Madhya Pradesh High Court

Onkarsingh Sisodiya vs The State Of Madhya Pradesh on 3 August, 2021

Author: Subodh Abhyankar

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                                                                      WP No.13114/2021

         High Court of Madhya Pradesh, Jabalpur
                     Bench at Indore
                Writ Petition No.13114/2021 (s)
                    (Onkar Singh Sisodiya s/o Late Babulal Sisodiya
                                        Versus
                        The State of Madhya Pradesh & others)
Indore, Dated 03.08.2021
      Shri Manoj Manav, learned counsel for the petitioner.

      Shri Valmik Sakargayen, learned Panel Lawyer for the

respondent / State of Madhya Pradesh, on advance notice.

      Heard finally with the consent of the parties on the question of

admission.

                                  ORDER

By this writ petition under Article 226 of the Constitution of

India, the petitioner is seeking the following relief (s): -

"1. It is, therefore, prayed that this Hon'ble may be pleased to issue appropriate writ, order or direc- tion to quash the order dated 05.06.2021 (P/1).

2. That, the respondents may further be directed to refund the amount if recovered from the petitioner with an interest @ 12% per annum from the date of recovery to the date of actual refund.

3. That, any other relief which this Hon'ble Court deems fit may grant to the petition- er."

2. The case of the petitioner is that he was serving in the Home

(Police) Department on the post of Deputy Commandant; and

thereafter retired from the services on 30.06.2021. The petitioner

was given the benefit of revision of pay scale in the year 1990.

However, vide order dated 05.06.2021 (Annexure P/1) a recovery of

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total amount to the tune of Rs.3,03,737/- (rupees three lakh three

thousand seven hundred thirty seven) including principal amount of

Rs.1,78,041 and interest of Rs.1,25,696/- has been directed to be

recovered from the petitioner which was paid in excess with respect

to his fixation of pay, after thirty one years' of alleged fixation.

3. Shri Manoj Manav, learned counsel for the petitioner has

submitted that so far as the principal amount of the petitioner's pay

fixation is concerned (which has been given to the petitioner), he has

no objection regarding the recovery of the said amount. However, it

is submitted that the respondents are also bent upon to recover the

interest amount of the said principal amount, which cannot be

claimed by the State Government, as the petitioner was not at

fault, if excess amount has been paid to him by the respondents. It

is further submitted that the principal amount is Rs.1,78,041/-,

whereas the interest part of the same is Rs.1,25,696/-.

4. Learned counsel for the petitioner has also relied upon various

judgments rendered by the coordinate Bench of this Court. He has

also specifically referred to a decision rendered by the coordinate

bench of this Court vide order dated 13.09.2017 passed in Writ

Petition No.826/2017 (Rajendra Bhawsar v. State of M.P. and

others) wherein, in similar circumstances, this Court has held as

under: -

"6. It is true that the respondent may recover the

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excess amount from the retiral dues after his retirement in certain occasion, but petitioner was not at fault in getting ad-hoc increment of Rs.70/-. The respondent has recovered the amount paid in excess to the petitioner, but they have wrongly recovered the interest amount. Since the petitioner was not at fault, hence he is not liable to pay the interest, therefore, the respondents are directed to refund the interest amount of Rs.1,64,990/- to the petitioner within a period of 60 days from the date of production of certified copy of this order."

5. Learned counsel for the petitioner has further submitted that

even otherwise, according to Rule 65 of the Madhya Pradesh Civil

Services (Pension) Rules, 1976 (herein after referred to as the

Pension Rules of 1976), the amount of interest cannot be recovered

from a retired government employee, as the said rule refers to

recovery and adjustment of retiral dues of the government employee,

but does not include interest. It is thus submitted that the amount of

interest claimed by the respondent / State in the impugned order is

liable to be quashed.

6. To support his contentions, Shri Manoj Manav, learned

counsel for the petitioner has also relied upon the decision of a

coordinate Bench of this Court in the case of Ramesh Chandra

Gupta v. State of M.P. and others reported in 2010 (4) MPLJ 345

wherein this Court has held that the State Government cannot

recover any amount which is not mentioned in Rule 65 of the

Pension Rules of 1976.

7. On the other hand, learned Panel Lawyer for the respondent /

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State has opposed the prayer. It is submitted that this Court under

consideration of the decision of the Larger Bench as in Writ

Appeal No.815/2017 the Division Bench of this Court has referred

to the question of excess amount of recovery from the retired

employee to the Larger Bench.

8. Learned counsel has also relied upon the decision rendered

by the coordinate Bench of this Court passed in Writ Petition

No.11497/2020 (Manohar Joshi v. Home Department and

others) vide order dated 18.08.2020, whereby this Court has also

taken into account the decision rendered in the case of Rajendra

Bhavsar (supra) and has held that the aforesaid case is based on

equity only as no provisions of law is referred to.

9. On due consideration of the rival submissions and on perusal

of the documents placed on record, this Court is of the considered

opinion that the petitioner is entitled to the claim, that he is not

liable to pay the amount of interest to be recovered with the

principal amount. At this juncture, it would also be useful to refer to

Rule 65 of the Pension Rules of 1976 which reads, as under: -

"65. Recovery and adjustment of Government dues.

(1) It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement. (2) Where a retiring a Government servant does not clear the Government dues and such dues are ascertainable-

(a) an equivalent cash deposit may be taken from him; or

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(b) out of gratuity payable to him, his nominee or legal heir, an amount equal to that recoverable on account of ascertainable Government dues shall be deducted.

Explanation-

1.The expression "ascertainable Government dues includes balance or house building or conveyance advance, arrears of rent and other charges pertaining to occupation of Government accommodation, over- payment of pay and allowances and arrears of income- tax deductible at source under the Income Tax Act, 1961 (No.43 of 1961)."

10. In the case of Ramesh Chandra Gupta (supra), this court in

para 9 has held as under :-

"9. So far as the applicability of Rule 65 of Pension Rules is concerned, the plain language of the rule makes it very clear that firstly; the amount should fall into the category of "dues" and secondly; such dues should be specified dues like, house building or conveyance advance or arrears of rent or over payment of salary or allowance etc. as prescribed in the Explanation appended to Rule 65, but it would not include "Miscellaneous Advance" upon not falling into the category of "dues" therefore, it would be difficulty to stretch the scope of Rule 65 to such un- imaginable length and breadth and only for the purpose of searching some source of power for withholding retiral Dues of an employee, no such offence could be permitted to be done with an innocently carved out provision of law, by allowing the State Government to commit such an illegality."

11. So far as the reference of the claim of the excess amount from

a retired government employee to a larger Bench is concerned, in

Writ Appeal No.815/2017 (supra), the Division Bench of this Court

has formulated the following questions: -

"1) Whether the recovery can be ordered to be affected from the pensionary benefits or from the

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salary in view of an undertaking or indemnity Bond taken by the employer before the grant of benefit of pay refixation.

2) Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P. Civil Services Pension Rules, 1976

3) Whether the undertaking sought at the time of grant of financial benefits on account of refixa- tion of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another).

4) Any other question which is raised for deci- sion before the Large Bench or which the Larger Bench considers arising out of the issues can- vassed."

12. Apparent from the aforesaid, the question of interest is not

referred to the Larger Bench and even if it is assumed that the issue

of interest is intrinsic in the aforesaid reference, in that case also, the

respondents ought to have stayed their hands till a final order is

passed by the larger bench. So far as the decision rendered by the

coordinate Bench of this Court in the case of Manohar Joshi

(supra) is concerned, this Court has not considered the Rule 65 of

the Pension Rules of 1976.

13. On the aforementioned analysis of the facts and the

circumstances, this Court is of the considered opinion that the

amount of interest which is claimed by the State Government cannot

be sustained in the eyes of law. Thus, the impugned order dated