Neutral Citation No. - 2025:AHC-LKO:39139 Court No. - 5 Case :- WRIT - A No. - 6538 of 2025 Petitioner :- Ram Pher Yadav Respondent :- State Of U.P. Thru. Addl. Chief Secy. Urban Development Vidhan Sabha Marg Lko. And 3 Others Counsel for Petitioner :- Manoj Kumar Pandey,Shashwat Bajpai Counsel for Respondent :- C.S.C.,Ramesh Chandra Pandey Hon'ble Abdul Moin,J. Heard learned counsel for the petitioner, Sri Sahrash Srivastava, learned Additional Chief Standing counsel appearing on behalf of the respondents no. 1, 3 & 4 and Sri Ramesh Chandra Pandey, learned counsel for the respondent no. 2. With the consent of learned counsel appearing on behalf of the contesting parties, the instant writ petition is being finally decided. Under challenge is the order dated 31.05.2022 passed by the respondent no. 4 i.e Deputy Director, Local Fund Audit, Uttar Pradesh, Lucknow and the consequential order dated 12.10.2022, copies of which have been filed as annexures 2 & 3 to the writ petition whereby an amount of Rs. 1,12,872/- has been directed to be recovered from the gratuity payable to the petitioner and in fact has been deducted. Contention of learned counsel for the petitioner is that the petitioner has retired on attaining the age of superannuation on 31.12.2021 while working on the post of Pump Attendant which is a Class-IV post. Subsequent to the retirement of the petitioner, the order impugned has been issued which indicates that on account of certain excess amount that had been made to the petitioner during his service which is the amount of Rs. 1,12,872/- consequently, the said amount has been directed to be recovered from the gratuity payable to the petitioner and in face the deduction has been made. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of State of Punjab and Ors Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 to contend that the Apex Court has categorically held that though it is not possible to postulate all situations of hardship which would govern an employee on the issue of recovery where payments have mistakenly been made by the employer in excess of their entitlement but certain situations have been laid down in which the Hon'ble Supreme Court has held that no recovery could be possible from a retired employee. Recovery from employees belonging to Class III and IV service and recovery from the retired employees has been specifically prohibited by the Hon'ble Supreme Court. For the sake of convenience, the relevant observation are quoted below:- "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." When the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the case of Rafiq Masih (supra) what clearly comes out is that legally no such recovery could have been made from the petitioner's gratuity after his retirement. It is also not the case of the respondents that any fraud or misrepresentation was done by the petitioner in the pay fixation which has now resulted in the said fraud being discovered and recovery being made from the petitioner's gratuity after his retirement. Accordingly, taking into consideration the aforesaid discussion, the writ petition is allowed. The impugned orders dated 31.05.2022 & 12.10.2022, copies of which are Annexure-2 & 3 respectively to the petition, are set-aside. A writ of mandamus is issued commanding the respondent no.2 i.e Executive Officer, Nagar Palika Parishad, Raibareli to pay the deducted amount of Rs.1,12,872/- to the petitioner within a period of four weeks from the date of receipt of a certified copy of this order. While refunding the aforesaid amount, the respondents shall consider the payment of interest on the aforesaid amount as per rules. Order Date :- 9.7.2025 Pachhere/- Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench