Madhya Pradesh High Court
Uma Shankar Yadav vs The State Of Madhya Pradesh on 21 December, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 WP No.4849/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21st OF DECEMBER, 2023
WRIT PETITION No. 4849 of 2023
BETWEEN:-
UMA SHANKAR YADAV S/O SHRI SURTAN SINGH
YADAV, AGED ABOUT 62 YEARS, OCCUPATION:
SERVICE WORKING AS SUB INSPECTOR (DINDORI)
R/O DISTRICT- POLICE LINE DINDORI DISTRICT
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SACHIN PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
ITS PRINCIPAL SECRETARY HOME
DEPARTMENT MINISTRY, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. THE ADDITIONAL GENERAL OF POLICE
BHOPAL (MADHYA PRADESH)
3. THE JOINT DIRECTOR TREASURY AND
ACCOUNTS CIVIL LINE JABALPUR (MADHYA
PRADESH)
4. THE SUPERINTENDENT OF POLICE BHOPAL
DISTRICT DINDORI JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
2 WP No.4849/2023
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 order dated 08.02.2023 passed by Superintendent of Police,
Dindori in File No.Pu.Di./Vetan/D-729 by which recovery of
Rs.1,85,242/- has been directed.
2. It is submitted by counsel for petitioner that before issuing the
said order no show cause notice was issued to petitioner. Even otherwise
petitioner is Class-III employee, therefore, in the light of judgment
passed by Supreme Court in the case of State of Punjab & Others vs.
Rafiq Masih (White Washer) and another reported in (2015) 4 SCC
334, recovery is not permissible after retirement of petitioner.
3. Per contra, petition is vehemently opposed by counsel for State. It
is submitted that petitioner had executed an undertaking to the effect the
salary has been refixed in the light of revision of pay scale which has
been made applicable w.e.f. 01.01.2006 and if any erroneous payment is
made, then he shall refund the same. Thus, in the light of undertaking
given by petitioner on 16.05.2009, excess payment made to petitioner is
recovery in the light of judgment passed by Supreme Court in the case
of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh reported
in (2016) 14 SCC 267.
4. Heard learned counsel for parties.
5. There is no averment in the writ petition that undertaking dated
16.05.2009 was obtained under coercion or compulsion and it was not
voluntary. Thus, it is clear that petitioner has given undertaking that if
any excess payment is made on account of refixation of his salary in the
light of Revision of Pay Rules, 2009 which has been made applicable
from 01.01.2006, then he would refund the same.
6. Now the only question for consideration is as to whether recovery
has been directed in respect of any excess payment made after
01.01.2006 or not?
7. Neither petitioner nor respondents have filed calculation sheet to
show that on what date the excess payment was made, therefore, it is
difficult to ascertain as to whether recovery as ordered by respondents is
recoverable under undertaking dated 16.05.2009 or not?.
8. Furthermore, it is the case of petitioner that impugned order has
been issued without giving any show cause notice to him. Even if the
amount is recoverable, still the petitioner has a right to represent that no
erroneous payment was made to him. 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."
9. In the light of aforesaid order passed by this Court in the case of
Madhuri Sharan Patel (supra), it is held that petitioner was entitled for
an opportunity of pre-hearing before passing of impugned order of
recovery.
10. Accordingly, this Court is of considered opinion that impugned
order dated 08.02.2023 by which recovery of Rs.1,85,242/- has been
directed, cannot be given the stamp of judicial approval on the ground of
violation of principles of natural justice. Accordingly, the same is kept
under suspended animation.
11. Accordingly, it is directed that within 15 days from today,
respondent No.4 shall issue a comparative chart pointing out the dates on
which so called excess payment was made to petitioner. Petitioner shall
submit his response to the said comparative chart within a period of one
month from thereafter. Respondent No.4 shall decide the question as to
whether in the light of undertaking, any excess payment was ever made to
petitioner or not. If respondent No.4 comes to a conclusion that no excess
payment was made, then he would withdraw the impugned order dated
08.02.2023. If respondent No.4 comes to a conclusion that some lesser
excess payment was made, then he would modify the order dated
08.02.2023. In case respondent No.4 comes to a conclusion that amount as
pointed out in order dated 08.02.2023 was paid erroneously in excess of
entitlement of petitioner, then only he would proceed further with order
dated 08.02.2023.
12. It is needless to mention here that liability of petitioner as fixed by
order dated 08.02.2023 shall be decided by passing a speaking order
without getting influenced or prejudiced by any of the observation made
by this Court in this order.
13. With aforesaid observations, petition is finally disposed of.
(G.S. AHLUWALIA)
JUDGE
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Date: 2023.12.22 15:02:06 +05'30'
