Jagram Patwa vs The State Of Madhya Pradesh
2023 Latest Caselaw 20 MP

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                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                ON THE 2 nd OF JANUARY, 2023
                                               WRIT PETITION No. 6482 of 2017

                          BETWEEN:-
                          JAGRAM PATWA S/O SHRI BAHORANLAL PATWA,
                          AGED ABOUT 61 YEARS, OCCUPATION: RETIRED
                          GOVERNMENT R/O NEAR CHANDRAI KOTHI WAR NO.
                          SHEEL NAGAR GWALIOR (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY MS. SMRATI SHARMA- ADVOCATE)

                          AND
                          1.    STATE OF MADHYA PRADESH THROUGH
                                PRINCIPAL SECRETARY PUBLIC HEALTH AND
                                FAMILY WELFARE DEPARTMENT MANTRALAYA
                                GOVT. OF M.P. VALLABH BHAVAN BHOPAL
                                (MADHYA PRADESH)

                          2.    CIVIL SURGEON    CUM    CHIEF            HOSPITAL
                                SUPERINTENDENT     DISTRICT              MORENA
                                (MADHYA PRADESH)

                          3.    DISTRICT PENSION OFFICER DISTRICT MORENA
                                (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI SHUSANT TIWARI- GOVERNMENT ADVOCATE )

                                Th is petition coming on for hearing this day, th e court passed the
                          following:
                                                             ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

i) That the impugned order contained in Annexure P/1 may kindly be quashed and consequently the respondent be Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM

directed to refund the amount of Rs.89,725/- to the petitioner alongwith 18% per annum interest forthwith.

ii) Cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner.

With the consent of parties, the matter is finally heard. Being aggrieved by the illegal and arbitrary action on the part of the respondents whereby they are intending to recover a sum of Rs.89,725/- along with 18% per annum from the retiral dues of the petitioner whereas in terms of the policy framed by the State Government itself, the petitioner was duly extended the benefits of Kramonati. The petitioner was retired on 30.11.2016,

therefore, the action of the respondent is highly illegal and bad in law. Therefore, has prayed for quashment of the aforesaid order.

It is stated by the petitioner that he was holding the post of Lab Technician and was posted at District Hospital Morena and after attaining the age of superannuation, stood retired on 30.11.2016. The initial appointment of the petitioner was in the year 1981 on the post of Lab Technician and in the year 1992 the petitioner was promoted as Bio-chemist. The State Government has issued a policy for extending the benefits of kramonati to the officers and employees of the State Government and it was decided to extend the benefits of upgradation of pay to the employees on completion of certain period of one year without getting promotion. The case of the petitioner was duly considered by the respondents for grant of first Kramonati benefit and the petitioner was found entitled for the same and accordingly the respondents have fixed the pay of the petitioner in the pay scale of Rs.5500-175-9000.

The contention of the petitioner is that he has never misrepresented or played fraud at any point of time, but at the time of retirement the respondents Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM

have recovered a sum of Rs.89,725/- from the gratuity of the petitioner, without issuing any show cause notice and without providing any opportunity of hearing. The petitioner has further submitted that an identically placed person namely one Surendra Kumar Rajoria who was a Lab Technician, has been extended the benefit of Kramonati and no recovery has been made from him. Thus, the act of the respondents is arbitrary and discriminatory to the spirit of Article 14 and 16 of the Constitution of India. The petitioner has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih (white washer) and ors. reported in 2015 (4) SCC 334 and stated that recovery from a Class III employee that too as a fraud, is not permissible. Accordingly, he prayed for quashment of the impugned order with further direction to the respondents to refund the amount of Rs89,725/- along with interest at the rate of 18% per annum.

Reply has been filed by the State Government and it has been pointed out that at the time of the retirement, the petitioner's service record was verified and the respondent No.4 has raised an objection.

Considering the aforesaid objection the pay fixation of the petitioner was verified. A due drawn statement has been prepared which reveals that an excess payment of Rs.56,638/- has been made to the petitioner which becomes to Rs.89,725/- on adding interest and the aforesaid amount is required to be

recovered from the petitioner. It is further contended that the petitioner was granted second Kramonnati in the pay scale of Rs.5500-175-9000 w.e.f. 07.12.2005 and the pay was fixed at Rs.7075/- whereas the petitioner has not completed 24 years of service. The pay fixation of the petitioner was wrong and he has been paid in excess despite of the fact that he was not entitled for the same. The respondents have further contended that an undertaking has been Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM

submitted by the petitioner as well as the indemnity bond stating that in case of any excess payment, he gives his consent to recover the same. Thus, the respondents have contended that the order impugned has rightly been passed as the petitioner is bound by the undertaking and does not call for any interference in the present writ petition. Accordingly, he has prayed for dismissal of the writ petition.

Heard the counsel for the rival parties and perused the record. It is an admitted fact that the petitioner who is a Class III employee has stood retired on 30.11.2016. The indemnity bond on which the heavy reliance has been placed by the respondents is dated 30.11.2016 which is taken the petitioner on the day of retirement. The aforesaid undertaking was taken because the post retiral dues of the petitioner will require to be settled.

The counsel appearing for the State could not point out the fact that the petitioner has misrepresented or played fraud at the time of revision of his pay, rather the department himself found petitioner entitled for kramonati benefits.

The aspect of recovery from the retired employee has been considered by the Hon'ble Supreme Court in the Case of State of Punjab and others. vs. Rafiq Masih (white washer) reported in (2015) 4 SCC 334 wherein the Hon'ble Supreme Court has laid down the following principles:-

"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:

Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the 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."

From the perusal of the aforesaid, it is apparently clear that the Hon'ble Supreme Court has held that the recovery from Class III and Class IV employee is impermissible.

Considering the aforesaid judgment of the Hon'ble Supreme Court and the fact that the petitioner stood retired in November, 2016 and the amount has been subsequently recovered from the post retiral claims of the petitioner, the order impugned being unsustainable in the light of the Supreme Court judgment, accordingly the same is quashed. The authorities are directed to refund the amount recovered from the petitioner in pursuance to the impugned order along with the interest of Rs.6% per annum within a period of 30 days.

The petition is allowed.

No order as to cost.

Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM

(MILIND RAMESH PHADKE) JUDGE Chandni

Signature Not Verified Signed by: ABDUR RAHMAN Signing time: 1/3/2023 5:45:56 PM