Madhya Pradesh High Court
Purushottamdas Sarathe vs The State Of Madhya Pradesh on 21 December, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.31034/2023
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. 31034 of 2023
BETWEEN:-
PURUSHOTTAMDAS SARATHE S/O LATE
NANHELAL SARATHE, AGED ABOUT 64
YEARS, OCCUPATION: RETIRED AS
DEPUTY DIRECTOR AGRICULTURE FROM
DINDORI R/O B-45, JASUJA CITY,
DHANWANTARI NAGAR, JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI BHUVNESH SHARMA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL
SECRETARY FARMER WELFARE AND
AGRICULTURAL DEVELOPMENT
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DEPUTY DIRECTOR AGRICULTURE
DINDORI DISTRICT DINDORI
(MADHYA PRADESH)
3. DISTRICT PENSION OFFICER,
DINDORI DISTRICT DINDORI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL)
...................................................................................................
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 seeking the following reliefs :-
"(i) Issue a writ in the nature of certiorari quashing
the impugned order dated 04.07.2023 (Annexure
P/3) passed by the respondent No.2-Deputy
Director Agriculture, Dindori and in pursuance
thereof, the recovery of Rs.3,28,559/- so made on
25.07.2023 be directed to be refunded to the
petitioner with interest.
(ii) Issue any other writ, order or direction as this
Hon'ble Court deems fit."
2. It is submitted by counsel for petitioner that petitioner has
retired from the post of Deputy Director, Agricultural, which is a
Class-I post. On attaining the age of superannuation, the entire claim
of petitioner has been paid except gratuity, which was paid on
25.07.2023 after deducting an amount of Rs.3,89,459/-. It is
submitted that said recovery has been made without issuing any
show cause notice and without following the principles of natural
justice. It is further submitted that recovery is bad in the light of
judgment passed by the Supreme Court in the case of State of
Punjab and others Vs. Rafiq Masih (White Washer) and others,
reported in (2015) 4 SCC 334.
3. Per contra, the petition is vehemently opposed by counsel for
State. It is submitted that since the petitioner is a Class-I Officer,
therefore, law laid down by the Supreme Court in the case of Rafiq
Masih (supra) is not applicable because it applies only to Class-III
and Class-IV employees.
4. Heard the learned counsel for the parties.
5. The Supreme Court in the case of Rafiq Masih (supra) has
held as under :-
"8. As between two parties, if a determination is
rendered in favour of the party, which is the weaker
of the two, without any serious detriment to the
other (which is truly a welfare State), the issue
resolved would be in consonance with the concept
of justice, which is assured to the citizens of India,
even in the Preamble of the Constitution of India.
The right to recover being pursued by the employer,
will have to be compared, with the effect of the
recovery on the employee concerned. If the effect of
the recovery from the employee concerned would
be, more unfair, more wrongful, more improper,
and more unwarranted, than the corresponding right
of the employer to recover the amount, then it
would be iniquitous and arbitrary, to effect the
recovery. In such a situation, the employee's right
would outbalance, and therefore eclipse, the right of
the employer to recover."
6. From reading of aforesaid paragraph, it is clear that where the
effect of recovery from an employee concerned would be more
unfair, more wrongful, more improper and more unwarranted, then
the corresponding right of employer to recover the amount would be
iniquitous and arbitrary to the effect of recovery. In order to find out
as to whether the recovery is arbitrary and iniquitous, status of
employee would naturally play an important role. Class-III and
Class-IV employees are lower paid employees and if recovery
running into lakhs is directed, then it would be iniquitous and
arbitrary and would also prove to be harsh on the said employee.
However, where the employees are highly paid employees and
recovery of excess payment made to them is not going to cause any
hardship to them, then it can be held that highly paid employees
form a class in itself and they cannot be equated with low paid
employees.
7. Under these circumstances, this Court is of considered opinion
that judgment passed by Supreme Court in the case of Rafiq Masih
(supra) is confined to Class-III and Class-IV employees only and all
the directions given in paragraph 18 of aforesaid judgment are
confined to Class-III and Class-IV employees only and are not
applicable to Class-I and Class-II employees.
8. Furthermore, in the light of Rule 65 of Madhya Pradesh Civil
Services (Classification, Control and Appeal) Rules, recovery of
excess payment is permissible. Thus, where the service rules permits
the employer to recover excess payment and such recovery does not
prove to be iniquitous or arbitrary or harsh on the employee, then no
fault can be found on the action of the authorities to recover the
excess payment made to Class-I and Class-II employees.
9. So far as the question of non-grant of opportunity is
concerned, the 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 petitioner was entitled
for an opportunity of pre-hearing before passing of impugned order of
recovery.
12. Accordingly, it is held that although the excess payment made
to the petitioner can be recovered but whether the excess payment
was really made or not shall be decided by respondents by giving an
opportunity of hearing to the petitioner by making a representation.
Accordingly, it is directed that by treating the earlier order as show
cause notice, the petitioner shall file a representation within a period
of 15 days from today thereby pointing out that any excess payment
was made or not? If the representation is filed within 15 days from
today, then the respondents shall decide the same within one month
from thereafter. If the respondents come to a conclusion that no
excess payment was made, then they shall withdraw the impugned
order; otherwise after deciding the question of liability, the
respondents shall further recover the aforesaid amount.
13. With aforesaid observation, the petition is finally disposed of.
(G.S.AHLUWALIA)
JUDGE
TG/-/vc
TRUPTI GUNJAL
2023.12.23
14:52:46 +05'30'
