Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shankar Lal Yogi on 23 February, 2021
Author: Sushrut Arvind Dharmadhikari
1
THE HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
RP-106-2021
(State of M.P. & Ors. Vs. Shankar Lal Yogi)
Gwalior, Dated : 23/02/2021
Shri R.P. Singh, learned Government Advocate for the
petitioners/State.
Shri Arun Katare, learned counsel for the respondent.
Heard on IA No.602/2021, an application under Section 5 of
Limitation Act seeking condonation of delay of 71 days in filing the review
petition.
Taking into consideration the reasons assigned in the application
which is duly supported by an affidavit of OIC of the case, sufficient cause
is made out to condone the delay of 71 days in filing the instant review
petition.
Accordingly, I.A No. 602/2021 is allowed. Delay of 71 days in filing
the instant review petition is hereby condoned.
This review petition under Order 47 Rule 1 of CPC has been filed
seeking review of order dated 05/12/2020 passed in W.P. No.15861/2019 in
the light of the law laid down by the Hon'ble Supreme Court in the case of
State of Punjab & Ors. Vs. Rafiq Masih (White Washer) as reported in
(2015) 1 M.P.H.T. 130 (SC). The operative portion of the order dated
05/12/2020 passed in W.P. No.15861/2019 is reproduced below:-
"As per the principle of law laid down by the Supreme
Court, in my opinion, recovery of an amount of
Rs.1,96,980/- from the retiral dues of the petitioner is
illegal. Consequently, the petition is allowed. The
respondents are directed to refund the amount of
Rs.1,96,980/- to the petitioner within a period of three
THE HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
RP-106-2021
(State of M.P. & Ors. Vs. Shankar Lal Yogi)
months from the date of receipt of certified copy of this
order passed today. In case, the amount is not refunded
within the aforesaid period, the same shall carry
interest @ 9% per annum till the date of payment. No
order as to costs."
Learned counsel for the petitioner/State contended that though in the
reply filed in the writ petition, a specific stand with regard to undertaking of
the respondent for recovery, in case of any excess payment made to him by
the Government was not considered by this Court while setting aside the
order of recovery. He further contended that Rule 65 of the Madhya Pradesh
Civil Services (Pension) Rules, 1976 imposes duty on every retiring
Government Servant to clear dues before the date of his retirement and if the
same are not clear than it could be recovered from gratuity payable to him. It
is mandatory provision as laid down in Rule 65 of Rules, 1976 could not be
brought before knowledge of the Hon'ble Court in the reply filed by the
petitioner/State and during the course of arguments.
It is also submitted by learned counsel for the petitioner/State that in
the matter of refund Division Bench of this Court Principal Seat at Jabalpur
in W.A. No.815/2017 vide order dated 11/04/2018 has referred the matter to
the Larger Bench to consider the following questions :-
"1. Whether the recovery can be ordered to be affected
from the pensionary benefits or from the 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
of an employee can be made in exercise of power
THE HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
RP-106-2021
(State of M.P. & Ors. Vs. Shankar Lal Yogi)
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 re fixation
of pay is a forced undertaking and thus, not
enforceable in light o f judgment of Supreme Court
in (1986) 3 SCC 136 (Central Inland Water
Transport Corporation Limited and Another Vs.
BrojoNath Ganguly and Another).
4. Any other question which is raised for decision
before the Larger Bench or which the larger Bench
Considers arising out of the issues canvassed."
Learned counsel for the petitioner further contended that aforesaid
writ appeal is pending consideration, therefore, order dated 05/12/2020
passed in W.P. No.15861/2019 be restored to its original number and await
the decision of writ appeal.
On the other hand, Shri Arun Katare, Advocate appearing for the
respondent submitted that there is no apparent error on the face of record so
as to call for interference in the order under review. So far as the ground of
undertaking taken from the respondent herein is concerned, the same was
taken at the time of retirement of respondent in the year 2016 and the same
was not given in lieu of re-fixation of pay in the year 1996. As such, it
cannot be said that undertaking was given by the respondent for the purpose
of recovery of amount which was already paid to him much prior to his
retirement. So far as referral of the matter to Larger Bench is concerned,
none of the questions referred are attracted to the facts and circumstances of
the present case. This Court has rightly passed the order in the writ petition
THE HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
RP-106-2021
(State of M.P. & Ors. Vs. Shankar Lal Yogi)
which does not at all warrant interference of this Court, therefore, this
petition liable to be dismissed.
Heard learned counsel for the parties and perused the record.
The Apex Court in the case of S. Bagirathi Ammal vs Palani
Roman Catholic Mission reported in (2009) 10 SCC 464 has held that in
order to seek review of the order, it has to be demonstrated that the
impugned order suffers from error contemplated under Order 47 Rule 1 of
CPC, which is apparent on the face of the record and not an error which has
to be fished out and searched. In another case of State of West Bengal &
Ors vs Kamal Sengupta & Anr. reported in (2008) 8 SCC 612, the Apex
Court has held that party cannot be permitted to argue in-novo under the
garb of review.
Learned counsel for the petitioner could not point out apparent error
on the face of the record, therefore, this Court is of the considered opinion
that none of the grounds available for invoking the provisions of Order 47
Rule 1 of CPC is made out in the present petition. Accordingly, review
petition fails and is hereby dismissed.
(S.A. Dharmadhikari)
Judge
rahul
RAHUL SINGH PARIHAR
2021.02.25 18:46:36
+05'00'
