# Kashi Prasad Shukla v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 1111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-17
- **Case number:** Writ-A No. 13368 of 2009
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-prasad-shukla-v-state-of-u-p-ors-46102
- **Pages:** 4

## Headnote

Law-Petitioner
retired-Only
90
%
gratuity/GPF paid and 10 % to be paid after
final settlement -after 5 years the impugned
recovery
order
passed-after
retirement
Respondent cannot proeed for recovery.

W.P. allowed. (E-7)
List of Cases cited: -

## Text

1 All. Kashi Prasad Shukla Vs. State of U.P. & Ors.
1111
Education Officer, Prayagraj, rejecting the
petitioner's
claim
for
compassionate
appointment,
is
hereby
quashed.
A
mandamus is issued to the District Basic
Education Officer, Prayagraj to consider
the petitioner's claim for compassionate
appointment, in accordance with law,
which shall mean without reference to her
marital status, within a period of two
months from the date of communication of
a copy of this order.

24. There shall, however, be no order as
to costs.

25. Let this order be communicated to the
District Basic Education Officer, Prayagraj by
the Joint Registrar (Compliance).
----------
(2021)01ILR A1111
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 13368 of 2009

Kashi Prasad Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kr. Srivastava, Sri Shiv Kumar Pal,
Sri Sushil Kumar Pal

Counsel for the Respondents:
C.S.C., A.S.G.I.

Civil
Law-Petitioner
retired-Only
90
%
gratuity/GPF paid and 10 % to be paid after
final settlement -after 5 years the impugned
recovery
order
passed-after
retirement
Respondent cannot proeed for recovery.

W.P. allowed. (E-7)
List of Cases cited: -

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

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. By means of this writ petition, the
petitioner
has,
inter-alia,
prayed
for
following reliefs:

"(i) issue a writ order or direction in
the nature of certiorari quashing the
recovery notice dated 26.8.2004 and
11.2.2009 (contained as Annexure Nos.1
and 3 to the writ petition) asking the
petitioner to pay Rs.2,13,838/- as an excess
payment of GPF to the petitioner;

(ii) issue a writ order or direction in
the nature of mandamus commanding the
respondents to not to initiate any coercive
measure against the petitioner till the
representation dated 11.09.2004 is decided
and considered by speaking and reasoned
order passed by the respondent no.4;

(iii) issue a writ order or direction in
the nature of mandamus directing the
respondent no.4 to release the 10% balance
amount of GPF to the petitioner forthwith."

2. The brief facts of the case are that
petitioner is a retired employee of the
respondents and he retired on 30.04.2004
on the post of Sub-Inspector of Motor
Transport while he was working under the
control
of
Superintendent
of
Police,
Fatehpur. Petitioner was provided GPF
Account
No.PU
72897.
The
GPF
contribution of the petitioner has regularly
been deducted by the respondents since
1964. After his retirement, the petitioner
has been paid GPF amount to the tune of
Rs.4,00,000/-. The said payment was made
only up to 90% gratuity/GPF and 10% was
to be paid after final settlement. Since the
petitioner retired on 30.04.2004, and as
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
such,
the
petitioner
has
moved
a
representation
on
03.07.2004
to
the
respondent authorities to release his 10% of
balance GPF amount. In pursuance of the
said representation, the respondents vide
order dated 26.08.2004 informed the
petitioner that he has been paid excess
amount of GPF to the tune of Rs.2,13,838/-
. In pursuance of the said order dated
26.08.2004, the petitioner has submitted a
detailed
reply
dated
11.09.2004
by
registered post as well as by hand before
the respondent no.4 requesting therein to
calculate the GPF amount as per details
mentioned in the said representation. The
said representation has not been decided by
the respondent no.4 and the same is still
pending consideration. On 04.10.2004, the
respondents have informed the petitioner
that Rs.3606/- has been paid to him by
Superintendent of Police, Pratapgarh. In
reply to the said notice dated 04.10.2004,
the petitioner has submitted a reply dated
03.11.2004 mentioning all the facts. After
sleeping over the matte for almost 5 years,
the respondent no.4 has illegally issued the
impugned demand notice dated 11.02.2009
asking
the
petitioner
to
deposit
Rs.2,13,838/- in pursuance of the order
dated 26.08.2004, hence, this writ petition.

3. Learned counsel for the petitioner
has
submitted
that
petitioner
has
superannuated on 30.04.2004 on the post of
Sub Inspector. After his retirement, firstly a
demand notice dated 26.08.2004 has been
issued and, thereafter, the impugned notice
dated 11.02.2009 has been issued to the
petitioner
informing
him
to
deposit
Rs.2,13,838/- as excess amount. Grievance
of the petitioner is that without considering
petitioner's reply, an order has been passed
directing recovery to be made from the
petitioner.
Learned
counsel
for
the
petitioner has further submitted that there is
no allegation of misrepresentation or fraud
practiced by the petitioner in the matter.
For the excess payment on the default of
the department, the same cannot be
recovered from the petitioner, hence, the
impugned
demand
notice
is
illegal,
arbitrary, malafide and unreasonable on the
part of the respondents and, therefore, the
same is liable to be quashed. Submission is
that after petitioner superannuated, no
recovery could have been effected in view
of the law laid down by Hon'ble Supreme
Court in State of Punjab and others vs.
Rafiq Masih (White Washer) 2015 4 SCC
334.

4. Learned Standing Counsel tried to
support the impugned order by drawing
attention to various Government orders,
however could not dispute the current legal
position as laid down by Hon'ble Apex
Court in the case Rafiq Masih (supra). He
could not point out that there was any
misrepresentation or fraud on the part of
the petitioner.

5. Heard learned counsel for the
petitioner, learned Standing Counsel for the
State and perused the material available on
record.

6. In any event, the law is well settled
by the latest judgment of the Apex Court in
State of Punjab and others vs. Rafiq
Masih (White Washer) 2015 4 SCC 334,
making it clear that recovery from the
retired employees or the employee who are
due to retire within one year of the order of
recovery, would be impermissible in law. In
this context, it is relevant to extract
paragraph 18 of the said judgment, which is
given as under:-

"18. It is not possible to postulate all
situations of hardship which would govern
1 All. Kashi Prasad Shukla Vs. State of U.P. & Ors.
1113
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 summarize 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.''

7. The Hon'ble Supreme Court of
India had consistently taken a view that in
respect of the retired employees as well as
Group-3 and 4 employees, excess payment
already
paid
cannot
be
recovered
considering the financial constraint of these
employees as well as the retired employees.

8. Admittedly, there does not appear
to be any case of misrepresentation or fraud
on part of the petitioner in the matter. This
is an also admitted fact that the petitioner
was allotted GPF Account No.PU 72897
and the GPF contribution of the petitioner
has regularly been deducted by the
respondents
since
1964.
After
his
retirement, the petitioner has been paid
GPF amount to the tune of Rs.4,00,000/-.
The said payment was made only up to
90% gratuity/GPF and 10% was to be paid
after final settlement.

9. In paragraph 5 of the counter
affidavit filed on behalf of respondent no.3,
it is stated that petitioner's GPF account
number is PU 72879 but in the district
Fatehpur, there is no record available
showing the GPF contribution from 1964 to
1978-79. It is further mentioned that from
1978-79, the entry with regard to GPF
contribution has been made in GPF
passbook of the petitioner.

10. It is categorically observed by the
Hon'ble Apex Court in the judgment that
recovery from the retired employees is
impermissible. As such in the present case
in hand where the petitioner is a retired
employee of respondents, recovery of the
amount so sought by the respondent cannot
be allowed.

11. Under these circumstances, this
Court is of the considered opinion that any
order, affecting the service rights or
conditions of an employee, cannot be
issued without providing an opportunity to
the employee concerned. This apart, the
petitioner is a pensioner and retired from
service on 30.04.2004. The petitioner is
now aged about 76 years. Under these
circumstances, any further recovery from
the pension of the petitioner would affect
his normal livelihood.

12. In the light of judgment of
Hon'ble Apex Court in the case of Rafiq
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
Masih (supra), if the case of the petitioner
is considered, as mentioned above, since he
retired from service, the respondents cannot
proceed against the petitioner with the
impugned order of recovery, therefore, the
impugned
recovery
notice
dated
26.08.2004 and 11.02.2009 (Annexure
Nos.1 and 3 to the writ petition) issued by
Officer
of
Accountant
General
Mahalekhakar (Lekha Evam Hakdari,) 1st
U.P., Allahabad through Senior Accountant
Nidhi-14, is not sustainable in the eye of
law and the same is hereby quashed and
remaining 10% balance amount of GPF be
paid to the petitioner within a period of two
months.

13. In view of vivid observations, this
petition stands allowed.

14. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
----------
(2021)01ILR A1114
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 19141 of 2019
Connected with Writ-A Nos. 21089 of 2019,
21101 of 2019, 19140 of 2019, 19150 of 2019
and 145 of 2020

Home Guard Resident No. 6901020120
Hriday Narayan Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailesh Verma

Counsel for the Respondents:
C.S.C.
Civil Law-Service of Petitioner dispensed
on account of pendency of the criminal
case
against
him-verification
of
antecedents is to find out whether he is
suitable for the post of a Home Guardpendency of criminal case-not suitable for
appointment of post of Home Gurad.

List of Cases cited: -

1. Arun Kumar Shukla Vs St. of UP & ors., 2018
2 ADJ 353

2.Riyasat Ali Vs St. of U.P. & ors. reported in
2003(4) AWC Page 3046

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. Since in all these writ petitions,
similar reliefs have been prayed, hence they
are being decided by a common order.

2. The facts of WRIT - A No. - 19141
of 2019 (Hriday Narayan Yadav Vs. State
Of U.P. And 02 Others) is taken as leading
case to decide the controversy.

3. The petitioner has instituted this
writ petition for issuance of writ of
certiorari for quashing the order dated
18.11.2019, whereby his engagement has
been dispensed with by respondent no. 3,
District Commandant of Home Guards,
Sonebhadra as well as the Government
Order
dated
21.08.2012
passed
by
respondent no. 2.

4. The brief facts of the case are that
petitioner is alleged to be appointed as
Home Guard under the provisions of UP
Home Guards Act, 1963. He was served a
show
cause
notice
regarding
his
involvement in criminal case, wherein after
investigation the Investigating Officer has
submitted charge sheet. The petitioner was
called upon to submit his reply within 15
days. The petitioner has submitted his reply