Madhya Pradesh High Court
Pooran Singh vs The State Of Madhya Pradesh on 1 April, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1 st OF APRIL, 2023
WRIT PETITION No. 1642 of 2021
BETWEEN:-
POORAN SINGH S/O SHRI UJAGAR SINGH, AGED 63
YEARS, OCCUPATION: RETIRED FROM THE POST OF
HEAD CONSTABLE R/O VIKRAM NAGAR WARD NO 45
MAHARAJPUR NEAR NAKA MORENA DISTRICT
MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.P. SINGH- ADVOCATE FOR PETITIONER )
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY DEPARTMENT OF HOME
MANTRALAYA GOVT. OF M.P. VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. THE DIRECTOR GENERAL POLICE MADHYA
PRADESH BHOPAL (MADHYA PRADESH)
3. THE SUPERINTENDENT POLICE MORENA
DISTRICT MORENA (MADHYA PRADESH)
4. THE JOINT DIRECTOR TREASURY ACCOUNTS
AND PENSION MOTI MAHAL GWALIOR (MADHYA
PRADESH)
5. DISTRICT TREASURY OFFICER MORENA
DISTRICT MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHIRAJ QURESHI- GOVERNMENT ADVOCATE )
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
This present petition is directed against the order dated 01.01.2021
passed by respondent no. 3 alleging it to be illegal, arbitrary and unlawful,
whereby an order of sanction of recovery of Rs.4,73,723/- had been issued.
The aforesaid order has been assailed on the ground that the same has been
issued without any notice and without affording any opportunity of hearing and
since it is without following the principles of natural justice, the said order is
unsustainable. Further grievance is that the respondents have not settled the
retiral dues of the petitioner nor any anticipatory pension has been granted in
lieu of Section 64 of Madhya Pradesh Civil Services (Pension) Rules, 1976 and
recovery of an amount of Rs.4,73,723/- has been initiated which is causing
serious prejudice and is affecting his legitimate claims and also affecting his
fundamental rights as enshrined under Article 14 and 16 of the Constitution of
India.
Learned counsel for the petitioner vehemently argued that the impugned
order dated 01.01.2021 (Annexure P/1) is in flagrant violation of principles of
natural justice and in view of the law laid down in the case of State of Punjab
& Others Vs. Rafiq Masih (White Washer) reported in 2015 (1) MPHT
130 (SC), wherein it has been held that such a forceful recovery from Class-III
and Class-IV employees after the retirement is not permissible in the eyes of
law. It has further been argued that the reason which has been assigned for
giving sanction for the recovery of the aforesaid amount though does not
appear from the impugned order but from the reply submitted by the State it is
reflected that the aforesaid amount is being recovered for certain
miscalculations which were done in not properly implementing the orders of
penalty imposed against the petitioner during his service tenure and on that
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account there was some wrong calculation chart prepared and as per
Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
new/revised calculation chart Rs.4,73,723/- was held to be recoverable from the
petitioner which was found to be in excess, which cannot be said to be on
account of any misrepresentation or due to fraud committed by the petitioner.
Thus, in the light of the judgment passed in the case of Rafiq Masih (supra),
the sanction for recovery of the aforesaid amount is bad in law and deserves to
be set aside. It has further been argued that in wake of the recovery which has
been initiated vide order dated 01.01.2021 (Annexure P/1) the respondents have
even not settled his retiral dues and he is not getting any pension/anticipatory
pension. Thus, the respondents may be directed to settle the retiral dues as well.
Per contra, learned Govt. Advocate submits that it is not in dispute that
the petitioner was initially appointed as Constable Driver in the respondent
department in the year 1984 and after attaining the age of superannuation, the
petitioner stood retired in the month of October, 2020 but after retirement at the
time of settlement of the petitioner's claim for his retiral dues, when necessary
documents duly prepared were forwarded to respondent nos. 4 & 5, an
objection was taken that the calculation chart regarding the calculation of
salary/pension of the petitioner, was without adjusting the penalty order which
were inflicted upon the petitioner during the service tenure which includes
increments which were ordered to be withheld permanently or for certain period
and therefore, the matter was relegated back to the department to recalculate it
and send the papers thereafter. It has further been argued that as and when the
objections were taken and recalculation of the retiral dues of the petitioner were
made, recovery of Rs.4,73,723/- was found to be recoverable from the
petitioner which was paid in excess due to the non-adjustment of the penalty
orders passed against the petitioner during his service tenure. It has further been
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Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
argued that the said recovery cannot be said to be bad as an undertaking has
been given by the petitioner that in case if any payment is made in excess, then,
he will return the amount back or he is permitting the same to be deducted from
his pension/gratuity or from the movable/immovable property in the name of his
family and therefore, in the light of the judgment passed by the Hon'ble Apex
Court in the matter of High Court of Punjab & Haryana Vs. Jagdev Singh
reported in 2016 14 SCC 265, and in the light of the judgment passed in the
matter of Steel Authority of India Limited Vs. Raghbendra Singh (SLP
No. 11025/2010) decided on 15.12.2020 the recovery initiated against the
petitioner being legally recoverable cannot be said to be illegal and thus, prayed
for dismissal of the present writ petition.
Heard counsel for the parties and perused the record.
It is not in dispute that the petitioner has retired from his service after
attaining the age of superannuation in the year 2020 and thereafter, the recovery
has been sanctioned to be initiated from his retiral dues. It is also not the case
of the respondents that the petitioner has received excess payment by practicing
fraud or by making representation.
Law is well settled that no recovery can be made from the employees
belonging to Class -III and Class- IV, even more when they have retired or are
due to retire within one year of the order of recovery. It is also legally settled
that recovery from the employees when the excess payment has been made for
the period in excess of five years before the order of recovery is issued is not
permissible. It is also well settled that in case excess payment is not made on
account of misrepresentation or fraud on the part of the employee, the same
could not be recovered and it cannot be recovered without giving any
opportunity of hearing also. In the case of Rafiq Masih (supra), wherein the
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Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
Apex Court in Para-12 has postulated certain categories and observed that the
recovery from them is impermissible. Para-12 is relevant, which is reproduced
thus:
"12. It is not possible to postulate all situations of hardship, which
wo uld 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 a 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 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 employers right to recover."
Thus, from the aforesaid dictum it can be gathered that recovery from the
retired employee or employees who are due to retire is impermissible also when
there is no misrepresentation on the part of the person concerned, at the time of
claiming benefit in his favour.
In the case in hand petitioner stood retired in the year 2020, and recovery
had been sanctioned vide Annexure P/1 when almost one year has elapsed, as
such, taking note of Rafiq Masih (supra) this Court finds that the action of the
respondents in recovering amount from the petitioner which is admittedly a
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Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
retiree is in violation of the law laid down by the Hon'ble Apex Court.
Further Hon'ble Supreme Court in subsequent case of High Court of
Punjab and Haryana Vs. Jagdev Singh reported in 2016 14 SCC 265
while clarifying the principle enunciated in Rafiq Masih (supra) has held that
recovery from the retired employee or employees who are due to retire is
impermissible cannot be made applicable to situation where the officer to whom
payment was made at the first instance was clearly placed on notice that any
payment found to have been made in excess would be required to be refunded.
In the aforesaid judgment Hon'ble Apex Court has held that if the officer has
furnished an undertaking while opting for the revised pay scale, he or she is
bound by the undertaking given by him or her. At this stage, it would be
relevant to reproduce paras No. 9 to 11 of the aforesaid judgment, which read
as under:-
"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 re-fixation or revision may warrant an
adjustment of the excess payment, if any, made.
10. Thus, the legal position which is culled out from the above
decision of the Hon'ble Supreme Court is that if at the time of
grant of any benefit an undertaking is given by an employee, he
would be bound by that and in event if it is found that any excess
payment had been made, it could be recovered. But it is not the
case here, the undertaking appears to have been given at the time
of grant of pension and not at the time of grant of two increments,
which were later withdrawn, thus, the recovery is wholly bad.
11. Also, as the stand taken by the Respondents that the recovery
of the amount of Rs.1, 89, 241/- was on account of grant of two
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Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
wrong increments, had not been demonstrated with facts and
figures, this Court cannot come to a conclusion that since the
Petitioner had not cleared the exam of B.Ed/BTS/D.Ed before the
cut off date as mentioned in the circular, he is not entitled for any
increments, thus,
in absence thereof coupled with the fact that after retirement as per
Rafiq Masih (supra) recovery is bad, the recovery so made from
the retiral dues of the Petitioner is bad in law and is hereby
quashed."
From careful perusal of the aforesaid judgment rendered by the Hon'ble
Supreme Court in the case of Jagdev Singh (supra) it is clearly suggested that
the principle laid down in Rafiq Masih's case (supra) that recovery from
employee belonging to Class - III & Class - IV service (Group -C and Group-D
service) would be impermissible in law, still holds good, in the latter case it is
only clarified that recovery from those retired employees or who are due to
retire within one year of the order of recovery shall be permissible who had
given undertaking at the time of taking benefit of that payment if found in excess
would be liable to be adjusted, thus for recovery this eventuality is imposed that
at the time of the approval of benefit, an undertaking is given by the employee
that in case it is found that the benefit has been extended was not permissible
and any recovery is made on that account, it shall be recoverable.
In the present case, it is not in dispute that the petitioner is a Class - III
employee coupled with the fact that the petitioner is retired employee and had at
no point of time given any undertaking making him liable for recovery. The
undertaking which the respondents had tried to convey appears to have been
given at the time of his retirement coupled with the fact that the orders of
penalty which is said to have been adjusted while re-fixing the salary of the
petitioner, were of the period starting from 1987 and lastly was of the year 2013.
Thus, on both the counts, firstly, no undertaking as per the Jagdev Singh's
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Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
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case (supra) was given and secondly, the recovery is allegedly for the period in
excess of five years before the order of recovery is issued as per Clause -12(iii)
of the judgment Rafiq Masih (supra). Thus, the petitioner cannot be compelled
to refund the amount which has been paid by the respondents on its own
without any misrepresentation or fraud on the part of the petitioner.
Accordingly, the impugned order dated 01.01.2021 (Annexure P/1) is hereby
set aside. Any amount, if recovered, from the petitioner be refunded with
interest @ 6% p.a. from the date of recovery till date of payment.
Apart from this, the respondents are directed to settle the retiral dues of
the petitioner as expeditiously as possible preferably within a period of three
months from the receipt of certified copy of this order. However, they are at
liberty to recalculate the pension after giving effect to the orders of penalty of
withholding of any increments permanently or temporarily and after re-fixing the
aforesaid, the same be released within the aforesaid period along with the other
retiral dues, if not already paid.
With the aforesaid, the petition stands disposed of.
E-copy/certified copy as per the Rules and directions.
(MILIND RAMESH PHADKE)
JUDGE
Chetna
Signature Not Verified
Signed by: CHETNA
BEHRANI
Signing time: 06-04-2023
12:55:31 PM
