Krishna Kumar Paigwar vs M.D. M.P. Poorva Kshetra Vidyut ...
2023 Latest Caselaw 6349 MP

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                               ON THE 20 th OF APRIL, 2023
                                            WRIT PETITION No. 19823 of 2016

                          BETWEEN:-
                          KRISHNA KUMAR PAIGWAR S/O SHRI BRAJLAL
                          PAIGWAR, AGED ABOUT 61 YEARS, OCCUPATION:
                          RETIRED SENIOR TESTING ASSISTANT H.NO 841
                          CHAUTHI GALI BAI KA BAGICHA GHAMAPUR
                          (MADHYA PRADESH)

                                                                                      .....PETITIONER
                          (BY SHRI (DR.) EKNATH JYOTISHI - ADVOCATE)

                          AND
                          1.    M.D. M.P. POORVA KSHETRA VIDYUT VITARAN
                                CO. LTD. THROUGH SHAKTI BHAWAN RAMPUR
                                (MADHYA PRADESH)

                          2.    CHIEF ENGINEER POORVA KSHETRA VIDYUT
                                VITARAN   CO.  LTD. RAMPUR JABALPAUR
                                (MADHYA PRADESH)

                          3.    EXECUTIVE ENGINEER (STM) DN. O&M CIRCLE
                                M.P.POORVA KSHETRA VIDYUT VITRAN CO. LTD.
                                JABALPUR (MADHYA PRADESH)

                          4.    EXECUTIVE ENGINEER (METER TESTING) Dn.
                                POORVA KSHETRA VIDYUT VITRAN CO. LTD.
                                CHHINDWARA (MADHYA PRADESH)

                                                                                    .....RESPONDENTS
                          (BY SHRI ANOOP SONKER - ADVOCATE)

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                            ORDER

The petition is pending since 2016. Albeit, the pleadings are complete,

Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 4/21/2023 5:13:25 PM

therefore, with the consent of learned counsel for the parties, it is heard finally.

By the instant petition. the disgruntled petitioner is raising grievance that after his retirement, the recovery was proposed and amount got recovered from his retiral dues.

Learned counsel for the petitioner sanguinely submits that before retirement, the petitioner was never informed about any excess payment made to him, even before proposing recovery and showing amount to be recovered, no notice was issued to him asking that the amount paid in excess has to be recovered from him. He further submits that it is a settled principle of law that the recovery after retirement cannot be made that too without giving any notice

to the employee and for the reason that any excess payment was made to him, in which he has not made any false representation. To reinforce, he places reliance on the judgment rendered by the Supreme Court in re State of Punjab & Ors. v. Rafiq Masih (2015) 4 SCC 334. He also submits that following the verdict of the Supreme Court, the High Court in W.P.No.4091/2015 (S.K. Awasthi v. The State of Madhya Pradesh & Ors.) vide order dated has quashed the order of recovery.

In contrast, Shri Sonker learned counsel for the respondents while pinpointing the averments made in the reply, submits that there were executive instructions issued on 25.02.2011, in which, it is contained that if any employee remains absent even for one day between 1st of January and 30th of June without there being any medical certificate, he would not be entitled to get increment which is added on 1st of July of that year. Focusing on the undertaking (Annexure-R/7), he submits that it was given by the petitioner obviously admitting that if any amount was paid in excess of his entitlement, then the petitioner even after retirement would be liable to pay the same and that Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 4/21/2023 5:13:25 PM

amount can be recovered from him. However, that undertaking was given by the petitioner at the time of retirement i.e. in the year 2015. He submits that in the face of undertaking given and finding excess amount paid, therefore, recovery has been made and as such it cannot be said to be illegal and petition being bereft merit, deserves outright dismissal.

Considering the submissions of the learned counsel for the parties and perusal of record, it is gathered that the petitioner was retired w.e.f. 30.06.2015 and by order dated 20.04.2016 it is shown that an amount of Rs.1,97,334/- was paid in excess to the petitioner and that amount was proposed to be recovered. As per the petitioner, the said amount has already been recovered from his retiral dues. However, no reason has been assigned in the order as to how such recovery was determined and for what reason it has been recovered and as to how any excess payment was made to the petitioner. In absence of any specific reason assigned in the order for making recovery from the retiral dues of the petitioner and without giving him opportunity of hearing or to substantiate that there was no excess payment made to him, such a recovery cannot be made from the petitioner who was a retired employee. During the period of service, when alleged irregularity in pay-fixation was made, the petitioner was never informed about it nor was he informed the reason for proposed recovery at the time of passing impugned order. In the reply filed by the respondents, they have

annexed certain documents showing that in view of the executive instructions, if any employee is on leave without there being any medical certificate, he is not entitled to get increment which is added on 1st of July of that year. But it is not disclosed as to during what period the petitioner remained absent and which increment was wrongly paid to him and if that was so, why at the relevant point

Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 4/21/2023 5:13:25 PM

of time, the petitioner was not intimated that he was not entitled to get the benefit of annual increment. Indeed, the undertaking (Annexure-R/7) is on record made appendage to the reply but that is of 2015, which was taken at the time of settling the retiral dues and this undertaking also does not disclose whether any excess payment was made to the petitioner, but as per the procedure prevailing, at the time of retirement and to get settled the retiral dues, every employee remains compulsive of giving such undertaking to evade any unwanted complication in getting the retiral dues. However, that undertaking has no legal sanctity for the reason that if any wrong fixation made and undertaking if any is given by the employee at that relevant time, it carries sanctity and that binds him not to object if any recovery is made for excess amount, although that situation does not exist in the case at hand. It appears that the impugned order Annexure-P/1 has been issued by the respondents without considering the fact that as to in what manner petitioner has been paid excess amount and it can be otherwise gathered that proposed recovery was without application of mind and that is not sustainable in the eyes of law. It is also a settled principal of law that any order which carries civil consequences can be passed only after following the principle of natural justice. The same rationale and principle has been applied in the case of Rafiq Masih (supra) by the Supreme Court laying down criterion under which recovery from the employee cannot be made.

In view of the aforesaid and taking note of the material available on record, I have no scintilla of doubt to say that the action of the respondents by which they have recovered the amount from the retiral dues of the petitioner is illegal and the petitioner is entitled to get back the recovered amount. Ergo, it is directed that the respondents shall refund the amount recovered from the petitioner pursuant to Annexure-P/1 within a period of three months from the Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 4/21/2023 5:13:25 PM

date of receipt of copy of this order.

Petition is accordingly allowed and disposed of.

(SANJAY DWIVEDI) JUDGE Sudesh

Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 4/21/2023 5:13:25 PM