Madhya Pradesh High Court
Jagdishchandra Kushwah vs Horticulture Department on 24 August, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 24 th OF AUGUST, 2023
WRIT PETITION No. 27755 of 2018
BETWEEN:-
JAGDISHCHANDRA KUSHWAH S/O VITTHALPRASADJI,
AGED ABOUT 63 YEARS, OCCUPATION: RETIRED,
ASSISTANT DIRECTOR HORTICULTURE, O/O JOINT
DIRECTOR, HORTICULTURE INDORE DIVISION,
INDORE NEAR SANTOSHIMATA MANDIR NUTAN
NAGAR, KHARGONE (MADHYA PRADESH)
.....PETITIONER
(SHRI ANAND AGRAWAL, COUNSEL FOR THE PETITIONER).
AND
1. THE STATE OF M.P., THROUGH PRINCIPAL
SECRETARY, HORTICULTURE DEPARTMENT,
MANTRALAYA, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. D I R E C T O R , HORTICULTURE FORM AND
FOR ESTRY, VINDHYACHAL BHAWAN, BHOPAL
(MADHYA PRADESH)
3. JOINT DIRECTOR, HORTICULTURE
DEPARTM ENT, INDORE DIVISION RESIDENCY,
KOTHI, INDORE (MADHYA PRADESH)
4. DIVISIONAL JOINT DIRECTOR, TREASURY
ACCOUNTS AND PENSION, INDORE DIVISION,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AMAY BAJAJ, PANEL LAWYER FOR THE STATE).
This petition coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/26/2023
2:43:27 PM
Heard finally with the consent of both the parties.
By filing the present writ petition under Article 226 of Constitution of
India, the petitioner has challenged the order of recovery and re-fixation dated
16.10.2015 (Annexure-P/1) by which recovery of Rs.3,22,317/- (Rs.2,31,503/-
principal amount and Rs. 90,814/- interest thereof) has been ordered to be
recovered.
2 . The brief facts of the case are that petitioner was working as
Assistant Director Horticulture in Department of Horticulture, Indore Division,
District Indore. He retired from the service on 30.06.2015. The recovery and
refixation has been done by withdrawing the Kramonnati which was granted to
the petitioner in the year 1999 and an amount of Rs. 3,31,162/- has been
deducted from the gratuity, as reflected from the pension cover sheet dated
09.11.2015 (Annexure P/2).
3. On perusal of the impugned order dated 16.10.2015 (Annexure P/1), it
reveals that the order of recovery and re-fixation has been issued due to the
objections taken by the District Pension Officer, Indore. The recovery
statement also shows that the recovery was ordered due to wrong fixation w.e.f.
1999. It is also an admitted position that impugned recovery has been ordered
after the retirement of the petitioner.
4 . Learned counsel for the petitioner submits that the earlier pay
fixation was done in accordance with law and there is no illegality committed by
the respondents. Only because of objection from the Pension Officer, the
impugned order has been passed. Learned counsel for the petitioner further
contended that the petitioner was not at fault at any point of time and no
undertaking was given by him to that effect. He placed reliance on the judgment
Signature Not Verified
of Apex Court in the case of M.P. Medical Officers Association vs. State of
Signed by: SREEVIDYA
Signing time: 8/26/2023
2:43:27 PM
M.P. and others passed in Civil Appeal No.5527/2022 vide judgment
dated 26/08/2022 wherein the Apex Court has quashed the recovery of excess
amount and has directed to refund the entire amount which was recovered from
the employees who were in service.
5. Apex Court in the case of State of Punjab and others vs. Rafiq
Masih (White Washer) etc. (2015) 4 SCC 334 has held as under :-
''12. It is not possible to postulate all situations of hardship, 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 decision 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 'C' and Group 'D' service).
(ii) Recovery from the retired employees, or 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."
6. On the other hand, learned Panel Lawyer for the respondents/State has
opposed the prayer and submitted that the recovery has been ordered on the
objection raised by District Pension Officer, for the amount for which petitioner
is not entitled.
7. Heard learned counsel for the parties.
8 . As per Rafiq Masih (Supra) the recovery cannot effected from a
retired employee. Secondly, recovery cannot be effected for the excess of
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/26/2023
2:43:27 PM
payment which has been made for the period in excess of five year. In the
present case, the recovery is being effected from the year 1999, which is not
permissible.
9 . In view principles laid down in case of Rafiq Masih (Supra) and
M.P. Medical Officers Association (Supra) , the impugned order of recovery
and refixation dated 16.10.2015 (Annexure-P/1) is hereby quashed and set-
aside. The respondents are directed to refund the sum of Rs. 3,31,162/-
alongwith interest @ 6% per annum from the date of recovery, till the date of re-
payment to the petitioner.
10. Accordingly, petition stands allowed to the extent indicated
hereinabove.
11. No order as to costs.
Certified copy as per rules.
(S. A. DHARMADHIKARI)
JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 8/26/2023
2:43:27 PM
