Bhanwar Singh Ningwal vs Home Department (Police)
2021 Latest Caselaw 2700 MP

                                     1                       W.P. No.5528/2021

          THE HIGH COURT OF MADHYA PRADESH
                        Writ Petition No.5528/2021
          (Bhanwar Singh Ningwal Vs. State of M.P. and another)
Indore, Dated: 24/06/2021
     Shri Yash Tiwari, learned counsel for the petitioner.

      Shri Ranjeet Sen, learned Govt. Advocate for the State.

      Learned counsel for the petitioner has submitted that in the identical

circumstances, the coordinate Bench has passed the order dated 13/09/2017

in WP No.826/2017 in the case of Rajendra Bhawsar Vs. State of M.P. and

others.

      Learned counsel for the State has not disputed the said aspect of the

matter.

      The coordinate Bench in WP No. 826/2017 in the case of Rajendra

Bhawsar had passed the following order:-

      "The petitioner has filed present writ petition being aggrieved by the
  order dated 23/01/2017, by which, the respondent/s have recovered the

amount of Rs. 3,87,698/- from his retiral dues. The petitioner was appointed on the post of Assistant Sub-Inspector of Police ( Ministerial ) on 23/04/1979. Thereafter, he was promoted to the post of Sub-Inspector of Police and retired from service w.e.f. 01/08/2016. At the time of settlement of retiral dues, the respondent recovered the amount of Rs. 3,87,698/-, hence the present petition before this Court.

The respondent have filed return. The petitioner was given the benefit of ad-hoc increment of Rs. 70/- per month. The said mistake was discovered by the Treasury Office at the time of settlement of retiral dues. As per the circular dated 25/03/2006, the petitioner was not entitled to get the benefit of ad-hoc increment of Rs. 70/-, which was paid at the time of pay fixation in the year 1981. The said mistake has been perpetuated till his retirement.

Since the petitioner was not entitled for the said amount, it has rightly been recovered from the retiral dues of the petitioner. Shri L.C. Patne, counsel for the petitioner has placed reliance over

the judgment delivered in the case of State of Punjab and Others Vs. Rafiq Masih reported (2014 ) 8 SCC 883, and submitted that the respondent has recovered the amount paid in excess to the petitioner, but they are not justified in recovering the interest amount from the petitioner as he was not at fault in getting the said increment. The respondent has illegally deducted the interest amount of Rs. 1,64,990/-, therefore, at least recovery of interest may kindly be set aside. In the case of High Court of Punjab and Haryana and others Vs. Jagdev Singh reported in 2016 SCC Online SC 748, the Apex Court has held that where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The Officer furnished an undertaking while opting for the revised pay scale, then he is bound by the undertaking, then recovery should be made in reasonable installments. The Apex Court has quoted the judgment passed earlier in the case of State of Punjab Vs. Rafiq Masih, where recovery was held impermissible in law in case of Class-III and IV employees. 9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made. 10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: œ €

(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.”(emphasis supplied).

The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

6 It is true that the respondent may recover the excess amount from the retiral dues after his retirement in certain occasion, but petitioner was not at fault in getting ad-voc 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. Present petition stands disposed of accordingly.

Having regard to the submission made by counsel for the parties, the

present writ petition is also disposed of on the same terms by holding that the

direction issued in the case of Rajendra Bhawsar (supra) will apply mutatis

mutandis in the present case also.

C c as per rules.

(Subodh Abhyankar) Judge krjoshi

Digitally signed by KHEMRAJ JOSHI Date: 2021.06.26 10:21:59 +05'30'