Madhya Pradesh High Court
Prof. S.K.Kasyap vs The State Of Madhya Pradesh on 10 March, 2022
Author: Sushrut Arvind Dharmadhikari
W.P. No. 21395/2018
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 10th OF MARCH, 2022
WRIT PETITION No. 21395 of 2018
Between:-
PROF. S.K. KASYAP, S/O LATE SANTRAM
KASYAP, AGED ABOUT 68 YEARS,
OCCUPATION: RETIRED FROM SERVICE,
R/O H.NO. G-5, FIFTY QUARTERS,
DHANARE COLONY, KANDELI, DISTT.
NARSINGHPUR (MADHYA PRADESH)
.....PETITIONER
(DR. R.B. DUBEY, LEARNED COUNSEL FOR THE PETITIONER)
AND
THE STATE OF MADHYA PRADESH
THROUGH THE SECRETARY,
DEPARTMENT OF HIGHER EDUCATION,
1.
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
THE PRINCIPAL GOVT. P.G. COLLEGE,
2.
NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENTS
(SMT. GULAB KALI PATEL, LEARNED GOVERNMENT ADVOCATE FOR THE
RESPONDENTS/STATE)
This petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of rival parties, the matter is heard finally.
1. In this petition under Article 226 of the Constitution of India, the
petitioner has assailed the pension payment order so far as recovery of amount
of Rs.80,000/- has been made from the retiral dues of the petitioner.
W.P. No. 21395/2018
2. Brief facts giving rise to filing of present petition is that the petitioner is
aggrieved by order of recovery after retirement. The grievance of the petitioner
is that neither affording any opportunity of hearing nor issuance of show cause
notice, the said amount has been deducted from the retiral dues of the
petitioner. The petitioner was neither found guilty of any misconduct nor held
guilty for any offence in the criminal proceedings. The inaction on the part of
the respondents is in flagrant violation of principles of natural justice. The
petitioner has superannuated in the year 2014 whereas the recovery was
ordered in the year 2016 on account of wrong fixation of his salary under the
revise 6th U.G.C. Pay Scale which was fixed in the basic of Rs. 45000/- w.e.f.
01.07.2006 vide order dated 15.05.2010, but when the anomaly was deducted
the basic pay of Rs. 45000/- was modified to Rs.43390/- w.e.f. 01.01.2006 vide
order dated 14.03.2013 and the arrears thereof was sought to be recovered from
the gratuity in the year 2016. The petitioner further contends that the said
amount cannot be recovered from the retiral dues of the petitioner because
there is no misrepresentation or fault on the part of the petitioner. The said
recovery has been done without prior approval of the Governor which is
violation of Rule 9 of the Pension Rules, 1976. He further contends that the
Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White
washer), (2015) 1 M.P.H.T 130 (SC) has held that no recovery can be effected
from the retrial dues of the employee after his retirement. In view of above, it is
prayed that recovery of Rs.80,000/- already made from the retiral dues
(gratuity) of the petitioner needs to be refunded along with interest.
3. Per contra, learned counsel for the State opposed the prayer made in the
petition and prayed for rejection of the same.
4. Heard learned counsel for the parties and perused the record.
5. The Hon'ble Supreme Court in the case of Syed Abdul Qadir and
others Vs State of Bihar and others, reported in (2009) 3 SCC 475, has held
as under with regard to right of the employer to recover the excess amount paid
to an employee on account of wrong fixation of pay;-
W.P. No. 21395/2018
"The relief against recovery is granted by courts
not because of any right in the employees, but in
equity, exercising judicial discretion to relieve the
employees from the hardship that will be caused
if recovery is ordered. But, if in a given case, it is
proved that the employee had knowledge that the
payment received was in excess of what was due
or wrongly paid, or in cases where the error is
detected or corrected within a short time of wrong
payment, the matter being in the realm of judicial
discretion, courts may, on the facts and
circumstances of any particular case, order for
recover of the amount paid in excess. (Para. 58)
The excess amount that has been paid to the
appellant teachers, was not because of any
misrepresentation of fraud on their part and the
appellants also had no knowledge that the amount
that was being paid to the them was more than
what they were entitled to. The Finance
Department of the respondent State has admitted
that it was a bonafide mistake. The excess
payment made was the result of wrong
interpretation of the rule that was applicable to
them, for which the appellants can not be held
responsible. Rather, the whole confusion was
because of inaction, negligence and carelessness
of the officials concerned of the respondent
Government. It has also been brought to the
Court's notice that majority of the beneficiaries
have either retired or are on the verge of it.
Keeping in view the peculiar facts and
circumstances of the case at hand and to avoid
any hardship to the appellant teachers, recovery
of the amount that has been paid in excess to the
appellant teachers is prohibited. Amount that has
already been recovered has to be refunded to the
employees concerned. These directions would
also apply to those similarly situated teachers who
have not moved the Court."
(Paras 59 to 61)
6. In the case of State of Punjab and Others etc. Vs. Rafiq Masih(White
Washer) etc. (supra) it was contended that out of several contingencies
W.P. No. 21395/2018
specified in the said judgment, the petitioner comes within the category of
Class III employee and the recovery from retired employee, or employees who
are due to retire within one year of the order of recovery, therefore, the said
recovery is not permissible. The relevant extract is reproduced below:-
"12. 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 herein above, we may, as
ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law:-
(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."
7. As per the principle of law laid down by the Supreme Court, in my
opinion, recovery of an amount of Rs. 80,000/- from the retiral dues of the
W.P. No. 21395/2018
petitioner is illegal. From the facts of the case, it is clear that the recovery has
been ordered without there being any misrepresentation or fault on the part of
the petitioner. No undertaking etc. was given at any point of time, therefore, the
instant petition deserves to be allowed.
8. Consequently, the petition is allowed. The respondents are directed to
refund the amount of Rs. 80,000/- to the petitioner within a period of three
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 @ 6 % per annum till the date of payment.
9. No order as to costs.
(S.A. DHARMADHIKARI)
JUDGE
ashish
Digitally signed by ASHISH
KUMAR LILHARE
Date: 2022.03.11 15:36:39
+05'30'
