Court No. - 36
Case :- WRIT - A No. - 5383 of 2021 Petitioner :- Sachidanand Pandey Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rituvendra Singh Nagvanshi,Narayan Dutt Shukla Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri R.C. Singh, learned Senior Advocate assisted by Shri Narayan Dutt Shukla, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
The petitioner, who has challenges the order dated 19.03.2021 passed by respondent no.3, whereby, the order dated 13.04.2005 passed by Joint Director Hand Loom and Textile, Directorate, Uttar Pradesh, Kanpur has been recalled and recovery proceeding has been initiated against the petitioner. Before the Court, it is undisputed that the said order has been passed without affording an opportunity of hearing to the petitioner. It is also not disputed that the aforesaid order would cause serious civil consequences.
Considering the hardship which may be caused to a class III and class IV employee if recovery is affected from such employee, the Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih reported in 2015 (4) SCC 334 has been pleased to lay down following principles in para 18:-
"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 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."
In view of the aforesaid, learned Standing Counsel submits that the ends of justice would merit the impugned order being set aside leaving it open to the respondent to proceed in the matter afresh.
Accordingly, the writ petition is allowed. The impugned order dated 19.03.2021 as well as consequential proceeding stand quashed and set aside. The matter shall stand remitted to the respondent No.3 for considering the entire issue afresh bearing in mind the observations made hereinabove. All contentions of respective parties on merits are kept open.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner 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.
Order Date :- 29.7.2021 A. Pandey