Shri B.P. Khanna vs The State Of Madhya Pradesh
2023 Latest Caselaw 6947 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 28 th OF APRIL, 2023
                                           WRIT PETITION No. 24408 of 2019

                         BETWEEN:-
                         SHRI B.P. KHANNA S/O LT. I.D. KHANNA, AGED ABOUT
                         89 YEARS, OCCUPATION: RETIRED AFO PLOT NO.41
                         SANIK SOCIETY SHAKTI NAGAR JABALPUR (MADHYA
                         PRADESH)

                                                                                    .....PETITIONER
                         (BY SHRI P.S.GAHARWAR - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH THR.
                               PRINCIPAL SECRETRY FISHERY DEPARTMENT
                               VALLABH    BHAWAN,   BHOPAL   (MADHYA
                               PRADESH)

                         2.    DIRECTOR   OF   FISHRIE        BHOPAL BHOPAL
                               (MADHYA PRADESH)

                         3.    COMMISSIONER (PENSION) SADHANA ENCLAVE
                               PHASE    2 HOSHANGABAD ROAD BHOPAL
                               (MADHYA PRADESH)

                         4.    COLLECTOR J AB ALPUR JABALPUR (MADHYA
                               PRADESH)

                         5.    BRANCH MANAGER PUNJAB NATIONAL BANK
                               NAGPUR ROAD AMANPUR BRANCH JABALPUR
                               (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                         (STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
                         (RESPONDENT NO.5 BY SHRI KAPIL DUGGAL - ADVOCATE)

                               This petition coming on for admission this day, th e court passed the
                         following:
Signature Not Verified
                                                          ORDER

Signed by: AMIT JAIN Signing time:

5/2/2023 3:20:31 PM

Learned counsel for the petitioner submits that the petitioner was working as Assistant Fishery Officer and was posted at Jabalpur. He attained the age of superannuation on 31.3.1984. After attaining the age of superannuation, PPO was issued in favour of the petitioner. He was drawing his pension regularly. In July, 2019, he received pension of Rs.18,662/-against his full pension amount to Rs.31,999/- meaning thereby that Rs.13,777/- was deducted from his salary. Thereafter, he approached this Court but by that time, the respondents had already made a recovery of 5 installments of Rs.13,777/- i.e totaling to Rs.68,885/-. No show cause notice was given before making any recovery. The recovery was erroneous and, therefore, this Court had stayed the recovery.

The respondent/State has filed a return justifying the recovery on the ground that the the pensioner has drawn excess pension. On the last date, the Director, Treasury, Pension & Accounts Shri J.K.Sharma was present. He expressed that the petitioner was to be paid 30% additional pension on attaining the age of 80 years, 35% on attaining the age of 85 years and 45% on attaining the age of 90 years. The benefit of addition of 30% pension was made in the principal amount and thereafter the dearness allowance was calculated but the bank erroneously calculated the additional dearness allowance resulting in a situation where an excess amount of Rs.3,,57,245/- was paid to the petitioner.

Learned counsel fro the respondent/Bank submits that since the excess was pointed out by the auditor, the recovery was ordered. No notice was given to the petitioner before effecting any recovery. It is also an admitted position that the petitioner was not at fault for making such erroneous calculation.

Learned counsel for the petitioner places reliance on the judgment of the Apex Court in Thomas Daniel versus State of Kerala & Others AIR 2022

Signature Not Verified SC 2153 wherein it is held that if excess amount was not paid on account of Signed by: AMIT JAIN Signing time:

5/2/2023 3:20:31 PM

misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principal for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable The facts of the present case are similar and, therefore, applying the ratio of law laid down by the Apex Court in Thomas Daniel versus State of Kerala & Others (supra), the recovery proceedings cannot be given a seal of approval. Recovery Proceedings are hereby quashed. If the amount recovered is not already paid to the petitioner then it may be credited within thirty days from today and if it has already been paid then the respondent/Bank will be entitled to make recovery of its dues from the erring official.

In above terms, this writ petition is disposed of.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

5/2/2023 3:20:31 PM