Neutral Citation No. - 2025:AHC-LKO:10833 Court No. - 6 Case :- WRIT - A No. - 8562 of 2024 Petitioner :- Ishaq Ali Respondent :- State Of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Irrigation Deptt. Lko. And 3 Others Counsel for Petitioner :- Ravi Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J. 1. Heard Sri Ravi Pratap Singh, learned counsel for the petitioner as well as learned Standing Counsel for the respondents. 2. It has been submitted by learned counsel for the petitioner that petitioner was initially appointed on the post of "Nalkoop Mistri" on 09.06.1993 in Nalkoop Khand, Lakhimpur Kheri and continued on the said post till his superannuation on 31.01.2022. 3. It is next submitted by learned counsel for the petitioner that during the course of petitioner's employment no inquiry or disciplinary proceedings were conducted against him. The grievance raised by the petitioner in the present writ petition is that by means of impugned order dated 12.05.2022, passed by the Executive Engineer, Nalkoop Khand, Lakhimpur Kheri, the respondents have sought to re-fix salary of the petitioner from 2009 onwards, stating that there was error in fixation of salary of the petitioner, due to which higher salary was given to him and consequently, had sought to recover the amount of Rs.10,93,916/- from the gratuity payable to the petitioner. The said fact has also been mentioned in the impugned order dated 12.05.2022, stating that the amount shall be deducted from the gratuity. 4. It has been submitted by learned counsel for the petitioner that no opportunity of hearing was given to him before passing the impugned order and also that no recovery can be made from the post retiral dues of the petitioner who was working on Class IV post. He has relied upon the judgment of Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (white washer), (2015) 4 SCC 334, wherein the Court has held as under :- "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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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." 5. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court rendered in the case of Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and Others, (2014) 16 SCC 444, stating that no recovery could have been made beyond the period of 34 months, in the light of Government Order dated 16.01.2007 and accordingly, recovery made against the petitioner is illegal and arbitrary and deserves to be set aside. 6. Apart from above, it is submitted that there is no provision under which recovery can be made from the amount of gratuity payable to a Government servant. It is submitted that only provision pertaining to recovery from post retiral dues is provided under Article 351A and 919A of the Civil Service Rules and that too in a situation where loss has been caused to the State exchequer. It is submitted that in the present case no inquiry has been conducted against the petitioner and on the face of it the impugned order is illegal and arbitrary inasmuch as no opportunity of hearing was given to the petitioner and there is no provision under which recovery can be made from the amount of gratuity payable to the petitioner. 7. Accordingly, impugned order dated 12.05.2022, is hereby set aside. The writ petition is allowed. 8. Respondent are directed to refund the amount recovered from the gratuity of the petitioner along with interest at the rate of 10% from the date of deduction till the date of payment, with expedition and no later than six months from the date of production of certified copy of this order before the competent authority. Order Date :- 18.2.2025 A. Verma (Alok Mathur, J.) Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench