Madhya Pradesh High Court
Smt. Kiran Dubey vs The State Of Madhya Pradesh on 9 December, 2022
Author: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 9 th OF DECEMBER, 2022
WRIT PETITION No. 10212 of 2021
BETWEEN:-
SMT. KIRAN DUBEY W/O LATE SHRI VISHNU PRASAD
DUBEY, AGED ABOUT 70 YEARS, OCCUPATION:
RETIRED ASSISTANT TEACHER R/O HOUSE NO.1225,
NARMADA ROAD, GORAKHPUR JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AKASH CHOUDHARY, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER TRIBAL DEVELOPMENT
D EPARTM EN T SATPUDA BHAWAN BHOPAL
(MADHYA PRADESH)
3. DEPUTY COMMISSIONER TRIBAL
D E V E L O P M E N T DIST.JABALPUR (MADHYA
PRADESH)
4. ASSISTANT COMMISSIONER TRIBAL
D EV ELO PM EN T NOT MENTION (MADHYA
PRADESH)
5. DIVISIONAL PENSION OFFICER JABALPUR
D I V I S I O N COLLECTORATE DISTT.JABALPUR
(MADHYA PRADESH)
6. DISTRICT COLLECTOR JABALPUR
COLLECTORATE SOUTY CIVIL LINES (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS SHIKHA SHARMA, PANEL LAWYER)
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2
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner has filed this petition under Article 226 of the Constitution
of India while praying for following reliefs:-
(i) To summon the entire record from the respondents.
(ii) Upon holding the impugned recovery order dated 01.10.2020
(Annexure P/4) as arbitrary, unjust and bad in law; Quash and set aside
the same.
(iii) Further, command the respondents to refund the entire amount
recovered from the petitioner in pursuance of the impugned order dated
01.10.2020 (Annexure P/4) along with interest at admissible rates, on the
entire amount of Gratuity, Pension and Retiral dues which were belatedly
paid to the petitioner w.e.f. 01.11.2014, when payment of the same
became due;
(iv) Any other writ/order which this Hon'ble Court deem fit and proper in
the fact and circumstances of the case.
(v) Cost of the petition may also be awarded in favour of the petitioner."
The facts narrated in the petition reveal that the petitioner herein was
initially appointed on 10.05.1985 and ultimately superannuated while working as
Assistant Teacher on 31.10.2014. As a retiral dues of the petitioner were not
being paid, the petitioner filed a petition before this Court which was registered
as W.P.No.17096/2014 (Annexure P/1). The said writ petition was disposed of
by this Court while directing the respondent to settle the retiral dues of the
petitioner. The petitioner was then issued a charge-sheet and the said charge-
sheet was assailed by the petitioner by filing another petition before this Court
vide W.P.No.8125/2016 (Annexure P/2). The said writ petition was allowed and
departmental proceedings which were initiated against the petitioner were also
quashed. Thereafter, the petitioner was agitating her grievance as regards the
disbursement of her retiral dues. Vide communication dated 01.10.2020
(Annexure P/4), the petitioner was intimated that an excess amount of recovery
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is there against her to the tune of Rs.1,20,408/- and if the petitioner deposits the
said amount, then only her pension case would be processed. The petitioner
under compulsion deposited the said amount i.e. Rs.1,20,408/- thereafter, the
pension case of the petitioner could be processed. The said order dated
01.10.2020 contained in Annexure P/4 is being assailed by the petitioner in the
present petition.
Learned counsel for the petitioner contends that in the present case, the
respondent with an oblique motive, has issued the impugned order dated
01.10.2020 (Annexure P/4) as the respondents were keeping grudge against the
petitioner as the charge sheet was assailed by the petitioner on earlier occasion
by filing a petition before this Court and this Court allowed the petition and
charge-sheet was quashed. Therefore, the respondents issued the impugned
order dated 01.10.2020 (Annexure P/4). It is further contended by the counsel
for the petitioner that the impugned order and even the return filed by the
respondents nowhere reveal that as to under which head the said recovery was
recovered from the petitioner. The respondents have filed a return but in the
entire return nowhere stated by the respondents that under which head the said
amount of Rs.1,20,408/- was recovered from the petitioner after her retirement.
There is a vague averment in paragraph 2 of the return that the said recovery is
on account of some alleged incorrect fixation done in the year 1986, but the
details of such incorrect fixation has not at all being averred in their entire return.
It is contended by the counsel that the claim of the petitioner is being sought to
be disputed on the basis of indemnity bond which is contained in Annexure
R/3, but the said indemnity bond is blank and even there is no date mentioned
on which the said bond is to be executed.
Learned counsel contends that the impugned order of recovery goes
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contrary to the law laid down by the Apex Court in the case of State of
Punjab & ors. etc. vs. Rafiq Masih (White Washer) etc. (2015) 4 SCC
334. It is further contended by the counsel that the respondents are placing
reliance on the indemnity bond which was executed by the petitioner at the time
of her retirement and the effect of such undertakings which are executed by the
employees at the time of their retirement, has also been taken note of by this
Court in W.P. No.11338/2018 [Jagdish Kumar Singh (J.K. Singh) vs.
State of M.P. and others]. Therefore, submits that in the present case, under
the garb of execution of indemnity bond, recovery could not have been ordered
against the petitioner.
Per contra, learned counsel for the respondent/State submits that in the
present case, there was recovery against the petitioner on account of incorrect
fixation done in year 1986 and accordingly, the impugned communication which
is contained in Annexure P/4 dated 01.10.2020 was issued. As the petitioner
herein had already executed an indemnity bond at the time of her retirement,
which is contained in Annexure R/3, and as per the conditions incorporated in
the said indemnity bond, the respondents were entitled to carry out recovery,
the petitioner cannot assail the order of recovery subsequently as she had
executed an indemnity bond. It is further contended by the respondent that the
petitioner is now bound by the principle of estoppel and therefore, the writ
petition is not maintainable and in view of the law laid down by the Apex Court
in the case of High Court of Punjab and Haryana and Others vs. Jagdev
Singh, reported in (2016) 14 SCC 267, the petitioner having executed an
indemnity bond, cannot assail the order of recovery.
It is further contended by learned counsel for respondents/State, that in
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the light of the order passed in Rafiq Masih (White Washer) etc. (supra)
and Jagdev Singh (supra), there are two Division Bench decisions of this
Court, which are in conflict, and thus, the matter has been referred to a Larger
Bench in W.A. No.815/2017. Therefore, submits that no interference is
required.
No other point is pressed by the parties.
Heard the rival submissions and perused the records.
To find out as to against which head the amount of Rs.1,20,408/-has
been recovered from the petitioner, the stand of the respondents as asserted in
paragraph 2 of the return is being reproduced herein under :-
"2. Answering respondents most respectfully submit that from the relief
claimed and averments made in the instant writ petition reflects that
petitioner is mainly challenging the order dated 01.10.2020 passed by the
respondent No.4, whereby a recovery to the tune of sum of Rs. 1,20,408/-
has been imposed on the petitioner on account of some alleged incorrect
fixation done in the year 1986."
A perusal of the aforesaid paragraph no. 2 of the return reveals that the
respondents have made an attempt to demonstrate that on account of some
alleged incorrect fixation done in the year 1986, the impugned order dated
01.10.2020 (Annexur P/4) was issued. Paragraph 2 of the return is merely an
attempt to evade from the liability to demonstrate before this Court as to under
which head the recovery was proposed and carried out against the petitioner.
The averments made in paragraph 2 of the return, even are taken into
consideration on their face value then the indemnity bond which has been
produced on record as Annexure R/3 is not an indemnity bond which was
executed when the benefit of pay fixation was extended to the petitioner in the
year 1986. The issue pertaining to recovery came up before the Apex Court in
the case of Jagdev Singh (supra). In the said case there was an undertaking of
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the employee concerned, which was given at the time when excess payment was
made. In Jagdev Singh (supra) the Hon'ble Supreme Court ruled thus :
"11. 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.
12. 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."
[Emphasis supplied]
The Apex Court in the case of Jagdev Singh (supra) observed in para
11, that where an employee is clearly placed on notice that any payment found
to have been made in excess, would be required to be refunded. If such an
employee has furnished an undertaking while opting for the revised scale, he/she
is bound by the undertaking. Therefore, when benefit of fixation of revised pay
or increment is being extended to an employee, and before that if an employee
furnishes an undertaking, that if the payment which is being made to him/her, if
ultimately found to be in excess, the employee would be required to refund the
same. Therefore, the Apex Court clearly dealt with the situation where an
employee concerned had executed an undertaking at the time of opting for the
revised payscale. Jagdev Singh (supra) was not a case, where at the time of
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retirement the employee concerned had executed any indemnity bond.
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Therefore, under the garb of the law laid down by the Apex Court in the case of
Jagdev Singh (supra), respondents in the present case, cannot justify their
action of initiating recovery against the petitioner.
This Court also in the case of Jagdish Kumar Singh (J.K. Singh)
(supra), while dealing with such an indemnity bond, has held that such cases
are to be examined in the light of the decision rendered in the case of Jagdev
Singh (supra) and while dealing with the case of the petitioner therein,
observed that no undertaking was given by the petitioner therein, at the time
when excess payment was made. This Court in para 10 held as under :
"10. In the present case, it is relevant to notice that in
the return of the State there is not even a whisper as to whether
any undertaking was given by the petitioner at the time when
excess payment was made which is a clear indication of the fact
that no written undertaking was made by petitioner. In absence of
any written undertaking, the respondents are not authorized to
make any recover more so when there is no such averment by the
State that excess payment was made for reasons attributed to the
petitioner. Thus, the decjsion of Rafiq Masih (supra) squarely
covers the case of the petitioner and thus the petition is liable to
succeed."
[Emphasis supplied]
Thus, it is crystal clear that the present petitioner having not executed
any undertaking, at the time of availing the benefit of pay-fixation, cannot be
saddled with the liability to refund the said amount, inasmuch as the
respondents have no where pleaded in the return, that there was any fraud or
misrepresentation on the part of the petitioner, which persuaded the
respondents to extend the benefit of revised pay fixation.
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Therefore to consider the stand of the respondents in the present case in
the light of the Jagdev Singh (supra) it is first important to analyse as to
whether any indemnity bond was executed by the petitioner at the time of
availing the benefit of pay fixation in the year 1986. There is no date on the
indemnity bond which has been brought on record as Annexure R/3. If the
language used in said indemnity bond is read carefully, the same would reveal
that such indemnity bond is furnished by an employee at the time of or just
before retirement which is evident from the paragraph 2 of the said return filed
by the respondents.
As the respondents have failed to demonstrate that the indemnity bond
which is contained in Annexure R/3 was executed in the year 1986 when the
petitioner was extended the benefit of pay fixation, the respondents were not
justified in passing the impugned order dated 01.10.2020.
The Apex Court in Rafiq Masih (White Washer) etc. (supra) 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
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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
o r arbitrary to such an extent, as would far outweigh the equitable
balance of the employer's right to recover."
[Emphasis supplied]
In view of the law laid down by the Apex Court in the case of Rafiq
Masih (supra) if the impugned order dated 01.10.2020 (Annexure P/4) is
subjected to scrutiny, the same would reveals that there is an indemnity bond, to
recover the amount executed at the time of retirement of the petitioner which is
unsustainable in view of the law laid down by the Apex Court in the case of
Rafiq Masih (supra).
As the judgment relied upon by the respondents in the case of Jagdev
Singh (supra) is not applicable in the case at hand inasmuch as, in the present
case there is failure on the part of the respondent to demonstrate that at the
time of availing the benefit of pay fixation, the petitioner executed the
indemnity bond which is contained in Annexure R/3.
In view of the aforesaid, the impugned order dated 01.10.2020 (Annexure
P/4) by which, the recovery of amount of Rs.01,20,408/- was carried out
against the petitioner, stands quashed.
Respondents are directed to refund the said amount of Rs. 01,20,408/- to
the petitioner within a period of 90 days from the date of production of certified
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copy of the order passed today along with interest at the rate of 6% per annum
from October, 2010 till the date of actual payment.
Accordingly, the petition stands allowed.
(MANINDER S. BHATTI)
JUDGE
sp
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