Smt. Rani Namdeo vs The State Of Madhya Pradesh
2023 Latest Caselaw 20187 MP

Madhya Pradesh High Court

Smt. Rani Namdeo vs The State Of Madhya Pradesh on 1 December, 2023

                                                     1



                               IN THE HIGH COURT OF MADHYA PRADESH AT
                                              JABALPUR
                                                BEFORE

                                HON'BLE SMT. JUSTICE RAJ MOHAN SINGH


                                      ON THE 1st OF DECEMBER, 2023

                                     WRIT PETITION No. 6943 of 2019


                               BETWEEN:-

                               SMT. RANI NAMDEO W/O SHRI CHANDRAHAS
                               NAMDEO, AGED ABOUT 30 YEARS,
                               OCCUPATION: FOREST GUARD      OFFICE-
                               SOUTH FOREST DIVISION , SHAHDOL,
                                DISTRICT    SHAHDOL
                               (MADHYA PRADESH)

                                                                 ....PETITIONER


                               (BY  SHRI     AMIT        KUMAR    CHATUVEDI-
                               ADVOCATE)

                               AND

                          1.   THE STATE OF MADHYA PRADESH THR.ITS
                               PRINCIPAL    SECRETARY DEPTT. OF FOREST
                               DEPTT. OF FOREST , VALLABH BHAWAN,
                               BHOPAL (MADHYA PRADESH)




Signature Not Verified
Signed by: MANZOOR
AHMED
Signing time: 12/2/2023
12:03:20 PM
                                                            2



                          2.    THE PRINCIPAL SECRETARY DEPARTMENT
                                OF FINANCE VALLABH BHAWAN BHOPAL
                                (MADHYA PRADESH)

                          3.    THE JOINT DIRECTOR TREASURY
                                ACCOUNTS AND PENSION REWA
                                DIVISION REWA DIVISION REWA,
                                (MADHYA PRADESH)

                          4.    DIVISIONAL FOREST OFFICER SOUTH
                                FOREST DIVISION SHAHDOL DISTT.
                                SHAHDOL M.P. (MADHYA PRADESH)

                          5.    THE DISTRICT PENSION OFFICER
                                SHAHDOL DISTT. SHAHDOL
                                (MADHYA PRADESH)



                                                                  ....RESPONDENTS

                          (BY SHRI-ARNAV TIWARI-PANEL LAWYER)
                          This petition coming on for admission this day, the court
                          passed the following:


                                                     ORDER

The petitioner has preferred this writ petition, assailing

the order dated 11.3.2019 (Annexure P-2) passed by the respondent

No.4/Divisional Forest Officer, Shahdol.

2. Perusal of the order dated 11.3.2019 shows that the pay

fixation of the petitioner was found to be erroneous and an amount

of Rs.89,564/- was directed to be deposited along with an interest by

means of challan before 25.3.2019. In the event of failure to do so

within the time prescribed, the amount along with interest shall be

recovered from the monthly salary of the petitioner.

3. Learned counsel for the petitioner submits that the pay

fixation was done for the period with effect from July 2009 to

December 2015. The petitioner had no role to play in the aforesaid

fixation and he never misrepresented before the

respondent/department nor was any fraud played by the petitioner in

any manner in the context of the getting pay fixation from the

respondent/department. The petitioner is a Class-III employee

working as Forest Guard in the respondent department. Besides the

order in question, interest @ 12% per annum from June 2011 has

been levied on the alleged recoverable amount, which according to

the learned counsel for the petitioner is hit by doctrine of "Audi

Alteram Partem". No notice was ever issued by the respondent

No.4 before passing the order dated 11.3.2019. The petitioner was

initially appointed as Forest Guard on probation, and on 18.8.2008

on completion of probation period, the petitioner was confirmed and

since then he is holding Class-III post. No departmental enquiry was

ever conducted against the petitioner nor was any misconduct

alleged at any point of time.

4. The pay fixation for the period July 2009 to December

2015 was a voluntarily act of the respondent/department in which

the petitioner has not played any role whatsoever. The recovery is

sought to be effected on the basis of alleged undertaking given by

the petitioner on 24.8.2017.

5. Learned counsel for the petitioner submits that

consequent to the aforesaid undertaking, the impugned order has

been passed on 11.3.2019 i.e. the day on which even recovery based

on the alleged wrong fixation of pay scale had become time barred.

Even otherwise the alleged undertaking does not relate to the

alleged wrong fixation of pay from July 2009 to December 2015.

6. Bare perusal of the undertaking would show that the

same was in respect of the benefits arising out of 7 th Pay

Commission with effect from 1.1.2016 and does not cover the pay

fixation from July 2009 to December 2015. The undertaking dated

24.8.2017 is reproduced here as under:-

izi=&rhu opu i= ¼Undertaking½

eq>s ;g Kkr gS fd fnukad 01&01&2016 ls Lohd`r e/;izns'k osru iqujh{k.k fu;e 2017 ds izko/kkuksa ds varxZr esjk tks osru fu;ru vHkh iqujhf{kr osru esfVªDl es fd;k x;k gS og vufUre ¼Provisional½ gSA esa opu nsrk@nsrh gwWa fd es jkT; 'kklu dks og laiw.kZ jkf'k tks fd osru fu;ru eas vfu;ferrk ds dkj.k rFkk vU; dksbZ Hkh /kujkf'k tks fd bl izdkj osru fu;ru ds dkj.k eq>s vf/kd Hkqxrku fd xbZ gS] 'kklu ds funsZ'kksa ds vuq:i fu/kkZfjr jkf'k okil d:axk@d:axh rFkk bl izdkj dh jkf'k esjs ns; Lorksa ls ftuesa&isa'ku] xzsP;qVh ,oa vodk'k uxnhdj.k dh jkf'k Hkh lfEefyr gS] dkVh tk ldsxhA esa ;g Hkh opu nsrk@nsrh gWw fd ;fn mDrkuqlkj esjs }kjk ns; jkf'k dks esa ykSVkus esa vleFkZ jgrk@jgrh gwWa] rks bl ns; jkf'k dh okilh ds fy, esa vius mRrjkf/kdkfj;ksa] fu"ikndksa] izfrfuf/k;ksa vkSj leuqnsf'kfr;ksa dks vkc) djrk@djrh gwWaA esa ;g Hkh lgefr nsrk@nsrh gwWa fd esjs }kjk ns; jkf'k eq>ls jktLo fd cdk;k ds :i es olwy dj yh tk,A

7. Evidently, the following important aspects are attached

to the present case:-

(a) The fixation of pay with effect from July 2009 to December

2015 was a voluntarily act of the respondent/department.

(b) The petitioner has not played any overtact in getting the

aforesaid fixation done by means of any misrepresentation or fraud.

(c) The petitioner being a Class-III employee is protected from

such recovery, which has been made mistakenly in excess of his

entitlement. The case of the petitioner is covered under the

situations of hardship as enumerated in the case of State of Punjab

and others Vs. Rafiq Masih, reported in (2015) 4 SCC 334. Para

18 of the aforesaid judgment reads as under:-

"18. 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 decisions referred to hereinabove, 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 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."

(d) The alleged undertaking even in view of the nature of recital

made does not relate to the period from July 2009 to December

2015, and the undertaking even if considered to be on its face value,

could have been made applicable with perspective effect. The

undertaking is in respect of the benefits drawn by the petitioner,

which accrued to him on account of implementation of the 7 th Pay

Commission.

(e) The impugned order has been passed without affording any

reasonable opportunity of hearing to the petitioner, and the same is

hit by the doctrine of "Audi Alteram Partem".

8. In view of the aforesaid factual position, the ratio of the

High Court of Punjab & Haryana and others Vs. Jagdev Singh,

reported in 2016(4) SCT 286 in the context of giving undertaking

is also misplaced, as the undertaking in question does not relate to

the period in question. The undertaking being given on 24.8.2017 is

prospective in nature and cannot be applied with retrospective effect

i.e. for the period from July 2009 to December 2015.

9. The mandate of law as laid down in the case of Rafiq

Masih (supra) does not contemplate any such recovery to be

effected from the petitioner, even if the petitioner is in service. The

undertaking dated 24.8.2017 has also no legs to stand in the light of

the circumstances in which the undertaking was given i.e. for the

benefits accrued and paid to the petitioner on account of

implementation of 7th Pay Commission. There is no undertaking for

the period July 2009 to December 2015, and by any stretch of

imagination, the same cannot be applied for the period in question.

Vide order dated 2.4.2019, the operation of the impugned order has

already been stayed.

10. Taking into consideration the facts and circumstances

of the instant case I find that the impugned order is totally illegal

inasmuch as that the same is against the spirit of ratio of Rafiq

Masih's case (supra). The impugned order besides being illegal is

also hit by the doctrine of "Audi Alteram Partem". The order is

also found to be totally non-speaking on the face of it.

11. For the reasons recorded hereinabove I deem it

appropriate to quash the impugned order dated 11.3.2019 (Annexure

P-2) and the petitioner is not liable to pay any such amount, which

has been allegedly paid to him on account of fixation of pay for the

period from July 2009 to December 2015. Consequently, the writ

petition is allowed.

(Raj Mohan Singh) Judge 01/12/2023

Ansari