umar Khan

Counsel for the Respondents:
C.S.C.

A. Service Rule - Constitution of India -
Article 226 - Departmental/Disciplinary
Enquiry - The role of the Court in the matter
of departmental proceedings is very limited