# Lakhan Lal Gupta v. State of U.P. and others

- **Citation:** (2013) 1 ILRA 419
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-27
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-lal-gupta-v-state-of-u-p-and-others-42521
- **Pages:** 6

## Headnote

Constitution of India, Art.-226- Recovery
of excess amount-on ground of wrong
fixation-after
four
years
from
the
retirement-without disclosing any reasonwithout affording opportunity of hearingno allegation of misrepresentation against
petitioner- a class 4th employee-heldimpugned order wholly arbitrary illegalquashed.

Held: Para-14 & 23

14-It
is
trite
law
that
if
any
administrative or qusi judicial order
which entails civil consequences, then
the person is entitled for opportunity
before any such order is passed. Having
regard to evidence on record, it can be
safely
held
that
there
is
complete
violation of principles of natural justice
in the present case, and on this ground
alone,
the
impugned
order
is
unsustainable.

23- That order is also vitiated for another
reason; The petitioner is retired Class-IV
employee, the impugned order has been
passed after four years of his retirement.
It may be that due to inadvertent
mistake by authority concerned, he was
granted higher pay scale.

Case Law discussed:
(1991)1 SCC 588; AIR 1978 SC 851; (1969) 2
SCC 262; AIR 1981 SC 818; (2011)2 SCC 258;
2010(9)SCC
496;
2010
(9)SCC
486;
2003(11)SCC 519; AIR 1990 SC 1984; (2012)8
SCC 417; (2009)3 SCC 475; 1995 Supp. (1)
SCC 18; [1994] 2 SCC 521; [1996] 4 SCC 416;
[1997] 6 SCC 139; (2006) 11 SCC 709; [2006]
11 SCC 492; [2006] 8 SCC 647; [2000] 10 SCC
99

## Text

1 All Lakhan Lal Gupta Vs. State of U.P. and others
419

27. In view of the aforesaid, the
award of the labour court is modified, the
Court further directs the employer to
reinstate the workman within four weeks
from today, from which date, the
petitioner would be entitled for wages.

28. The writ petition is allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 39495 Of 1998

Lakhan Lal Gupta
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Hariom Khare

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Recovery
of excess amount-on ground of wrong
fixation-after
four
years
from
the
retirement-without disclosing any reasonwithout affording opportunity of hearingno allegation of misrepresentation against
petitioner- a class 4th employee-heldimpugned order wholly arbitrary illegalquashed.

Held: Para-14 & 23

14-It
is
trite
law
that
if
any
administrative or qusi judicial order
which entails civil consequences, then
the person is entitled for opportunity
before any such order is passed. Having
regard to evidence on record, it can be
safely
held
that
there
is
complete
violation of principles of natural justice
in the present case, and on this ground
alone,
the
impugned
order
is
unsustainable.

23- That order is also vitiated for another
reason; The petitioner is retired Class-IV
employee, the impugned order has been
passed after four years of his retirement.
It may be that due to inadvertent
mistake by authority concerned, he was
granted higher pay scale.

Case Law discussed:
(1991)1 SCC 588; AIR 1978 SC 851; (1969) 2
SCC 262; AIR 1981 SC 818; (2011)2 SCC 258;
2010(9)SCC
496;
2010
(9)SCC
486;
2003(11)SCC 519; AIR 1990 SC 1984; (2012)8
SCC 417; (2009)3 SCC 475; 1995 Supp. (1)
SCC 18; [1994] 2 SCC 521; [1996] 4 SCC 416;
[1997] 6 SCC 139; (2006) 11 SCC 709; [2006]
11 SCC 492; [2006] 8 SCC 647; [2000] 10 SCC
99

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. By way of this petition, a ClassIV employee who retired from his service
way back in 1998, is seeking to impugn
an order for recovery of excess amount
paid to him.

2. A few facts may be set out, which
would be relevant for considering the
issue which arise in present case are:

3. The petitioner was initially
appointed as Class-IV employee on
31.12.1962 in Horticulture Department. It
is stated that his service record was
excellent. After completing 12 years of
service, petitioner was granted selection
grade on 01.05.1984 and after 16 years,
he was sanctioned higher pay scale of Rs.
775- 1025 on 01.05.1990. A copy of the
order dated 14.06.1990 is Annexure-1 to
the writ petition.
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

4. The petitioner's case is that in
terms of the another Government Order
dated 19.06.1993, the petitioner was
allowed higher pay scale i.e Rs. 975-1660
from 01.05.1990. The said Government
Order is Annexure-2 to the writ petition.
The petitioner continued to draw the
higher scale in compliance of the order
dated 16.08.1994 till he reached his age of
superannuation on 31.01.1998.

5. It is stated that by the impugned
order, the earlier order dated 16.08.1994
whereby, the petitioner was given higher
pay scale of 975-1660 has been cancelled.

6. A counter affidavit has been filed
on behalf of the State. It is stated in the
counter
affidavit
that
in
view
of
Government Order dated 03.06.1989, a
Class-IV employee was not entitled for
promotion in higher grade i.e. Rs. 9751660. For the said reason, the order has
been cancelled.

7. I Have heard Sri Hariom Khare,
learned counsel for the petitioner and
learned standing counsel.

8. Learned counsel for the petitioner
submits that there was no allegation
against the petitioner that he has made
misrepresentation of fact or he was aware
about
wrong
calculation.
Petitioner
belong to Class-IV service. The impugned
order is arbitrary and illegal as it has been
passed after the retirement of the
petitioner
without
affording
any
opportunity to the petitioner. Since order
has
been
passed
without
notice/opportunity, it is nullity.

9. Learned counsel for the petitioner
has drawn the attention of the Court to
paragraph 8 of the writ petition wherein, it
is stated that no notice or opportunity was
given
to
the
petitioner
prior
the
cancellation
of
the
order
dated
16.08.1994.

10. Learned standing counsel
submits that the order granting higher pay
scale has been rightly recalled as the
petitioner was not entitled for higher pay
scale. He has further submitted that the
mistake was committed by respondent has
been rectified, therefore, there is no
illegality.

11. I have considered the rival
submissions of learned counsel for the
parties and perused the record.

12. Indisputably, the petitioner was
granted the higher pay scale by the
Competent
Authority,
the
Deputy
Director. The said order has been
cancelled
after
four
years
of
the
retirement of the petitioner.

13. From the perusal of the
impugned order, it is evident that no
reason has been mentioned in the
impugned order. It is also established
from the pleadings that the petitioner was
not given any opportunity of hearing. The
statement of fact made by the petitioner in
paragraph 8 of the writ petition has not
been specifically denied in paragraph 9
and 13 of the counter affidavit. The stand
taken in the counter affidavit is that there
was no necessity to afford opportunity to
the petitioner.

14. It is trite law that if any
administrative or qusi judicial order
which entails civil consequences, then the
1 All Lakhan Lal Gupta Vs. State of U.P. and others
421
person is entitled for opportunity before
any such order is passed. Having regard to
evidence on record, it can be safely held
that there is complete violation of
principles of natural justice in the present
case, and on this ground alone, the
impugned order is unsustainable.

15. Prof. Wade in Administrative
Law, 5th Edition, Page 470 has aptly
mentioned
about
natural
justice
in
following words. "The right to natural
justice should be as firm as the right to
personal liberty."

16. Supreme Court in the case of
Union Of India Vs. Mohd. Ramzan
Khan (1991) 1 SCC 588, at page 596 has
quoted "Prof. Wade has pointed out

"The concept of natural justice has
existed for many centuries and it has
crystallized into two rules: that no man
should be judge in his own cause; and that
no man should suffer without first being
given a fair hearing....They (the courts)
have been developing and extending the
principles of natural justice so as to build
up a kind of code of fair administrative
procedure, to be obeyed by authorities of
all kinds. They have done this once again,
by assuming that Parliament always
intends powers to be exercised fairly"

17.

Justice
Krishna
Iyer
in
Mohinder Singh Gill Vs. The Chief
Election Commissioner AIR 1978 SC
851 has traced the root of natural justice
in Kautiyla's Arthasastra. He opined as
under: "the rule of law has had the stamp
of natural justice which makes it social
justice.

18. Supreme Court in A.K. Kraipak
Vs. Union of India (1969) 2 SCC 262
held
an
unjust
decision
in
an
administative enquiry may have more fair
reaching effect that a decision in quasi
judicial enquiry. The purpose of the rules
of natural justice is to prevent miscarriage
of justice. The Court has referred the
classic case of State of Orissa Vs. Dr.
Binapani Dei AIR 1967 SC 1269;
Supreme Court in Binapani Case (Supra)
observed that if "there is power, duty to
act judicially is implicit in the exercise of
such power".

19. Swadeshi Cotton Mills Vs.
Union of India AIR 1981 SC 818,
Justice R.S. Sarkaria held as under:

"Rules of natural justice are not
embodied rules. Being means to an end
and not an end in themselves, it is not
possible to make an exhaustive catalogue
of such rules. But there are two
fundamental maxims of natural justice
vis. (i) audi alteram partem, and (ii) nemo
judex in re sua. The audi alterm partem
rule has many facets, two of them being
(a) notice of the case to be met; and (b)
opportunity to explain. This rule cannot
be sacrificed at the alter of administrative
convenience or celerity. The general
principles as distinguished from an
absolute rule of uniform application
seems to be that where a statute does not,
in terms, exclude this rule of prior hearing
but contemplates a post decisional hearing
amounting to a full review of the original
order on merits, then such a statute would
be construed as excluding the audi
alteram partem rule at the pre-decisional
stage. Conversely if the statute conferring
the power is silent with regard to the
giving of a pre-decisional hearing to the
person affected and the administrative
decision taken by the authority involves
civil consequences of a grave nature, and
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
no full view or appeal on merits against
that decision is provided, courts will be
extremely reluctant to construe such a
statute as excluding the duty of affording
even a minimal hearing, shorn of all its
formal trappings and dilatory features at
the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the
administrative process or frustrate the
need for utmost promptitude. In short, this
rule of fair play must not be jettisoned
save in very exceptional circumstances
where compulsive necessity so demands.
The court must make every effort to
salvage this cardinal rule to the maximum
extent
possible,
with
situational
modifications. But, the core of it must,
however, remain, namely, that the person
affected must have reasonable opportunity
of being heard and the hearing must be a
genuine hearing and not an empty public
relations exercise."

20. Recently Supreme Court in the
case
of
Automotive
Tyre
Manufacturers
Association
Vs.
Designated Authority (2011) 2 SCC 258
held about the natural justice in following
terms:

"It is thus, well settled that unless a
statutory provision, either specifically or
by necessary implication excludes the
application of principles of natural justice,
because in that event the court would not
ignore
the
legislative
mandate,
the
requirement
of
giving
reasonable
opportunity of being heard before an
order is made, is generally read into the
provisions of a statute, particularly when
the order has adverse civil consequences
which obviously cover infraction of
property, personal rights and material
deprivations for the party affected. The
principle holds good irrespective of
whether the power conferred on a
statutory
body
or
Tribunal
is
administrative or quasi judicial. It is
equally trite that the concept of natural
justice can neither be put in a straitjacket
nor is it a general rule of universal
application."

21. Apart from the aforesaid ground,
a perusal of the impugned order would
also indicate that no reason has been
mentioned in the impugned orders.
Without any reason, the orders become
arbitrary. The Supreme Court in the case
of Kranti Associates (P) Ltd. Vs.
Masood Ahmed Khan; 2010 (9) SCC
496, Maya Devi (Dead). Through LRS.
Vs. Raj Kumari Batra (Dead) through
LRS. And Others; 2010 (9) SCC 486
and in Raj Kishore Jha Vs. State of
Bihar; 2003(11) SCC 519 has laid the
emphasis
for
giving
reasons
by
administrative
and
quasi
judicial
authorities.

22. The Court has observed that the
reasons are heart and soul of the orders
and in absence of the reason, the order
becomes arbitrary. Supreme Court in S.N.
Mukherjee Vs. Union Of India; AIR
1990 SC 1984 has held that except in
cases where the requirement has been
dispensed
with,
an
administrative
authority is required to record the reason
for its decision/order.

23. That order is also vitiated for
another reason; The petitioner is retired
Class-IV employee, the impugned order
has been passed after four years of his
retirement. It may be that due to
inadvertent
mistake
by
authority
concerned, he was granted higher pay
scale.
1 All Lakhan Lal Gupta Vs. State of U.P. and others
423

24. Supreme Court in a recent
judgement Chandi Prasad Uniyal Vs.
State of Uttarakhand (2012) 8 SCC 417
has considered the law in this respect. The
Court held that the concept of fraud or
misrepresentation has no role to play
because it is public money, if it is
wrongly paid, the recipient should return
the
money.
But
in
that
case,
employee/recipient was in service when it
was found that excess amount was paid to
him.

25. In the present case, petitioner
stood retired and he is a Class IV
employee.

26. In Chandni Prasad Uniyal
(Supra) Supreme Court has referred its
decision in Syed Abdul Qadir Vs. State
of Bihar (2009) 3 SCC 475. In the said
case, recovery was initiated against retired
teacher, and the department sought the
recovery of excess payment after the
retirement.

27. Supreme Court in Syed Abdul
Qadir (Supra) has held as under:

"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. See Sahib Ram
vs. State of Haryana, 1995 Supp. (1)
SCC 18, Shyam Babu Verma vs. Union
of India, [1994] 2 SCC 521; Union of
India vs. M. Bhaskar, [1996] 4 SCC
416; V. Ganga Ram vs. Regional Jt.,
Director, [1997] 6 SCC 139; Col. B.J.
Akkara [Retd.] vs. Government of
India & Ors. (2006) 11 SCC 709;
Purshottam Lal Das & Ors., vs. State of
Bihar, [2006] 11 SCC 492; Punjab
National Bank & Ors. Vs. Manjeet
Singh & Anr., [2006] 8 SCC 647; and
Bihar State Electricity Board & Anr.
Vs. Bijay Bahadur & Anr., [2000] 10
SCC 99."

28. In the case in hand, petitioner
stood retired in the year 1998. After his
retirement, it was found that there was
wrong fixation. Petitioner immediately
moved to the Court and interim protection
was granted to him. More than 15 years
have passed. At this distance of time, I do
not find it in the interest of justice to remit
the matter back to the authority concerned.

29. In the counter affidavit, there is
no allegation that the petitioner was guilty
of any misconduct or misrepresentation.
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

30. No plausible reasons have been
given for not rectifying the alleged
mistake within reasonable period. The
reasonable period vary on facts of each
case, there is no straitjacket formula in
this regard. Having regard to facts of the
present case, four years time cannot be
said to be reasonable time.

31. After careful consideration of
facts, I am of the view that for the reasons
stated above, the impugned order dated
22.09.1998 and consequential orders
dated 24.09.1998 and 08.10.1998 needs to
be set aside. Accordingly, they are set
aside.

32.

In
peculiar
facts
and
circumstances of the case, it is directed
that no further deduction/recovery shall
be made against the petitioner and matter
shall be treated to be closed.

33. No order as to costs.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE MANOJ MISRA, J.

Civil Misc. Writ Petition No. 40031 Of 2012

Dr. Dwarika Nath Rai
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Neeraj Pandey

Counsel for the Respondents:
C.S.C., Sri Gautam Baghat
Sri Harshita Raghuvanshi
Sri K.K. Roy, Sri R.K. Rai
Sri Vivek Verma

V.B.Singh
Purvanchal
University-
First
statute-15.24-benefit of academic sessionpetitioner being substantive appointee on
post of Principal-retired on 04.07.02whether entitled for academic session
benefit?- held-'yes'-word teacher-includes
principal also-benefit of academic sessionmandatory-not depend upon discretion of
authorities-entitled to continue as reappointed principal till end of 30th June
2003.

Held: Para-10

As there is no dispute with regard to the
fact that the petitioner was regularly
appointed Principal on the date of his
superannuation
and
that
he
superannuated on 04.07.2012, he would
be treated as on re-employment, as per
the proviso to statute 15.24, up to 30 June
2013. Since the definition of teacher
includes a Principal, in the light of the
decisions of this Court in the cases of Udai
Narayan
Pandey
(supra)
and
Meerut
College Parivar Kalyan Samiti, Meerut
(supra), the petitioner would be deemed to
have been re-employed as a Principal of
the college and would continue, in such
capacity, till 30.06.2013.

Case Law discussed:
(1999)3UPLBEC 1887; (2001) 1 UPLBEC 201;
Civil Misc. Writ Petition No. 41457 of 2010;
(2001) 9 SCC 377;

(Delivered by Hon'ble Vineet Saran, J)

1. We have heard learned counsel
for the petitioner, Sri K.K. Roy appearing
for the newly impleaded respondent No.7
and the learned Standing Counsel for the
State-respondents.

2. The short question involved in
this petition is whether the petitioner, who
was regularly appointed Principal of