Ramchandra Kharsodiya vs Department Of Panchayat And Rural ...
2023 Latest Caselaw 12177 MP

                                        1

 IN THE         HIGH COURT               OF MADHYA PRADESH

                             AT I N D O R E
                                  BEFORE
             HON'BLE SHRI JUSTICE PRANAY VERMA

                      ON THE 1st OF AUGUST, 2023

                    WRIT PETITION No. 4794 of 2018

BETWEEN:-
RAMCHANDRA KHARSODIYA S/O SHRI BAPULAL
KHARSODIYA, AGED ABOUT 56 YEARS, OCCUPATION:
SERVICE PANCHAYAT COORDINATOR OFFICER IN
JANPAD PANCHAYAT DEWAS, R/O A-22, MIG NEW
MUKHERJEE NAGAR BHIMA HOSPITAL ROAD, DEWAS,
(MADHYA PRADESH)
                                                             .....PETITIONER
(BY SHRI L. C. PATNE, ADVOCATE)
AND
   STATE OF M.P. THROUGH PRINCIPAL SECRETARY
   TO THE GOVERNMENT OF M.P. DEPARTMENT OF
   PANCHAYAT AND RURAL DEVELOPMENT OF
1.
   PANCHAYAT & RURAL DEVELOPMENT, VALLABH
   BHAWAN,   MANTRALAYA     BHOPAL   (MADHYA
   PRADESH)
2. COLLECTOR (PANCHAYAT) DISTRICT DEWAS (M.P.)
   CHIEF EXECUTIVE OFFICER ZILA PANCHAYAT
3.
   DEWAS (MADHYA PRADESH)
   CHIEF EXECUTIVE OFFICER, JANPAD PANCHAYAT
4.
   DEWAS (MADHYA PRADESH)
   JOINT DIRECTOR TREASURY, ACCOUNTS AND
5. PENSION UJJAIN DIVISION, UJJAIN (MADHYA
   PRADESH)
                                                           .....RESPONDENTS
(BY SHRI BHUWAN GAUTAM - G.A. FOR STATE)
This petition coming on for admission this day, the court passed the
following:
                                   ORDER

1. By this petition preferred under Article 226 of the Constitution of India,

the petitioner has challenged the order dated 4.9.2017 whereby the discrepancies in the fixation of pay-scale at the time of grant of higher pay- scale on account of having graduation degree has been rectified and order for recovery of excess amount has been passed.

2. Inter-alia, the petitioner has assailed the impugned order on the ground of the judgment passed by Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer).

3. The respondents have filed a reply by submitting that the petitioner gave an undertaking that if any amount is found to be paid excess to him, the same shall be recovered from him.

4. Learned counsel for the petitioner submits that the respondents have filed undertaking which was given at the time of revision of pay-scale. No such undertaking was taken from the petitioner at the time when his pay-scale was revised on account of him having obtained graduation degree.

5. Therefore, the law laid-down by the Apex Court in the case of State of Punjab and others Vs. Jagdev Singh shall not apply in this case as the petitioner did not give any undertaking for pay fixation for grant of first and second time scale.

6. In similar facts and circumstances, the Co-ordinate Bench of this Court has allowed the petition No. 6425/2015 dated 13.04.2023. The operative part of the petition is reproduced as under :-

"Learned counsel for the petitioner challenges the aforesaid recovery on the strength of judgment of Hon'ble the Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) etc (2015 (1) MPHT 130 (SC), wherein it has been held as under :-

"While it is not possible to postulate all situations of hardships where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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."

Learned counsel has relied upon clauses (ii) and (iii) above to bolster his submissions. It is submitted that neither during petitioner's entire service career nor at the time of revision of payscale any undertaking was ever furnished by the petitioner. That apart, the entire recovery without any notice and opportunity of hearing is patently illegal for want of observance of principles of natural justice. Therefore, the impugned recovery, deserves to be quashed.

Per contra learned counsel for the respondent contends that an indemnity bond was submitted by the petitioner (Annexure R/2) where under petitioner has undertaken that any loss or damage or over payment in pensionary benefits or otherwise in pay revision, if discovered, may be recovered from him. The benefit of aforesaid dictum of the Apex Court cannot be claimed in the light of judgment of Hon'ble Supreme Court in the case of High Court of Punjab and Haryana Vs. Jagdev Singh passed in Civil Appeal No. 3500 of 2006 (Annexure R/2), wherein the Hon'ble Supreme Court while addressing upon similar issue in the light of Rafiq Masih's case (Supra) has held that at the time of revision of pay since the petitioner therein had given an undertaking that any payment found to be in excess shall be liable to be adjusted, the benefit of aforesaid judgment cannot be

extended under such circumstances. With the aforesaid submissions, learned Government Advocate submits that no illegality has been committed while ordering recovery.

In response, learned counsel for the petitioner contends that judgment of Hon'ble Supreme Court in the case of Jagdev Singh (Supra) is distinguishable on facts and has no application to factual matrix in hand, inasmuch as, at the time of extension of benefit of revised payscale neither any undertaking was required from the petitioner nor petitioner furnished any such undertaking. As such, the judgment of the Apex Court in the case of Rafiq Masih (Supra) has full application.

Heard.

Looking to the factual matrix in hand, it is evident that the impugned recovery has been ordered in the context of alleged excess payment made from 2006 to 2015 consequent upon revision of payscale. Admittedly, no undertaking of the nature as referred to in paragraph 9 of the judgment in Jagdev Singh's case (Supra) was either asked for or furnished by the petitioner. Under these circumstances, judgment of Apex Court in the case of Rafiq Masih (Supra) has full application to the facts in hand firstly for the reason that neither the petitioner was given any notice nor opportunity before ordering recovery. Secondly, the aforesaid recovery allegedly in the context of revision of payscale cannot be made as the same is covered by clauses (ii) and (iii) of the said judgment, as quoted above."

7. In view of the above discussion and observation, present writ petition is allowed and recovery of the amount is hereby quashed. However, rectification in pay-scale is hereby upheld. It is directed that the amount recovered from the petitioner be refunded to him along with interest at 6% per annum. In case the said amount is not paid within a period of 3 months, then the same shall carry interest at 10% per annum.

                                                               (PRANAY VERMA)
                                                                     JUDGE
SS/-        Digitally signed by SHAILESH
            MAHADEV SUKHDEVE
            Date: 2023.08.02 12:08:38
            +05'30'