# U.O.I. & Anr v. Mohd. Yunush & Ors

- **Citation:** (2023) 9 ILRA 427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Writ-A No. 33686 of 2017
- **Bench:** Saumitra Dayal Singh, Rajendra Kumar -Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-o-i-anr-v-mohd-yunush-ors-50807
- **Pages:** 5

## Headnote

A. Practice and Procedure - Constitution
of India - Article 226 - Writ - First time
the objection regarding the delay in filing
the proceeding before the Tribunal was
raised in High Court - Permissibility - No
objection regarding delay was pressed
before Tribunal during oral hearing - No
pleading regarding delay was raised in
writ petition - Effect - Held, the issue of
delay and laches that may have been
available to the Union of India, though
raised before the learned Tribunal, was
not pressed at the stage of oral hearing.
Consequently, the Tribunal has not dealt
with this - Once the U.O.I.had thus
waived its right to press the objection as
to limitation before the Tribunal, it may
not be allowed to resurrect the ground of
delay, in the present proceedings that
arise by way of judicial review of the order
of the Tribunal. (Para 7 and 8)

B. Service Law - Excess payment of salary
was alleged to be made - Deduction from
retiral dues - Permissibility - No notice
during the service was ever issued - No
case of excess payment against the
undertaking that it may be reversed in
future was there - Effect - Small amount
of alleged excess payment, how far
warrant interfere in writ jurisdiction -
Held, excess amount of Rs. 2,16,947/-
was not paid in lump-sum. Rather it came
to be wrongly paid out to the applicantrespondent by way of excess payment of
salary, paid month to month - Further
held, the total amount paid is too small
and
not
deserving
to
warrant
any
interference by this Court, in exercise of
its extraordinary jurisdiction under Article
226 of the Constitution of India. (Para 6,
17, 18 and 20)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

9 All. U.O.I. & Anr. Vs. Mohd. Yunush & Ors.
427
----------
(2023) 9 ILRA 427
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE RAJENDRA KUMAR -IV, J.

Writ-A No. 33686 of 2017

U.O.I. & Anr. ...Petitioners
Versus
Mohd. Yunush & Ors. ...Respondents

Counsel for the Petitioners:
Sri Saurabh Srivastava, Sri Krishna Agarwal, Sri
Manoj Kumar Singh, Sri Vijay Kumar Singh

Counsel for the Respondents:
Sri Santosh Kumar MIshra

A. Practice and Procedure - Constitution
of India - Article 226 - Writ - First time
the objection regarding the delay in filing
the proceeding before the Tribunal was
raised in High Court - Permissibility - No
objection regarding delay was pressed
before Tribunal during oral hearing - No
pleading regarding delay was raised in
writ petition - Effect - Held, the issue of
delay and laches that may have been
available to the Union of India, though
raised before the learned Tribunal, was
not pressed at the stage of oral hearing.
Consequently, the Tribunal has not dealt
with this - Once the U.O.I.had thus
waived its right to press the objection as
to limitation before the Tribunal, it may
not be allowed to resurrect the ground of
delay, in the present proceedings that
arise by way of judicial review of the order
of the Tribunal. (Para 7 and 8)

B. Service Law - Excess payment of salary
was alleged to be made - Deduction from
retiral dues - Permissibility - No notice
during the service was ever issued - No
case of excess payment against the
undertaking that it may be reversed in
future was there - Effect - Small amount
of alleged excess payment, how far
warrant interfere in writ jurisdiction -
Held, excess amount of Rs. 2,16,947/-
was not paid in lump-sum. Rather it came
to be wrongly paid out to the applicantrespondent by way of excess payment of
salary, paid month to month - Further
held, the total amount paid is too small
and
not
deserving
to
warrant
any
interference by this Court, in exercise of
its extraordinary jurisdiction under Article
226 of the Constitution of India. (Para 6,
17, 18 and 20)

Writ petition dismissed. (E-1)

List of Cases cited:

1. St. of Punjab Vs Madan Singh; (1974) 3 SCC
90

2. Dayal Singh Vs U.O.I.; (2003) 2 SCC 593

3. Director of Inspection of Income Tax
(Investigation) Vs Pooran mal & Sons; (1975)
4SCC 568

4. High Court of Punjab and Haryana & ors. Vs
Jagdev Singh; (2016) 14 SCC 267

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

(Delivered by Hon'ble Saumitra Dayal
Singh, J. & Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Krishna Agarawal,
learned counsel for respondents-petitioners
and Sri S.K. Mishra, learned counsel for
applicant-respondent.

2. The writ petition is directed against
the final order dated 31.03.2017 passed by
the
Central
Administrative
Tribunal,
Allahabad Bench, Allahabad in Original
Application No. 330 of 00079 of 2015,
Mohd. Yunush v. Union of India and
Another. By that order, the Tribunal has
allowed
the
original
application
and
428 INDIAN LAW REPORTS ALLAHABAD SERIES
directed the respondents-petitioners for
payment of Rs. 2,16,947/- to the applicantrespondent that had been deducted at the
time of payment of retiral dues to the
applicant-respondent consequent to his
retirement
on
attaining
the
age
of
superannuation on 31.07.2010.

3. The undisputed facts of the case
are, the applicant-respondent retired on the
post of J.E.-II, from the East Central
Railway, Mughalsarai. During his years in
service, the applicant-respondent suffered a
medical condition, for which, he was
hospitalized at the Railway Hospital,
Mughalsarai and thereafter referred to
higher medical centre. Consequent to his
recovery, he was categorized in the lower
medical category C-1 grade on 29.07.2010,
just three days before his attaining the age
of superannuation. While preparing his
pension papers, the Central Railway
Authorities realised, excess payment had
been made to the applicant-respondent
month to month, totaling Rs. 2,16,947/-.
That was deducted.

4. Being aggrieved, the applicantrespondent
first
approached
the
departmental authority, who rejected his
claim.
Being
aggrieved,
the
privaterespondents filed the Original Application,
giving rise to the present petition. It is true
that a counter affidavit had been filed by
the Union of India and plea of delay had
been raised therein. However, on perusal of
the order of the Tribunal, it appears that no
such plea was pressed at the stage of
hearing. Paragraph 3 of the order of the
Tribunal contains the contentions raised by
the Union of India, which reads as below :-

"Per contra, the respondent's counsel
stated that the letter dated 07.07.2014
cannot be an impugned order as this is an
information, received by the applicant,
through Right to Information Act hence on
this account only the O.A. deserves to be
dismissed. Counsel for the respondents
stated that the respondents have constituted
the medical board, which found the
applicant unfit in B-1 and B-2 category and
fit in C-1 category and below with glass for
D.V/NV. Counsel for the respondent stated
that the applicant has no leave balance in
his account hence the question of leave
salary does not arise."

5. Consequently, the Tribunal has not
dealt with the issue of delay.

6. On the merit issue, the Tribunal has
found that no show cause notice was ever
issued to the applicant-respondent during his
years in service, seeking to reverse the alleged
excess payment made to the applicantpetitioner. Considering the loss suffered,
calling for sympathetic consideration of his
case, the Tribunal has allowed the Original
Application and provided for refund of the
wrongly deducted amount Rs. 2,16,947/-.

7. Having heard the learned counsel
for the parties and having perused the
record, we find no good ground to interfere
in the facts of the present case. In the first
place, the issue of delay and laches that
may have been available to the Union of
India, though raised before the learned
Tribunal, was not pressed at the stage of
oral hearing. Consequently, the Tribunal
has not dealt with this.

8. Once the Union of India had thus
waived its right to press the objection as to
limitation before the Tribunal, it may not
be allowed to resurrect the ground of delay,
in the present proceedings that arise by way
of judicial review of the order of the
Tribunal.
9 All. U.O.I. & Anr. Vs. Mohd. Yunush & Ors.
429

9. In State of Punjab v. Madan
Singh, (1974) 3 SCC 90, where, issue of
delay and laches had not been raised before
the High Court, the issue was not allowed
to be raised before the Supreme Court. It
was observed :-

"5. It was urged on behalf of the State
that the High Court should not have
granted any relief in the writ petitions as
the petitioners were guilty of laches
inasmuch as they approached the Court
after a long delay. This contention does not
appear to have been urged before the High
Court. The High Court having exercised its
discretion in granting the reliefs asked for,
we see no reason to interfere with its
discretion. "

10. In the context of writ jurisdiction
of the High Court (where delayed writ
proceeding had been entertained on merits),
the Supreme Court in Dayal Singh v.
Union of India, (2003) 2 SCC 593,
observed as below :-

"41. It was submitted that the
respondents having filed a writ petition
after a period of eight years, the same
ought not to have been entertained.
Primarily a question of delay and latches is
a matter which is required to be considered
by the writ court. Once the writ court has
exercised its jurisdiction despite delay and
latches on the part of the respondents, it is
not for us at this stage to set aside the
order of the High Court on that ground
alone particularly when we find that the
impugned judgment is legally sustainable."

11. Also, we see no fact pleaded by
the Union of India and therefore, we find
no error was committed by the Tribunal in
not considering the issue of delay. The
ground of delay or laches may be a ground
available to oppose a judicial proceeding
before any Court of law or Tribunal.
However, it remains an objection to the
remedy sought. It may be waived by the
party in whose favour it may work, either
explicitly or impliedly.

12. Even, in the context of a rigid
period of limitation prescribed under
Section 132(5) of the Income Tax Act,
1961, in Director of Inspection of Income
Tax (Investigation) v. Pooran mal &
Sons, (1975) 4SCC 568, it was found to be
waived by the party / assessee to whose
benefit, it otherwise applied. It was
observed :-

"10. But the most important principle
on the basis of which the order of the
Income-tax Officer should be upheld is that
it is in pursuance of an agreement between
the parties which has obtained the
imprimaturs of the Court that this order
has been made. The period of limitation is
one intended for the benefit of the person
whose property has been seized. It is open
to him to waive it. We consider that to hold
that the period of ninety days which is
mentioned in 132(5) is an immutable one
would cause more injury to the citizen than
to Revenue. It is, therefore, open to the
aggrieved person, as happened in this case,
to agree to a fresh disposal of the case by
the Income-tax Officer and thereby waive
the period of limitation."

13. Since in the present case, the
objection as to limitation was raised in the
counter affidavit filed before the Tribunal
but was not pressed at the stage of oral
hearing, the same is treated to have been
waived, by necessary implication. Even in
the present writ petition, no pleading has
been raised to assert that the ground of
delay, though pressed at the stage of oral
430 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing before the Tribunal, was not
considered by it.

14. Therefore, we cannot accept the
contentions of the learned counsel for the
respondent-petitioner that there was gross
delay on the part of the applicantrespondent in approaching the Tribunal.

15. As to merits, no reliance may be
placed on the decision of the Supreme
Court in High Court of Punjab and
Haryana and Others v. Jagdev Singh,
(2016) 14 SCC 267, inasmuch as the
distinction drawn by the Supreme Court, in
that case (from the pre-existing ratio in
State of Punjab and Others v. Rafiq
Masih (White Washer) and Another,
(2015) 4 SCC 334), is wholly inapplicable
to the present facts. That distinction arose
on the own undertaking given by the
employee at the stage of the disputed
excess payment being paid out to him, first
i.e. when it was disbursed.

16. Seen in that light, in High Court
of Punjab and Haryana and Others v.
Jagdev Singh, (2016) 14 SCC 267, it was
observed :

"10. In State of Punjab & Ors etc. vs.
Rafiq Masih (White Washer) etc. this
Court held that while it is not possible to
postulate all situations of hardship where
payments have mistakenly been made by an
employer, in the following situations, a
recovery by the employer 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."
(emphasis supplied).

11. The principle enunciated in
proposition (ii) above cannot apply to a
situation such as in the present case. In the
present case, the officer to whom the
payment was made in the first instance was
clearly placed on notice that any payment
found to have been made in excess would
be required to be refunded. The officer
furnished an undertaking while opting for
the revised pay scale. He is bound by the
undertaking."

(emphasis supplied)

17. Any amount that may have been
thus paid out in excess against such an
undertaking - that it may be reversed in
future would, remain provisional and/or a
conditional payment that may remain
contingent to an event, in future. Such is
not the case here.

18. In the present case, according to
the
respondent-petitioner,
the
excess
amount of Rs. 2,16,947/- was not paid in
lump-sum. Rather it came to be wrongly
paid out to the applicant-respondent by way
of excess payment of salary, paid month to
month from 17.06.2009 to 31.07.2010.
9 All. Dr. B.K. Gupta Vs. Judge Small Cause Court, Agra & Anr.
431

19. Seen in that light, there is
absolutely no pleading or allegation that the
petitioner, who was recovering from his
medical condition, had played any role in
obtaining such excess payment. Therefore,
only this much may be concluded in the
present facts that excess payment came to
be made to the applicant-respondent owing
to the mistake committed by the employer.

20. Then it may also not lost sight, the
employee is not claiming any payment
from this Court. That relief was claimed
before the Tribunal. It has been granted.
The total amount paid to the applicantrespondent is not more than Rs. 2,16,947/-.
It is too small and not deserving to warrant
any interference by this Court, in exercise
of its extraordinary jurisdiction under
Article 226 of the Constitution of India. No
patent error of law shown to have been
committed by the Tribunal as may require
that interference to be made.

21. For the reasons given above and
the order of Tribunal being based on facts
and law, we decline to exercise our
jurisdiction.

22. In view of above, the present
petition is dismissed. No order as to cost.
----------
(2023) 9 ILRA 431
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 36773 of 2011

Dr. B.K. Gupta ...Petitioner
Versus
Judge Small Cause Court, Agra & Anr.
 ...Respondents
Counsel for the Petitioner:
Mr. Swapnil Kumar

Counsel for the Respondents:
C.S.C., Sri Manoj Goswami

A.
Tenancy
Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Mandamus
-
Scope
-
Can
writ
of
mandamus be issued to execute a decree
- Explained - Eviction - Landlord's suit for
evicting the Government-tenant u/s 20 of
UP Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 was decreed
ex parte - Delivery of possession sought -
Application under O. IX R. 13 CPC was
rejected, which was confirmed by the
revisional court - Objection u/s 47 CPC of
the St. was also rejected, which was
confirmed upto High Court - Effect - In
Execution case, writ of possession was
issued, against which the SCC Revision of
St. was also dismissed - The learned
Judge has mentioned the fact that the
police personnel have refused to comply
with the writ of possession, saying that
they would vacate only if the higher
officials of the Police order them to do so
- Non-delivery of possession compelled
the petitioner to file writ petition - Held,
respondents are bent upon obstructing
the decree, utilizing the brute force of the
St. at their command to flout it -
Execution is a self-sufficient and effective
process to implement a decree and a writ
of mandamus invariably to execute it
ought not issue - In a rare situation to
abate injustice, writ of mandamus can be
issued to execute a decree of the Civil
Court - A mandamus can be viewed as a
panacea to undo all wrongs, where there
is a right, but no mode of redress or one
that is effectual. (Para 5, 16, 70, 71, 72,
73, 77, 87, 90 and 96)

B. Constitution of India - Article 300-A -
Right
to
property
-
Depriving
the
property's right without authority of law -
Misuse of St. machinery - Held, the St. of
U.P. or the police officers, who are
occupying the suit property on behalf of
the St., are prima facie not the owners, as
they say they are, and which, so far they