Madhya Pradesh High Court
Manik Rao Gajbhiye vs The State Of Madhya Pradesh on 19 December, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.24780/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF DECEMBER, 2023
WRIT PETITION No. 24780 of 2022
BETWEEN:-
MANIK RAO GAJBHIYE S/O DOMAJI
GAJBHIYE, AGED ABOUT 63 YEARS,
OCCUPATION: RETIRED ASI RADIO FROM
POLICE DOORSANCHAR SANGATHAN,
BHADBHADA ROAD, BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI D.K.TRIPATHI - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL
SECRETARY HOME DEPARTMENT
VALLABH BHAWAN MANTRALAYA,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS
JAHAGIRABAD BHOPAL (MADHYA
PRADESH)
3. SENIOR SUPERINTENDENT OF
POLICE (RADIO), MADHYA PRADESH
BHOPAL (MADHYA PRADESH)
4. DIVISIONAL / DISTRICT PENSION
OFFICE BHOPAL BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI GAJENDRA PARASHAR - PANEL LAWYER )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 226 of Constitution of India has
been filed against the order dated 07.01.2022 passed by Senior
Superintendent of Police (Radio), Bhopal by which an amount of
Rs.2,10,449/- has been directed to be recovered from the gratuity
amount of petitioner.
2. It is submitted by counsel for petitioner that out of aforesaid
amount, the principal amount is Rs.1,09,863/- and the interest
component is Rs.1,00,586/-. It is submitted that before effecting
recovery, no show cause notice was issued to the petitioner. The
petitioner could have explained that no erroneous payment was made in
excess.
3. It is further submitted that even otherwise there is no allegation
that excess payment was made on a misrepresentation made by
petitioner, therefore, the interest on the principal amount should not
have been imposed.
4. Per contra, the petition is vehemently opposed by counsel for
petitioner. It is submitted that on 31.03.1998, on 08.04.2009 and on
26.08.2017 the petitioner had given an undertaking that in case if any
excess payment is made, then he shall refund the same. Therefore, it is
submitted that in the light of judgment passed by the Supreme Court in
the case of High Court of Punjab and Haryana and others Vs.
Jagdev Singh, reported in (2016) 14 SCC 267, the excessively paid
amount can be recovered. However, it is fairly conceded that no show
cause notice was issued before issuing the impugned order.
5. Heard the learned counsel for the parties.
6. The petitioner has filed a copy of calculation chart, which was
provided to him by the department. From the aforementioned chart, it is
clear that excessive payment has been calculated w.e.f. June, 1986;
whereas the undertaking was given w.e.f. 01.01.1996. As per chart,
there was some difference in pay scale and some erroneous payment
was made in excess up to December, 1990 but thereafter the excessive
payment was made from January, 2006. The respondents have also
relied upon an undertaking given by the petitioner; thereby submitting
that in case if any excessive payment is made in view of the revision of
pay scale w.e.f.01.01.2006, then he would refund the same.
7. Thus, it is clear that excessive payment made to the petitioner
w.e.f. 01.01.2006 can be recovered in the light of undertaking given by
the petitioner. Thus, it is clear that excessive payment, which was made
to the petitioner up to June, 2015 can be recovered. Thereafter, another
undertaking was given by the petitioner in respect of revision of pay
scale w.e.f. 01.01.2016. And there is no claim by the respondents that
any erroneous payment was made of for June, 2015. Thus, it is held
that since the erroneous payment made to the petitioner w.e.f. January,
2006 till June, 2015 can be recovered in the light of undertaking given
by him.
8. Now the only question for consideration is as to whether the
petitioner was entitled for an opportunity of hearing to explain that no
erroneous fixation of pay was done or not?
9. The aforesaid question is no more res integra.
10. This Court in the case of Madhuri Sharan Patel Vs. The State
of M.P. and others, decided on 14.12.2023 in Writ Petition
No.14020/2016 has held as under :-
"8. Now the only question for consideration is as to
whether the petitioner should have been granted an
opportunity of hearing to explain that no excess
payment was made and salary was properly fixed as
per the revision of pay scale which was made w.e.f.
1.1.1986. It is not the case of the respondents that
any show cause notice was issued to the petitioner
prior to making recovery of excess payment.
9. Under these circumstances, this Court is of the
considered opinion that recovery of excess payment
of Rs.1,03,000/ - shall remain under suspended
animation and the petitioner shall file his
representation against recovery positively within a
period of 30 days from today . The respondents shall
consider and decide the representation (question of
recovery of excess payment) within a period of one
month from thereafter. If it is found that salary was
properly fixed as per revision of pay scale which
became applicable w.e.f. 1.1.1986 then the entire
recovery order shall automatically stand quashed and
the amount of Rs.3,19,168/ - shall also be refunded
back within a period of two months from thereafter,
failing which, the same shall carry interest @ 6% per
annum. However, if it is found that the petitioner was
erroneously paid excess payment then remaining part
of recovery order shall be executed and an amount of
Rs.1,03,000/- shall be recovered. Since, the petitioner
is a retired employee, therefore, if prayed, the
respondents shall extend the benefit of recovery of
the said amount in installments."
11. In the light of aforesaid order passed by this Court in the case of
Madhuri Sharan Patel (supra), it is held that the petitioner was
entitled for an opportunity of pre-hearing before passing of impugned
order of recovery.
12. Accordingly, it is directed that by treating the impugned order as
a show notice, the petitioner shall submit his explanation/representation
to the Senior Superintendent of Police (Radio), Bhopal (M.P.) within a
period of 15 days from today. The representation shall be submitted
personally In case if the representation is submitted within a period of
15 days from today, then the recovery of remaining outstanding amount
shall remain under suspended animation. If the representation is
allowed and if the respondents come to a conclusion that no erroneous
payment was made, then the impugned recovery shall automatically
stand quashed. But if the respondents come to a conclusion that
erroneous payment was made, then the excess payment made to the
petitioner w.e.f. January, 2006 to June, 2015 shall be recovered.
13. So far as the recovery of interest component is concerned, it is
not the case of respondents that any excess payment was made on
account of any misrepresentation made by the petitioner.
14. Therefore, under these circumstances this Court is of the
considered opinion that the interest component cannot be recovered
from the petitioner at all.
15. Since the petitioner is a retired employee, therefore, if prayed the
respondents shall extend the benefit of recovery of the outstanding
amount in installments.
16. With aforesaid observations, the petition is finally disposed of.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2023.12.22
17:37:29 +05'30'
