# Smt. Krishna Srivastava v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-02-07
- **Case number:** Writ A No. 25338 of 2016
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-srivastava-v-state-of-u-p-ors-45559
- **Pages:** 5

## Headnote

C.S.C., Sri Arun Kumar, Sri Anoop Kumar

A. Natural Justice - no recovery can be
made from a retired employee without
providing an opportunity of hearing - it is
impermissible
to
recover
the
extra
payment made for a period in excess of
five years before the order of recovery is
issued (para 11)

Writ Petition allowed.
List of cases cited:

## Text

2 All. Smt. Krishna Srivastava Vs. State of U.P. & Ors.
1703
Rule 11(2) of the Uttar Pradesh Government
Servants (Discipline and Appeal) Rules, 1999,
would expose it to the peril of being arbitrary
and discriminatory and in violation of Article
14 of the Constitution. It is a well settled
cannon of statutory construction that if a statute
is capable of being interpreted in two ways, the
one that exposes it to the vice of
unconstitutionality should be eschewed. The
statute (including statutory Rules) ought to
construed in a manner that renders it
constitutionally valid; unless that construction
is impossible on the terms of it.

9. This Court does not find that Rule 11(2)
is incapable of that construction where the wife of
a deceased Government servant, who is entitled
to claim the benefits that would flow in case the
order passed against him by the Disciplinary
Authority were set aside, is contemplated to be
excluded from exercising the right of Appeal.

10. In this view of the matter, this writ
petition succeeds and is allowed. The impugned
order 16.08.2019 passed by respondent no.2, the
Commissioner, Basti Division, Basti is hereby
quashed. The Commissioner, Basti Division,
Basti is ordered to decide the petitioner's Appeal,
dated 07.02.2018 afresh in accordance with law
on merits within a period of six weeks from the
date of receipt of a certified copy of this
judgment.

11. There shall be no order as to costs.
----------
(2020)02ILR A1703

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE PIYUSH AGRAWAL, J.

Writ A No. 25338 of 2016

Smt. Krishna Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Dileep
Kumar
Mishra,
Sri
R.S.
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Arun Kumar, Sri Anoop Kumar

A. Natural Justice - no recovery can be
made from a retired employee without
providing an opportunity of hearing - it is
impermissible
to
recover
the
extra
payment made for a period in excess of
five years before the order of recovery is
issued (para 11)

Writ Petition allowed.
List of cases cited:

1. State of Punjab and ors V. Rafiq Masih
(White Washer) and ors (2015) 4 SCC 332
(followed)

2. Brijendra Kumar Tripathi & ors V. State of
U.P. & ors 2019 (4) ADJ 690 (LB) (followed)
(Delivered by Hon'ble Piyush Agrawal, J.)

1. This writ petition has been filed,
inter alia, for the following reliefs:-

"(i) Issue a writ, order or
direction in the nature of mandamus
commanding and directing the respondent
no. 4to refund the illegally deducted
amount of Rs. 3,74,745/- from G.P.F. of the
petitioner with interest."

2. Heard learned counsel for the
petitioner, learned standing counsel for the
State - respondents and Shri Anoop
Kumar, holding brief of Shri Arun Kumar,
learned counsel for the respondent nos. 4,
5 & 6.
1704 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The brief facts of the case are that
the petitioner was appointed as Assistant
Teacher in Ramrati Devi Kanya Junior
High
School,
Maniram
Maharajganj,
Gorakhpu (hereinafter referred to as, ''the
Institution') vide appointment letter dated
16.10.1991.
The
Institution
was
recognized in the year 1988 and came into
the grant-in-aid list in the year 2006. It is
averred that the petitioner continued on the
post of Assistant Teacher. After the coming
into the grant-in-aid list, as per the rules &
regulations, the GPF as well as other fund
were continuously deducted from the
salary of the petitioner and the petitioner
worked for 6 to 7 years pursuant to coming
into the Institution under the grant-in-aid
list. The petitioner superannuated on
30.06.2013 from the post of Assistant
Teacher.

4. It is further averred that after the
petitioner's retirement, when she was not
getting the retiral benefits, approached the
authority concerned, but in vain. It is
further averred that on 03.12.2013, on the
Tehsil Diwas, the petitioner personally
apprised the concerned Officer about her
grievances, but in spite of the direction for
granting retiral benefits, no action has
been taken by the authority concerned for
redressal of the petitioner's grievance.
When no heed was paid to the grievance of
the
petitioner,
she
approached
the
Lokayukt, Uttar Pradesh on 18.02.2014
against the arbitrary and prejudicial action
of the respondents. On the notice of the
Lokayukt, the respondent nos. 4, 5 & 6,
vide letter dated 21.04.2014, stated that a
report was called from the Finance &
Account Officer, in which it came to the
notice that the salary of the petitioner was
being paid more than the exact salary by
wrong calculation and therefore, after her
retirement, the recovery was to be made
from her GPF amount, which was above
Rs. 4,00,000/-. It is further averred that out
of Rs. 4,12,414/-, a sum of Rs. 3,74,745/-
has been deducted from the petitioner's
GPF account and only Rs. 44,769/- was
paid to the petitioner. It is further averred
that
the
said
amount
had
been
withdrawn/adjusted without the consent of
the petitioner. Hence, the present writ
petition seeking refund of illegal deduction
of Rs. 3,74,745/- from the GPF account of
the petitioner, along with interest.

5. Learned counsel for the petitioner
submits that the petitioner, who was
appointed in the year 1988 on the post of
Assistant Teacher in the Institution, had
been working as Assistant Teacher even
after the Institution came under the grantin-aid list in the year 2006 on the same
post. He further submits that it is not the
case of the respondents that the alleged
excess payment has been made to the
petitioner by misrepresenting or playing
fraud for getting the salary on the post of
Assistant Teacher for which she was not
entitled for. It is further submitted that refixation of salary has been done without
providing any opportunity of being heard
to the petitioner. Learned counsel for the
petitioner has placed reliance upon the
judgement of the Apex Court in State of
Punjab and others Vs. Rafiq Masih
(White Washer) and others reported in
(2015) 4 SCC 332. He prays that a
direction may be issued to the respondents
for refund of Rs. 3,74,745/-, along with
interest, which was illegally deducted from
the GPF account of the petitioner.

6. Per contra, learned counsel for the
respondents submits that before taking
action against the petitioner, notices were
issued, but the petitioner chose not to reply
the said notices. Therefore, the deduction
2 All. Smt. Krishna Srivastava Vs. State of U.P. & Ors.
1705
has rightly been made as the amount has
wrongly been paid to the petitioner, for
which she was not entitled to and under
such circumstances, re-fixation was done
and order was passed for deducting the
amount from the petitioner's GPF account.
Learned counsel for the respondents tries
to justify the action of the respondents.

7. The Court has considered the rival
submissions of the learned counsel for the
parties and has perused the record.

8. The record reveals that the
petitioner was appointed as an Assistant
Teacher in the Institution in the year 1988
and
worked
till
the
date
of
her
superannuation, i.e., 30.06.2013, on the
said post. During the said period, the
salary of the petitioner has been paid
without any break. The record further
reveals that the salary of the petitioner was
being paid as per the Rules & regulations
applicable at that time. The petitioner is
entitled for the retiral benefit after the date
of superannuation. It is also not the case of
the respondents that the petitioner has
misrepresented or played fraud for getting
the pay scale, for which she was not
entitled to. The record further reveals that
the notices alleged to have been issued by
the Institution under the signature of the
Principal of the Institution without there
being any reference of any letter of
respondent nos. 4 & 6, i.e., District Basic
Education Officer, Gorakhpur and Finance
& Account Officer, Basic Education,
Gorakhpur.
Letters
have
also
been
handwritten and without there being any
number on it. The averment in the counter
affidavit for issuance of notice to the
petitioner has specifically been denied in
the rejoinder affidavit in paragraph no. 4
thereof by the petitioner and specifically
stated that no such show cause notice was
ever received to the petitioner. The record
further reveals that with regard to the
alleged notice, which has stated to have
been sent, no material has been brought on
record to show that any such notice was
issued by the respondent nos. 4 to 6 and
how the same was dispatched and when
received. In absence of such material on
record, it cannot be presumed that the
notice was given to the petitioner before
making deduction of Rs. 3,74,745/- from
GFP account of the petitioner.

9. The Apex Court in State of
Punjab and others Vs. Rafiq Masih
(White Washer) and others reported in
(2015) 4 SCC 332, has held that recovery
from
the
employee
would
be
impermissible in law after his retirement,
while
payments
have
been
made
mistakenly by an employer. Para 12 of the
aforesaid judgment reads as under:

"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
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
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Recently, this Court in the case of
Brijendra Kumar Tripathi & Others Vs. State
of U.P. & Others reported in 2019 (4) ADJ 690
(LB) has held as under:-

".......that the opposite parties have
not provided the opportunity of hearing to the
petitioners to place their case/defence in
support of their fixation of pay by the erstwhile
Rural Development Department and being so
as well as keeping in view the facts of the case
in hand that the pecuniary benefits earlier
provided to the petitioners have been affected
and serious pre-judice has been caused to the
petitioners by the orders dated 11.05.2016,
13.06.2017 and 17.10.2017 as well as
consequential orders of recovery of excess
amount paid to the petitioners and the
principle that an order which involves civil
consequence must be passed after following
principles of natural justice and after affording
opportunity of hearing, this Court feels that
orders dated 11.05.2016, 13.06.2016 and
17.10.2017 are unsustainable being violative
to Article 14 of the Constitution of India as
have
been
passed
without
providing
opportunity of hearing to the petitioners and
are against the principle of natural justice and
fair play and as such, liable to be interfered by
this Court."

11. From the perusal of the aforesaid
judgements, the position of law, which
emerges, is that no recovery can be made from
a retired employee without providing him/her
an opportunity of hearing. Further, it is also
impermissible in law to recover the amount of
excess payment made for a period in excess of
five years before the order of recovery is
issued.

12. In the case in hand, after the
Institution has come under the grant-in-aid list
in the year 2006, the petitioner continued in
service for more than six years on the same
post. After the Institution, in which the
petitioner was working, came under the grantin-aid list, the GPR as well as other funds of
the petitioner were continuously deducted
from her salary as per the Rules and
regulations, which means that there was no
dispute with regard to fixation of salary and
payment made thereof to the petitioner.

13. In view of the aforesaid factual
and legal position, no recovery can legally
be made from the petitioner after her
retirement on 30.06.2013. The amount,
which has been recovered by way of
deducting from the petitioner's GPF
account, is liable to be refunded, along
with interest, to the petitioner.

14. In the result, the writ petition
succeeds and is allowed. The District
Basic Education Officer, Gorakhpur is
directed to refund the deducted amount
from the petitioner's GPF, along with
6% per annum interest, within a period
of one month from the date of
production of a certified copy of this
order.

15. The respondents are free to
recover the amount of interest paid to
the petitioner from the erring Officer(s)
in accordance with law.
----------
2 All. Phool Singh Vs. State of U.P. & Ors.
1707
(2020)02ILR A1707

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ A No. 44407 of 2012

Phool Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Yadav, Sri Abhishek
Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri J.R. Pandey

A. Exchange of land - Section 161 & 132 -
U.P. Zamindari Abolition & Land Revenue
Act, 1950 - conjoint reading of both the
Sections manifests that the exchange
may be sought in respect of land
generally vesting in Gaon Sabha by virtue
of
Section
117,
but
it
cannot
be
applicabile to those categories of land
which are covered and fall within the
ambit of Section 132
Section 161 is not envisaged to be a tool or
measure to camouflage, overcome, legalise or
legitimise an illegality. It is not meant to be a
used as an instrument or device to regularise
or validate an illegality. It cannot possibly be
viewed as a provision enabling a usurper or
encroacher of public utility land to attempt to
legalise wrongful possession. As this Court
reads that provision, it primarily appears to put
in place a mechanism to interchange land inter
parties.
It
is
principally
a
reciprocal
arrangement. It clearly does not and cannot in
law be countenanced in law as being a
provision aimed at curing an illegality or
according ipso facto approval to an illegal act
of usurpation or encroachment. It is not
entitled to be viewed as either endorsing or
legitimizing
an
illegality.
Section
161
is
essentially aimed at enabling a party to switch,
barter or exchange land to the mutual benefit
of both parties. A party cannot first encroach,
trespass or intrude and then claim a right to
exchange. It is clearly not a provision aimed at
legalizing an encroachment. A person who has
encroached or trespassed upon land cannot
subsequently
turn
around
and
seek
condonation of that act or infraction by seeking
an exchange. A person seeking an exchange
must be one who is in lawful possession of land
which is offered in exchange. Viewed in any
other light, the provision may be abused as a
devise to accord legitimacy upon an act which
is illegal and unlawful. The institution which
appears to have encroached upon public utility
land cannot take shelter of an application
purported to have been made under Section
161 of the 1950 Act. (para 9)

Writ petition Rejected.

List of cases cited

1. Kamal Chand Singh V State of U.P. 2016 SCC
Online All. 770

2. Baba Sukku Maa Prabhudevi Inter College V.
State of U.P. 2019 SCC Online 4522
(Delivered by Hon'ble Yashwant Varma, J.)

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

2. This petition has been preferred
challenging the order dated 27 March 2012
passed by the Basic Education Officer,
Kaushambi rejecting the claim of the
petitioner for grant of salary and other
emoluments.

3. The petitioner contends that he
was duly selected and appointed on the
post of Clerk in the concerned institution
on 10 August 1983. That institution is
stated to have been taken on the grant in
aid list on 2 January 2006. It is the case set