# Mohd. Janbaz Alam v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-02
- **Case number:** Writ - A No. 42631 of 2017
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-janbaz-alam-v-state-of-u-p-ors-47962
- **Pages:** 8

## Headnote

Civil Law - Constitution of India,1950 -
Article 14, 15, 16, 17, 18, 39, 39(a), 43,
46, 142 & 226 - Indian Contract Act, 1872
- Section - 72 - Writ Petition - against
impugned order of adjustment of certain
amount from the retiral dues - petitioner retired
in year 2014 - alleged excess salary was made
in the year 2008 due to wrong fixation which
was
not
detected
&
recovered
by
the
respondent after retirement - payment of salary
& other financial benefits of an employee is
always subject to audit proceedings - Mistakes
was made in year 2008, when third ACP was
granted to petitioner, but same was detected
after his retirement in year 2016 - audit is
normaly held periodically and nothing has been
brought on the record as to why the audit has
not objected to such erroneous fixation earlier -
recovery of amount at the behest of the
employer when there is no fault of employee will
entail hardship as the recovery under the equity
jurisdiction is not permissible - hence writ
petition allowed - impugned order of recovery
set aside - recovered amount shall be restored
in favour of the petitioner within three
months.(Para - 22, 23, 24, 25)

Writ Petition is Allowed. (E-11)

List of Cases cited: -

## Text

11 All. Mohd. Janbaz Alam Vs. State of U.P. & Ors.
1099
of petitioner no. 2 on merits and in
accordance with law and in view of the
observations
made
by
this
Court
hereinabove.
In
peculiar
facts
and
circumstances of the case, it is directed that
the
application
for
compassionate
appointment shall be considered by the
respondents as within time. The abovementioned exercise shall be completed by
the respondents within a period of three
months from the date of production of
certified copy of the order. The respondents
shall prior to passing of the order shall give
an opportunity of hearing to the petitioners.

59. As a result the writ petition is
allowed with direction as detailed herein
above.
----------
(2022) 11 ILRA 1099
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ - A No. 42631 of 2017

Mohd. Janbaz Alam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Upendra Upadhyay

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 14, 15, 16, 17, 18, 39, 39(a), 43,
46, 142 & 226 - Indian Contract Act, 1872
- Section - 72 - Writ Petition - against
impugned order of adjustment of certain
amount from the retiral dues - petitioner retired
in year 2014 - alleged excess salary was made
in the year 2008 due to wrong fixation which
was
not
detected
&
recovered
by
the
respondent after retirement - payment of salary
& other financial benefits of an employee is
always subject to audit proceedings - Mistakes
was made in year 2008, when third ACP was
granted to petitioner, but same was detected
after his retirement in year 2016 - audit is
normaly held periodically and nothing has been
brought on the record as to why the audit has
not objected to such erroneous fixation earlier -
recovery of amount at the behest of the
employer when there is no fault of employee will
entail hardship as the recovery under the equity
jurisdiction is not permissible - hence writ
petition allowed - impugned order of recovery
set aside - recovered amount shall be restored
in favour of the petitioner within three
months.(Para - 22, 23, 24, 25)

Writ Petition is Allowed. (E-11)

List of Cases cited: -

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

2. Thomas Daniel Vs St. of Kerala & ors., Civil
Appeal No.7115 of 2010 decided on Dt.
02.05.2022

3. Col. B. J. Akkara (Retd.) Vs Government of
India, (2006 vol. 11 SCC 709).

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.

2. It is submitted by learned
counsel for the petitioner that the petitioner
was working on the post of Junior Engineer
under the respondents and has since retired
on 30.06.2014 from the office of Executive
Engineer, Rural Engineering Services,
Gorakhpur. It is further submitted by
learned counsel for the petitioner that a
liability was fixed against the petitioner on
the ground of excess payment of ₹ 99,856/-
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
. The aforesaid liability is in respect of the
year 2011-12 for construction of drain and
road under Dr. Ambedkar project scheme
for an estimate of ₹ 80.75 lakhs. Against
the aforesaid estimated value, the financial
and administrative approval was accorded
to the tune of ₹ 56.15 lakhs and in
pursuance thereof, a contract was executed
on 12.09.2011. After completion of the
contract, the total payment made was ₹
55,49,856/-. The respondents have disputed
the difference of amount of ₹ 99,856/- after
taking measurement. The petitioner came
to know about the aforesaid liability been
fixed after his retirement thereafter the
petitioner has moved an application before
the Executive Engineer on 12.03.2016
giving details of circumstances in which
the difference arisen and the amount should
not be realised. It is further submitted that
the petitioner has regularly represented the
respondent
authorities
however
the
grievance of the petitioner was not decided
and retirement dues after retirement of
petitioner was not paid. After the retirement
of the petitioner on 08.09.2016 another
order was passed by the respondent No.4
claiming wrong fixation of promotional pay
scale since 01.12.2008 and as such, the
difference of amount of ₹ 3,10,022.00 was
sought to be recovered. It is further
submitted that thereafter on 02.05.2017, an
order has been passed by the Additional
Director, Treasury and pension, Varanasi
Region, Varanasi directing adjustment of ₹
4,09,878/- from the retirement dues of the
petitioner. By means of impugned order,
adjustment of ₹ 4,09,878/- is being made
from the retiral dues of the petitioner. It is
further
submitted
that
the
petitioner
submitted representation dated 13.04.2017
before the respondent authorities against
the order dated 08.09.2016. Petitioner
further
filed
a
representation
dated
01.04.2017
before
the
respondent
authorities against the recovery of ₹
99,856.00.

3. It is further submitted by
learned counsel for the petitioner that
payment of excess salary was made in the
year 2008 and aforesaid wrong fixation was
not detected by the respondent and they
have proceeded to initiate the recovery
proceeding after retirement of the petitioner
on 30.6.2014. It is further submitted that
the retiral dues have been released,
however now the amount is being adjusted
from the pension. It is further submitted by
learned counsel for the petitioner that
neither the petitioner was in any manner
involved in the fixation of third ACP nor
any fraud or misrepresentation has been
attributed to the petitioner in respect of
wrong fixation. He has further submitted
that the petitioner is entitled to protection in
view of the law laid down by the Apex
Court in State of Punjab and others Vs.
Rafiq Masih (White Washer) (2015) 4
SCC 334.

4.

Learned
Standing
Counsel
appearing on behalf of the State submits
that financial and administrative approval
was given for work to the tune of ₹ 60
lakhs by the Government. The Executive
Engineer sanctioned ₹ 54.50 lakh for the
work in question and as such, petitioner
was authorised to make payment to the
extent of ₹ 54.50 lakh, however, petitioner
has made payment of ₹ 55, 49,856.00/- and
as such, a payment of ₹ 99,856.00 has been
excessively paid by the petitioner and the
aforesaid amount is also sought to be
recovered from the petitioner by impugned
order. It is further submitted by learned
Standing Counsel that the excess of salary
paid and excess of payment made to the
contract by the petitioner is sought to be
recovered by means of the impugned order.
11 All. Mohd. Janbaz Alam Vs. State of U.P. & Ors.
1101
Learned standing counsel do not dispute
the fact that wrong fixation of salary was
made in the year 2008 and the same was
detected after retirement of the petitioner in
the year 2014 and therefore, recovery is
being made from the retiral dues. He
submits that the recovery is being made on
the basis of consent letter submitted by the
petitioner, which is at page 51 of the writ
petition. On the aforesaid basis, learned
Standing Counsel submits that once the
petitioner himself has given consent for
recovery then he cannot resile from his
consent.

5. The service of employee is
governed by the terms and condition
provided in the service rules or otherwise.
The salary and other financial benefits are
provided by the employer to the employee
after due sanction in accordance with law.
The employee is entitled to financial
benefits arising out of the service to the
extent as may be permissible under the
relevant service rules or the Government
Orders issued from time to time. No
employee has the indefensible right to
obtain financial benefits in respect of
service from his employer where the
aforesaid financial benefits do not have the
sanction of law.

6. In some cases employees are
extended financial benefits in respect of the
service which the said employees are not
entitled under law. The financial benefits so
extended may be by mistake of employer or
by fraud or misrepresentation of the
employee. The employee is entitled to
receive the financial benefits including
salary arising out of the service only to the
extent as may be sanctioned by the
employer in accordance. The employer is
obliged to sanction these financial benefits
to his employee in accordance with law.
However, the difficulty may arise where on
account of mistake of employer, financial
benefits is extended to its employee which
are not permissible under law.

7. Under the common law, a payment
made by mistake is entitled to be
recovered. The recovery of payment is
based on the principle of enrichment. One
should not unjustly profit at the expense of
another. The said principle is also reflected
under Section 72 of the Indian Contract
Act, 1872.

8. In the present case, employer is the
State and the action of the State is required
to be in consonance with the Constitution.
The action of the state is required to be just,
fair and reasonable. State action which is
arbitrary and unfair, would not stand the
concept of justice enshrined under the
Constitution. If the excess amount was not
paid on account of any misrepresentation or
fraud of the employee or 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,
such
recovery
of
excess
payment of financial benefits may visit the
employee with greater hardship more
particularly where the employee has retired
from service. An employee would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess financial benefits for a long period,
he would spend it, genuinely believing that
he is entitled to it as such any subsequent
action to recover the excess payment will
cause undue hardship to the employee. The
State/Government is expected to reflect the
constitutional mandate in all its action. The
employer/State is under obligation to
mitigate the hardship of the employee more
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly when the hardship arises out of
the mistake of the employer.

9. The Apex Court in Rafiq Masih
(supra) has recognised that the State action
should be in consonance with the concept
of justice enshrined in the Constitution. The
Apex Court has further observed that 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.

10. The Apex Court in Rafiq Masih,
(supra) has observed as under :

"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 concerned employee. If
the effect of the recovery from the
concerned employee 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
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.

10. In view of the aforestated
constitutional mandate, equity and good
conscience in the matter of livelihood of
the people of this country has to be the
basis of all governmental actions. An action
of the State, ordering a recovery from an
employee, would be in order, so long as it
is not rendered iniquitous to the extent that
the action of recovery would be more
unfair, more wrongful, more improper, and
more unwarranted, than the corresponding
11 All. Mohd. Janbaz Alam Vs. State of U.P. & Ors.
1103
right of the employer, to recover the
amount. Or in other words, till such time as
the recovery would have a harsh and
arbitrary effect on the employee, it would
be permissible in law. Orders passed in
given
situations
repeatedly,
even
in
exercise of the power vested in this Court
under Article 142 of the Constitution of
India, will disclose the parameters of the
realm of an action of recovery (of an excess
amount paid to an employee) which would
breach the obligations of the State, to
citizens of this country, and render the
action arbitrary, and therefore, violative of
the mandate contained in Article 14 of the
Constitution of India."

11. The employee under law has no
right against recovery but in equity,
exercising judicial discretion the recovery
is disallowed to provide relief to the
employees from the hardship that will be
caused if the recovery is permitted. The
said principle is recognised by Apex Court
in judgement rendered on 2.5.2022 in Civil
Appeal No.7115 of 2010 (Thomas Daniel
Vs. State of Kerala and others)

"9. This Court in a catena of
decisions has consistently held that if the
excess amount was not paid on account of
any misrepresentation or fraud of the
employee or 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,
such
excess
payment
of
emoluments
or
allowances
are
not
recoverable. This relief against the recovery
is granted not because of any right of the
employees but in equity, exercising judicial
discretion to provide relief to the employees
from the hardship that will be caused if the
recovery is ordered. This Court has further
held that if in a given case, it is proved that an
employee had knowledge that the payment
received was in excess of what was due or
wrongly paid, or in cases where error is
detected or corrected within a short time of
wrong payment, the matter being in the realm
of judicial discretion, the courts may on the
facts and circumstances of any particular case
order for recovery of amount paid in excess."

12. In Col. B.J. Akkara (Retd.) Vs.
Government of India, (2006) 11 SCC 709,
Hon'ble Supreme Court has observed as
under:

"28. Such relief, restraining back
recovery 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 hardship 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 recover the excess payment will cause
undue 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."

13. In the matter of recovery, it is well
settled if certain payment has been made to
the employee on account of any fault of the
employer, and for which the employee is
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
not responsible, namely, not guilty of fraud
or misrepresentation, in such a case, the
amount which has already been received by
the employee and he has spent, should not
be recovered.

14. The Apex Court in Rafiq Masih
(supra) has summarised some situations of
hardship in which the payments made by
mistake cannot be recovered. In this
context paragraph 12 of the aforesaid
judgment is quoted hereunder:

"12. 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 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."

15. Learned Standing Counsel has not
disputed the proposition of law laid down
in Rafiq Masih (supra) and Thomas
Daniel (supra). It is submitted by learned
Standing Counsel that recovery is being
made on the strength of the consent of the
petitioner, which is at page 51 of the writ
petition. It is further submitted that by
consent letter dated 08.07.2016 petitioner
has permitted the employer to realise the
amount.

16. It is not in dispute between the
parties that the petitioner is Class III
employee and has retired 30.6.2014 and
after his retirement, recovery is being
made. The recovery of the amount of ₹
4,09,878.00/- is being made from the
petitioner. The aforesaid amount includes
an amount of ₹ 99,856/- being an amount in
excess paid by the petitioner to the
contractor for executing the work contract.
Further an amount of ₹ 3,10,022/- is sought
to be recovered on account of excess salary
paid to the petitioner from 12.8.2008. It is
to be noted that the petitioner has retired
from service on 30.06.2014 and the order
of recovery has been passed from the retiral
dues of the petitioner on 08.09.2016.

17. The recovery of the aforesaid
amount is being made on the strength of the
fact that the excess payment has been made
to the petitioner on account of incorrect
fixation of salary by mistake and further
that the petitioner has made excess
payment to the contractor which the State
had suffered loss.

18. Insofar as the loss suffered by the
State on account of excess payment made
11 All. Mohd. Janbaz Alam Vs. State of U.P. & Ors.
1105
by the petitioner to the tune of ₹ 99,856/- to
the contractor for the work contract
executed, such a loss is alleged to be
suffered by the State is of the year 2011-12
when the petitioner was in service. After
the retirement when the petitioner came to
know with regard to the aforesaid recovery
been made from the petitioner, the
petitioner by means of application dated
12.03.2016 filed objection to the aforesaid
recovery explaining that the amount has
been paid to the contractor as is permissible
under law. The objection raised by the
petitioner against the aforesaid recovery of
excess payment made to the contractor was
not decided by the employer and as such
reminder dated 20.03.2016 was sent to the
Executive Engineer.

19.

Thereafter
on
31.03.2016,
respondent No.3 forwarded a letter to
respondent
No.4
directing
that
the
representation of the petitioner should be
decided at the earliest. However, no order
was passed by the respondents on the
aforesaid objection of petitioner. The
petitioner thereafter has further submitted a
representation
dated
01.04.2017
and
22.05.2017. The stand in the counter
affidavit in paragraph 15 is that the
representations of the petitioner were
decided by order dated 08.09.2016 and
20.04.2017. A perusal of above-mentioned
orders dated 08.09.2016 and 28.04.2017
would demonstrate that the objection by the
petitioner against the aforesaid recovery by
filing of objection/representation has not
been considered and an order has been
passed
mechanically
and
without
application of mind to the objection raised
by the petitioner against recovery. It is to
be noted that the employee can always
show by filing representation/objection that
the recovery/loss to the State is not
attributable to the petitioner and that the
payment has been made in accordance with
law. The employer is required to consider
the case of the petitioner in the light of
objection raised by the employee. However
in the present case, the objection raised by
the employee by means of representation
have not been considered nor the same has
been decided. Such an approach by the
employer is in gross violation of principles
of natural justice and fair play.

20. The other amount sought to be
recovered is with regard to payment of
excess salary to the petitioner from the year
2008. The petitioner has retired on
30.06.2014 from the service and after the
retirement of the petitioner, excess salary is
sought to be recovered by means of
impugned orders dated 08.09.2016 and
02.05.2017. It is not the case of the
respondents
that
any
fraud
or
misrepresentation has been made by the
petitioner while fixation of the salary. The
payment of excess salary is on account of
mistake of the employer. As such. in view
of the law laid down by the Apex Court in
Rafiq Masih (supra) and Thomas Daniel
(supra), the aforesaid recovery in not
permissible under law.

21. Learned Standing Counsel has
tried to defend the recovery of the amount
on the basis of consent letter dated
08.07.2016
of
the
petitioner
which
according to learned Standing Counsel is
the consent to adjust the amount of excess
payment made to the petitioner from the
retiral dues of the petitioner. He submits
that the recovery has been effected on the
basis of consent letter dated 08.07.2016 of
the petitioner.

22. A bare perusal of the abovementioned consent letter dated 08.07.2016
of the petitioner would go to show that
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
since
the
petitioner
had
retired
on
30.06.2014 and even after a lapse of two
years, retiral benefits of the petitioner were
not been paid on account of alleged
recovery
against
the
petitioner,
the
petitioner requested the respondents to
temporarily stop the amount equivalent to
the alleged recovery and remaining retiral
benefits may be released. The petitioner
had
requested
the
respondents
to
temporarily stop the payment of the amount
equivalent to the alleged recovery from the
retiral dues of the petitioner since the
representation
against
the
aforesaid
recovery
was
pending
before
the
respondents
for
consideration.
The
aforesaid consent was only to stop the due
amount temporarily till the objection and
representation of petitioner is pending and
release
the
remaining
amount.
The
employee had never given an undertaking
that the recovery amount may be adjusted
from the dues.

23. There is one more aspect of the
matter that the payment of salary and other
financial benefits of an employee is always
subject to audit proceeding. Each department
of the government is subjected to audit
periodically, such periodical audit is done
with the object that any mistake by the
employer or the authority concerned in
payment of financial benefit to the employee,
the same may be brought to the knowledge
and rectified at the earliest. In the present
case, the mistake was made in the year 2008
when the third ACP was granted, however
the same was detected after his retirement in
the year 2016. The audit is normally held
periodically and nothing has been brought on
record as to why the audit has not objected to
such erroneous fixation earlier. If the
government has established the Audit
Department to keep a check then it is
imperative on the aforesaid department to
raise the issue at the earliest. Once an
employee has retired and has travelled in
service for substantial years after fixation of
pay then recovery of such amount at the
behest of the employer when there is no fault
of employee will entail hardship as the
recovery under the equity jurisdiction is not
permissible under law.

24. As a result, the writ petition is
allowed. The impugned order dated 8.9.2016
passed
by
Executive
Engineer,
Rural
Engineering Department, Ghazipur Division
Ghazipur and consequential order dated
2.5.2017 passed by Additional Director,
Treasury and Pension, Varanasi Region,
Varanasi, are set aside.

25. Consequentially, the amount
recovered in pursuance to the impugned
orders dated 8.9.2016 and 2.5.2017, shall be
restored in favour of the petitioner within a
period of three months.
----------
(2022) 11 ILRA 1106
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ C No. 25065 of 2022

Kaneez Fatima ....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Araf Khan, Sonakshi Arora

Counsel for the RespondentS:
C.S.C., Arti Raje, Sri M.C. Chaturvedi, Sr.
Advocate