Madhya Pradesh High Court
Indore Municipal Corporation vs Rajaram Soni on 14 October, 2022
Author: Vivek Rusia
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W.A. No. 741/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
WRIT APPEAL No. 741 of 2018
BETWEEN:-
INDORE MUNICIPAL CORPORATION COMMISSIONER INDORE
(MADHYA PRADESH)
.....APPELLANT
(SHRI ANIKET NAIK, LEARNED COUNSEL FOR THE APPELLANT.)
AND
RAJARAM SONI S/O LATE BHAGIRATH SONI, AGED ABOUT 61
YEARS, OCCUPATION: RETIRED 47, MANPASAND COLONY,
AIRPORT ROAD, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAJENDRA KUMAR SHUKLA, LEARNED COUNSEL FOR THE
RESPONDENT.)
This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
(Passed on 14th October, 2022)
The appellant - Indore Municipal Corporation ( in short : IMC)
has filed the present writ appeal against the order dated 18.4.2018
whereby the Writ Court has allowed the writ petition filed by the
respondent i.e. the petitioner and directed to refund the recovered
amount.
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W.A. No. 741/2018
The Facts of the case, in short, are as under :
1) The petitioner was appointed to the post of Clerk in IMC and
retired from service on 30.9.2016 after attaining the age of
superannuation. After retirement, while releasing the retiral dues, the
IMC has recovered Rs.43,074/- from the gratuity payable to the
petitioner on account of excess payment made due to the wrong
fixation of pay that too without affording him any opportunity of
hearing to him. The petitioner submitted the representation to the
Commissioner of IMC questioning the aforesaid recovery and
thereafter filed the writ petition before this Court.
2) The IMC filed the return in the writ petition by submitting that
the Dy. Director (Resident Audit) raised an objection on 27.10.2016
that the petitioner had been given the pay-scale of the post of Assistant
Grade-III without passing the typing examination. Hence, due to the
wrong fixation of pay, an amount of Rs.43,074/- has been paid to the
petitioner and the same is liable to be recovered. It was also submitted
that the petitioner had given consent for the recovery of the amount at
the time of retirement, hence the recovery is justified without the
opportunity of hearing.
3) Learned Writ Court has allowed the writ petition by placing
reliance on the judgment of the Apex Court in the case of State of
Punjab and Haryana V/s. Jagdev Singh : 2016 SCC OnLine SC
748; and State of Punjab & others V/s. Rafiq Masih : (2015) 4 SCC
334. Hence, the present writ appeal before this Court.
4) Shri Aniket Naik, learned counsel for the appellant - Indore
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W.A. No. 741/2018
Municipal Corporation, submitted that the Division Bench of this
Court has referred the issue that "recovery of excess payment due to
the wrong fixation of the pay scale can be recorded at the time of
retirement because of undertaking given by the employee", to the
Larger Bench, therefore, the hearing of this case may be deferred till
the reference is answered by the Larger Bench. Shri Naik learned
counsel, however, submitted that the petitioner was given the status of
a permanent employee from 1996 when he attained the age of 40,
whereas the confirmation order was issued by IMC was passed in the
year 1999, therefore, he is not entitled to the wages of a permanent
employee for the period from 1996 to 1999, hence the recovery is
justified.
Per contra Shri Shukla supported the impugned order passed by
the Writ Court.
We have heard the learned counsel for the parties at length and
perused the record of the case
5) Initially, the petitioner was appointed as Lower Division Clerk.
Since he did not pass the typing examination, therefore, he was not
given the status of a permanent employee. The State Government
relaxed the condition of passing typing examination to those
employees who have crossed the age of 40. The petitioner crossed the
age of 40 in the year 1996 based on the date of birth recorded in the
service book as 12.9.1956, therefore, he has been given the benefit of
permanent status w.e.f. 18.10.1996 vide order dated 21.4.1999 which
is reproduced below :
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W.A. No. 741/2018
"bUnkSj uxj ikfydk fuxe] dk;kZy;
dzekad 35 fnukad
21 APR.1999
vkKk&i=
Jh jktkjke HkkxhjFk lksuh] cykbZ] ifj"kn dk;kZy;] dh vk;q 40
o"kZ ls vf/kd gksus ls mUgsa Vk;fiax ca/ku ls eqDr djrs gq, foHkkfx;
vuq'kalk vuqlkj vkKk i= dzekad 306 fnukad 11 vDVqcj 96 ds
rkjrEi esa vkKk i= tkjh gksus ds fnukad ls muds orZeku in ij
LFkkbZ djus dh Lohd`fr iznku dh tkrh gSA
,u- ih- lqgkus
mik;qDr
uxj ikfydk fuxe] bUnkSj-"
It is apparent from the aforesaid order that the petitioner was given the
benefit of exemption of passing typing examination after crossing the
age of 40 and in compliance with order No. 306 dated 11.10.1996 he
was given the regular pay-scale of Assistant Grade-III. At the relevant
point of time the authority who has given the benefit of relaxation
from passing typing examination gave the benefit from 11.10.1996
from the date of attaining the age of 40 years and accordingly he was
paid the salary. At the time of retirement, the objection raised that
since the order of permanent status was passed in the year 1999,
therefore, he is entitled to the said benefit from 1999 and not from
1996.
6) Initially, the petitioner was not given the status of a permanent
because of non-passing the typing examination otherwise he became
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W.A. No. 741/2018
entitled to the confirmation. After attaining the age of 40 yrs. he
became entitled to a declaration of a permanent employee, therefore,
he was rightly given the benefit from the date of crossing the age of
40. Although the order has passed after 3 years the benefit of
permanent status had been granted from the date of crossing the age of
40 years i.e. 1996. Even if there was any confusion in the
interpretation of the said order, that was on the part of the IMC and
not on the part of the petitioner. Therefore, recovery at the time of
retirement is wholly unsustainable as the petitioner was not at fault in
getting the benefit of permanent status and the wages for the same.
This issue is not covered with the issues raised by the Division Bench
and referred to the Larger Bench. Even otherwise, the recovery is only
Rs.43,074/- and for which the IMC is contesting this matter since last
more than 5 years. In the considered opinion of this Court, the writ
appeal is liable to be dismissed.
Accordingly, this writ appeal fails and is hereby dismissed. No
order as to cost.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.10.14 19:05:39 +05'30'
