Smt. Indira Gupta vs M.Y. Hospital
2023 Latest Caselaw 12573 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                        BEFORE
                                        HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                                 ON THE 4 th OF AUGUST, 2023
                                              WRIT PETITION No. 15301 of 2019

                           BETWEEN:-
                           SMT. INDIRA GUPTA W/O LT SHRI AMAR GUPTA, AGED
                           ABOUT 64 YEARS, OCCUPATION: RETD. ANM G/1,
                           TIRUPATI PALACE OPP. KARNATAKA SCHOOL, ALOK
                           NAGAR, INDORE (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI AMIT RAJ, ADVOCATE)

                           AND
                           1.    M.Y. HOSPITAL THROUGH JOINT DIRECTOR CUM
                                 SUPERINTENDENT M.Y. HOSPITAL INDORE
                                 (MADHYA PRADESH)

                           2.    DIVISIONAL PENSION OFFICER COLLECTORATE
                                 PREMISES, INDORE (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (BY MS. BHAGYASHREE GUPTA, G.A.)

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

                           following:
                                                               ORDER

T he petitioner was working as ANM in M.Y. Hospital, Indore. She was superannuated on 19.06.2017 after rendering 37 years of service as class-III employee. The respondents despite submission of number of representations deprived the petitioner from retiral dues and did not issue PPO, 10% pension was withheld without any reason, GPF was not properly calculated and disbursement of salary of April, 2016 upto 19.6.2016 amounting to Rs.55,000/- and gratuity was withheld for no reason.

Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 05-08-2023 12:35:07

2. Petitioner also challenged the recovery made from the retiral dues of the petitioner and withholding the same because of pendency of recovery.

3. Learned counsel for the petitioner contended that the impugned order of recovery is detrimental to the petitioner. There had not been any mis- representation on part of the petitioner and therefore the order of recovery from his retiral dues is not sustainable in the light of decision of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (2015) 4 SCC 334. Learned counsel for the petitioner has further placed reliance upon the judgment passed by this Court in the matter of N.P.S. Sisodia Vs. State of M.P . reported in M.P. Weekly Notes 2022 (II) MPWN 32 , wherein recovery order has been quashed and respondents were directed to refund the amount, if already recovered

as well as on delayed payment petitioner shall also be paid simple interest of 6% per annum of entire retrial dues from the date of his entitlement till final payment is made. It is further submitted that the impugned order of recovery is liable to be quashed and the respondents deserve to be directed to release entire dues with interest on delayed payment.

4. Counsel for the State supports the impugned action and submitted that recovery is correct as excess salary was paid to the petitioner and therefore, retiral dues were withheld.

5. I have heard the learned counsel for the parties and have perused the record.

6. The issue regarding recovery from the employees either in service or after attaining the age of superannuation is no more res integra and has been settled in the case of Rafiq Masih (supra) wherein the Apex Court in paragraph 18 has postulated certain categories and has observed that recovery from them is impermissible. Paragraph 18 is reproduced below:-

"18. It is not possible to postulate all situations of hardship Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 05-08-2023 12:35:07

which would 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 here in 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 the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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."

7. In view of aforesaid, since the petitioner has already attained the age of superannuation, no recovery from retired class-III employee is permissible in the light of the judgment passed by the Apex Court in the case of Rafiq Masih (supra). As a consequence, the impugned order of recovery is quashed. The respondents are directed to refund the amount of Rs.3,21,512/- and Rs. 55,000/- to the petitioner, if recovered, along with interest @ 6% per annum from the date of

recovery. The respondents are directed to make payment of full pension and full gratuity amount to the petitioner along with interest. The entire exercise be completed within a period of 2 months from the date of receipt of certified copy of the order.

With the aforesaid, the petition is allowed and disposed of.

Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 05-08-2023 12:35:07

(SUBODH ABHYANKAR) JUDGE Bahar

Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 05-08-2023 12:35:07