Allahabad High Court
Ashok Kumar Jha vs State Of Up And 3 Others on 31 January, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:15984 Court No. - 35 Case :- WRIT - A No. - 435 of 2024 Petitioner :- Ashok Kumar Jha Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Dhananjay Kumar Mishra,C.S.C. Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
1. The petitioner has preferred the present petition, inter-alia, with the following prayers:
"(i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 9.5.2021 & 16.5.2023 passed by respondent nos. 2 & 3, so far as it relates to the petitioner and consequential orders dated 23.11.2023 & 31.12.2023 passed by respondent no.4, whereby the pay scale of the petitioner has been revised and recovery of the excess amount Rs. 5,25,199/- has been directed to be made from the salary of petitioner;
(ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant the grade pay as admissible to other similarly situated persons and not to recover the amount, which has already been paid to the petitioner."
2. Earlier also, certain orders were passed against the petitioner, where pay-scale of the petitioner has been revised and recovery of arrears of amount has been directed to be made. Aggrieved against the aforesaid, Writ-A No. 5960 of 2021 was filed by the petitioner which was allowed by a Co-Ordinate Bench of this Court vide its judgment and order dated 1.10.2021, which reads as follows:
"Heard learned counsel for the parties.
Learned counsels for the parties submit that the controversy involved in the instant writ petition is squarely covered by the judgment and order passed today in Writ-A No.7588 of 2020 (Kishan Pal Singh vs. State of U.P. and others).
Accordingly, for the reasons stated in judgment and order of date in Kishan Pal Singh (supra), the writ petition is allowed.
The impugned order, as well as, consequential orders, so far as it relates to the petitioner, are set aside."
3. On perusal of the aforesaid order, it reveals that the aforesaid order was passed in terms of the order passed in the case of Kishan Pal Singh Vs. State of U.P. and others passed in Writ-A No.5960 of 2021, decided on 1.10.2021, which reads as follows:
"Heard learned counsel for parties.
Present writ petition is preferred seeking following reliefs:-
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 15.06.2020 passed by the respondent no.2 so far as it relates to the petitioner and the order dated 24.6.2020 & consequential order dated 29.7.2020 passed respondent no. 3, whereby the pay-scale of the petitioner has been revised and recovery of the excess amount has been directed to be made;
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to grant the grade pay as admissible to other similarly situated persons and not to recover the amount, which has already been paid to the petitioner."
Learned counsel for the petitioner submits that the petitioner is serving as Head Jail Warder. He is aggrieved by the impugned order dated 15.6.2020 pursuant to which order of recovery from him has been ordered by the respondent on the ground that ACP benefits had been wrongly extended to him. It is contended that the aforesaid order has been passed without affording any opportunity of hearing to the petitioner. In support of his submission, he has placed reliance on the order dated 1.2.2021 passed in Writ A No.1014 of 2021 (Vijay Prakash Singh vs. State of UP and 4 others), wherein the Court has proceeded to allow the writ petition with following observations:-
"Accordingly, the writ petitioner is allowed. The impugned order dated 15 June 2020 insofar as it relates to the petitioner, is quashed. It is however left open to the respondents to proceed in the matter afresh in accordance with law and bearing in mind the requirement of the principles of natural justice.
All contentions of respective parties on merits are kept open."
Learned counsel for the petitioner submits that the present matter is squarely covered with the aforesaid judgement and as such, similar indulgence may also be accorded in his favour.
Learned Standing Counsel does not dispute the aforesaid factual and legal aspect of the matter.
Following the judgement in Vijay Prakash Singh's case (supra) the present writ petition is also allowed and the impugned orders, as well as consequential orders, so far as they relate to the petitioner, are set aside.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
4. While allowing the aforesaid writ petition, the orders passed in the case of Kishan Pal Singh (supra), which is similar to the case of the present petitioner, was set aside, however, the respondents were directed to pass a fresh order in accordance law bearing in mind the requirement of principles of natural justice.
5. It is argued that after the judgment and order dated 1.10.2021 passed in the earlier writ petition filed by the petitioner, a decision dated 19.8.2021 was taken by the Deputy Inspector General, Headquarters, Prison Administration & Reforms, U.P. setting aside the orders passed against the petitioners dated 15.6.2020 and the concerned Authorities were directed to pass a fresh order taking into consideration the law laid down by the Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White washer) & Others (2015) 4 SCC 334.
6. It is argued that pursuant to the aforesaid, now a fresh decision has been taken, by which again a claim set-up by the petitioner was rejected. It is argued that while passing the impugned orders, neither any notice has been provided to the petitioner, nor the law laid down by the Hon'ble Apex Court in the case of Rafiq Masih (supra) was taken note.
7. It appears from perusal of record that time and again, the orders were passed against the petitioner only for recovery of excess amount paid to the petitioner. In the case of Rafiq Masih (supra), it has already been held by the Hon'ble Apex Court that such kind of recovery could not be made. Paragraph 12 of the aforesaid judgment reads as follows:
"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 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."
8. In this view of the matter, learned Standing Counsel is granted two weeks' time to file personal affidavits of respondent nos. 2, 3 and 4 disclosing therein that under what circumstances, the impugned orders have been passed in violation of the judgment and order dated 1.10.2021 as well as violating the directions issued by Hon'ble Apex Court in the case of Rafiq Masih (supra)
9. List this matter in the additional cause list in top ten cases on 5.3.2024.
10. Until further orders of this Court, the effect and operation of the orders dated 9.5.2023 & 16.5.2023 passed by respondent nos. 2 and 3 respectively and orders dated 23.11.2023 & 31.12.2023 passed by respondent no.4 shall remain stayed.
Order Date :- 31.1.2024 saqlain