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

- **Citation:** (2024) 8 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-22
- **Case number:** Writ-A No. 6737 of 2024
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-shukla-v-state-of-u-p-ors-52318
- **Pages:** 4

## Headnote

Law-Constitution
of
India,1950-Article 226-issue of recovery
of excess payments made to a retired
Class-IV employee-The recovery of Rs.
5,38,674
from
petitioner's
pension
commutation on the grounds that no
prior
notice
or
undertaking
was
provided-The Apex Court judgment Rafiq
Mashih protects Class-III and Class-IV
employees from such recoveries after
retirement-Hence, no recovery can be
made from the amount of commutation
of pension-the court quashed the order
as illegal, arbitrary and violating natural
justice-The
court
directed
the
authorities
to
refund
the
deducted
amount within a month, failing which
10%
interest
penalty
for
delayed
payment.(Para 1 to 14)

The petition is allowed. (E-6)
List of Cases cited:

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

## Text

304 INDIAN LAW REPORTS ALLAHABAD SERIES
कायग्‌ ककया्‌ है, िह्‌ िेतन्‌ पाने्‌ का्‌ अचधकारी्‌
होर्ा।

22. अतः्‌ उपरोक्त्‌ समीक्षा्‌ के्‌ आलोक्‌
में्‌ ररट्‌ याचिका्‌ ननरस्त्‌ की्‌ जाती्‌ है।
----------
(2024) 8 ILRA 304
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ-A No. 6737 of 2024

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

Counsel for the Petitioner:
Ratnesh Singh, Pranav Mishra

Counsel for the Respondents:
C.S.C.

A.
Service
Law-Constitution
of
India,1950-Article 226-issue of recovery
of excess payments made to a retired
Class-IV employee-The recovery of Rs.
5,38,674
from
petitioner's
pension
commutation on the grounds that no
prior
notice
or
undertaking
was
provided-The Apex Court judgment Rafiq
Mashih protects Class-III and Class-IV
employees from such recoveries after
retirement-Hence, no recovery can be
made from the amount of commutation
of pension-the court quashed the order
as illegal, arbitrary and violating natural
justice-The
court
directed
the
authorities
to
refund
the
deducted
amount within a month, failing which
10%
interest
penalty
for
delayed
payment.(Para 1 to 14)

The petition is allowed. (E-6)
List of Cases cited:

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

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Pranav Mishra and Sri
Ratnesh Singh, learned counsels for the
petitioner and Sri Sandeep Sharma, learned
Standing Counsel for the State.

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

"(i) to issue a writ, order or
direction in the nature of certiorari thereby
quashing
the
impugned
order
dated
29.04.2023 passed by the opposite party
No.3 (as contained in Annexure No.1) to
the writ petition.

(ii) to issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to refund
the amount deducted from the post of
retiral dues of the petitioner without any
diminution to his emoluments."

3. The precise contention of learned
counsel for the petitioner is that the
petitioner retired from the post of Follower,
which is a Class-IV post, on 30.06.2022
while serving at Sitapur. The petitioner is
aggrieved from the order dated 29.04.2023
passed by the Superintendent of Police,
District-Sitapur indicating therein that the
petitioner retired on 30.06.2022 and on
30.07.2022 the Finance Controller of the
Police Department found that the petitioner
was paid some excess amount to the tune of
Rs.5,38,674/- while providing him the
benefit of revised pay-scale. This order
further
reads
that
the
total
amount
regarding commutation of pension is
8 All. Rajendra Prasad Shukla Vs. State of U.P. & Ors.
305
Rs.7,94,490/- and after deducting a sum of
Rs.5,38,674/-
he
would
be
paid
Rs.2,55,816/-.

4. Learned counsel for the petitioner
has stated that in the aforesaid manner after
declaring a sum of Rs.5,38,674/- as excess
amount that amount has been deducted
from the commutation of pension which is
not permissible under the law as no amount
can be recoverable from the amount of
commutation of pension.

5. Learned counsel for the petitioner
has submitted with vehemence that at the
time of providing the benefit of revised
pay-scale when he was in service, no
undertaking
was
received
from
the
petitioner inasmuch as if any undertaking
was received from him that would have
been indicated in the impugned order. He
has further submitted that before deducting
the amount in question from commutation
of pension no opportunity of hearing has
been provided to the petitioner inasmuch as
if any opportunity was afforded to the
petitioner, it would have been indicated in
the impugned order itself, but both the
aforesaid legal requirements are missing in
the impugned order. Besides, learned
counsel for the petitioner has drawn
attention of this Court towards para-18 of
the dictum of Apex Court rendered in the
case in re: State of Punjab and others v.
Rafiq Masih (White Washer) and others,
(2015) 4 SCC 334, wherein the Hon'ble
Apex Court has held as under:-

"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 here-in-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 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."

6. On the basis of aforesaid
background,
learned
counsel
for
the
petitioner has submitted that the Apex
Court has held that no recovery in the name
of excess amount may be executed against
employee who is Class-III or Class-IV
employee after his retirement and in the
present case, admittedly, the petitioner
retired on 30.06.2022 while serving on
Class-IV post and the impugned recovery
has
been
executed
on
29.04.2023,
therefore, the aforesaid impugned order is
not only illegal, aribtrary and violative of
principles of natural justice but the same is
in utter disregard to the dictum of Apex
306 INDIAN LAW REPORTS ALLAHABAD SERIES
Court rendered in re: Rafiq Masih (supra)
also.

7. Sri Sandeep Sharma, learned
Standing
Counsel
has
requested
for
sometime
to
seek
complete
written
instructions in the matter, but on being
confronted on the point that neither any
reference of undertaking at the time of
granting the benefit of revised pay-scale
has been indicated in the impugned order
nor the reference of an opportunity of
hearing has been indicated in the order, Sri
Sharma has stated that though both the
aforesaid things must have been indicated
in the impugned order by the Competent
Authority but the same have not been
indicated in the impugned order so if he is
given some reasonable time he may seek
complete instructions on that points too.

8. Having heard learned counsel for
the parties and having perused the material
available on record, though the request of
Sri Sandeep Sharma for seeking sometime
to seek instructions is a reasonable request
but if there is any mistake apparent on the
face of record which makes the impugned
order non est and uncalled for in the eyes of
law then no purpose would be served to
provide any time to seek instructions from
the Competent Authority, therefore, the
aforesaid request of Sri Sharma is declined.

9. The present petitioner retired from
Class-IV post on 30.06.2022 and if any
excess amount was paid to him while
providing him the benefit of revised payscale when he was in service, any
undertaking could have been taken from
him and if such undertaking was taken
from the petitioner the specific recital to
that effect must have been indicated in the
impugned order but no such undertaking
was taken from the petitioner. Further, if
after almost 11 months from the retirement
of the petitioner any recovery is to be
undertaken, at least one opportunity of
hearing should have been afforded to the
petitioner issuing show cause but no such
opportunity has been provided to the
petitioner, therefore, the impugned order is
violative of principles of natural justice and
for that reason the impugned order where
the civil consequences are involved, would
not sustain in the eyes of law. If any
explanation or show cause notice was
issued to the petitioner, the recital to that
effect must have been indicated in the
impugned
order
but
since
no
such
indication is there then it can be presumed
that no such opportunity of hearing has
been provided to the petitioner before
executing the recovery from him.

10. This is a trite law that no recovery
of any kind whatsoever in the name of
excess amount being paid can be executed
or
deducted
from
the
amount
of
commutation of pension, therefore, on that
ground alone the impugned order dated
29.04.2023 vitiates.

11. Lastly, when the Apex Court in
the case in re: Rafiq Masih (supra) has
settled the legal proposition to the effect
that no recovery in the name of excess
payment would be undertaken from ClassIII or Class-IV employees at the fag end of
retirement and after the retirement then
such recovery may not be executed from
the petitioner who retired from Class-IV
post. Therefore, the impugned order is in
utter disregard to the direction being issued
by the Apex Court.

12. In view of the above, the
impugned
order
dated
29.04.2023
(Annexure
No.1)
passed
by
the
Superintendent of Police, District-Sitapur is
8 All. Shardindu Kumar Singh Vs. State of U.P. & Ors.
307
hereby quashed being illegal, arbitrary,
violative of principles of natural justice and
being violative of directions of Apex Court
issued in the case in re: Rafiq Masih
(supra).

13. The Competent Authorities, who
may be the Superintendent of Police,
District-Sitapur or the Finance Controller
of the Police Department, U.P., Lucknow,
are
directed
to
refund
a
sum
of
Rs.5,38,674/-, which has been deducted
from the amount of commutation of
pension,
to
the
petitioner
forthwith,
preferable within a period of one month
from the date of production of a certified
copy of this order, failing which, the
petitioner would be entitled for interest on
delayed payment of such amount at the rate
of 10% per annum.

14. Accordingly, the instant writ
petition is allowed.

15. No order as to cost.
----------
(2024) 8 ILRA 307
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 6988 of 2024

Shardindu Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gautam Baghel, Sri Om Prakash Singh

Counsel for the Respondents:
Sri Adarsh Singh, C.S.C., Sri Indra Raj
Singh, Sri Jamil Ahamad Azmi
A. Service Law-Constitution of India,1950Article
226-suspension-Petitioner
was
appointed
as
an
L.T.
Grade
teacher
promoted to lecturer-he was exonerated by
the Joint Director of Education from charges
of irregular salary payments and procedural
lapses in admissions to the NCC-Despite this
, the DIOS refused to hand over the charge
of Officiating Principal-The court held that
suspension should be based on strong prima
facie evidence of serious misconduct-The
administrative decision of the DIOS was
found
to
be
illogical
and
arbitrarySuspension orders should not be issued
arbitrarily or with malice-The court held that
if an employee has been exonerated of
specific charges, issuing a suspension order
based on the same charges or without
sufficient legal grounds constitutes "malice
in law"-The administrative actions must be
fair reasonable, and supported by valid
reasons, as per the legal precedent in U.O.I.
Vs Ashok Kumar Aggarwal Case.(Para 1 to
28)

The petition is allowed. (E-6)

List of Cases cited:

1. U.O.I.& anr.. Vs Ashok kumar Aggarwal
(2013) 16 SCC 147

2. L.K. Verma Vs H.M.T.Ltd(2006) 2 SCC 269

3. Hombe Gowda Edn. Trust & anr. Vs St.of Kar.
& ors.(2005) 10 SCALE 307

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Gautam Baghel, the
learned counsel for the petitioner, Sri Gaya
Prasad Singh, the learned Standing Counsel
appearing on behalf of the State-opposite
parties no.1 to 4, 7 and 8, Sri Indra Raj
Singh, the learned counsel for the opposite
party no.6.

2. The opposite party no.5 - Manoj
Kumar Mishra is the District Inspector of
Schools,
Azamgarh
who
has
been