Suresh Chandra Srivastava vs State of U.P. and others

Tarun Agarwala, J.—Heard the learned Counsel for the parties.

By means of this petition the petitioner has prayed for a writ of certiorari for the quashing of the order dated 30th August, 2007, passed by the District Supply Officer directing the Additional Director (Treasury and Pension) to recover an amount of Rs. 42,302.40 from the gratuity of the petitioner.

It transpires that the petitioner was initially appointed in the year 1967 in the Civil Supply Department at Allahabad and retired on 31st July, 2006 from the post of Supply Inspector. The impugned order has been passed for the recovery of the amount from his gratuity on the ground that the Department had erroneously fixed his salary at Rs. 560/ instead of Rs. 545/in the year 1979, and therefore, the excess amount paid to the petitioner was to be recovered from his gratuity. The petitioner, being aggrieved by the said order, has filed the present writ petition.

In Ram Briksh Ram v. State of U.P. and others, (2007) 2 UPLBEC 1544, a Division Bench of this Court held that if certain benefits, like payscale and grade was given to an employee incorrectly during his service period and that there was no misrepresentation or fraud played on his part, in that case, the excess amount paid to the employee could not be recovered, especially, when there was no fault on the part of the employee.

In Ramesh Chand Tyagi v. Director, Agriculture Marketing, Lucknow and another, (2007) 2 UPLBEC 1593, a similar relief was again granted by the Court. Similar view was again reiterated in Ram Murti Singh v. State of U.P. and others, (2006) 3 UPLBEC 2415 and in Awadh Nath. Tripathi v. Chief Development Officer, Sant Kabir Nagar and others, (2005) 1 UPLBEC 493.

In the present case, the Court finds that the Department itself had voluntarily fixed the salary to the petitioner and that there was no fraud or misrepresentation committed by the petitioner. Consequently, in view of the aforesaid judgments, the employer could not recover any excess payment made to the petitioner during his service period or after his retirement. Further, this Court finds that no opportunity or show cause notice was given to the petitioner before issuing the order for the recovery of the amount, and consequently, the said recovery order was violative of the principles of natural justice.

In view of the aforesaid, the impugned order cannot be sustained, and is quashed. The writ petition is allowed, and in the event any amount is deducted by the respondents from the gratuity, the same shall be paid to the petitioner within four weeks from the date of the production of the certified copy of this order.