Chhedi Lal Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 302 MP

                                                                       1
                                        IN    THE      HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                          ON THE 5 th OF JANUARY, 2023
                                                        WRIT PETITION No. 18808 of 2019

                                       BETWEEN:-
                                       CHHEDI LAL SHARMA S/O RAM MILAN TIWARI, AGED
                                       ABOUT 62 YEARS, OCCUPATION: RETD HEAD CLERK
                                       WARD NO 9,SANTOSHI VIHAR COLONY, NEAR SHIV
                                       TEMPLE, SANTOSHI MATA MANDIR TALAB, SATNA
                                       (MADHYA PRADESH)

                                                                                                 .....PETITIONER
                                       (BY SHRI RAHUL MISHRA - ADVOCATE)

                                       AND
                                       1.    THE STATE OF MADHYA PRADESH THR.
                                             PRINCIPAL SECRETARY DEPT. OF URBAN
                                             ADMINISTRATION    AND    DEVELOPMENT
                                             VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

                                       2.    COMMISSIONER URBAN ADMINISTRATION AND
                                             D EVELOPM EN T BHOPAL DIVISION (MADHYA
                                             PRADESH)

                                       3.    THE JOINT DIRECTOR LOCAL FUND AND AUDIT
                                             J A B A L P U R JABALPUR DIVISION JABALPUR
                                             (MADHYA PRADESH)

                                       4.    MUNICIPAL COUNCIL BRELA THR. ITS CHIEF
                                             MUNICIPAL    OFFICER BARELA  JABALPUR
                                             (MADHYA PRADESH)

                                                                                              .....RESPONDENTS
                                       (SMT. SWATI ASEEM GEORGE - PANEL LAWYER FOR RESPONDENT NOS.
                                       1 TO 3/STATE)
                                       (SHRI UTTKARSH AGRAWAL - ADVOCATE FOR RESPONDENT NO. 4)

Signature Not Verified
  SAN
                                             Th is petition coming on for hearing this day, th e court passed the

Digitally signed by VAIBHAV YEOLEKAR
                                       following:
Date: 2023.01.06 19:31:55 IST

                                                                        ORDER

This petition is filed being aggrieved to assail the order of recovery passed by the respondent no. 4 authority.

It is submitted that petitioner's case is squarely covered by the law laid down by the Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others (2012)8 SCC 417. It is further submitted that no recovery can be made from a retired Class-III employee.

Reliance is also placed on the judgment of the Supreme Court in State of Punjab and others Vs. Rafiq Masih (Whitewasher) (2014)8 SCC 883 wherein in para 18 it is held that recoveries by the employers will be impermissible in law from the employees belonging to Class-III and Class-IV

service (or Group 'C' and Group 'D' service) and similarly from the retired employees, or employees who are due to retire within one year of the order of recovery.

Shri Uttkarsh Agrawal, learned counsel for respondent no. 4 in his turn submits that in the case of Rafiq Masih (supra), it is held that orders passed in exercise of the authority under Article 142 of the Constitution of India will be on a different footing than the orders passed under Article 136 of the Constitution of India.

However, fact of the matter is that a Full bench of the Supreme Court in Syed Abdul Qadir and others Vs. State of Bihar and others (2009)3 SCC 475 has held in para 57 as under:-

This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the Signature Not Verified SAN excess amount was not paid on account of any misrepresentation or Digitally signed by VAIBHAV YEOLEKAR Date: 2023.01.06 19:31:55 IST fraud on the part of the employee and (b) if such excess payment

was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

When this aspect is taken into consideration and read along with the order passed in Chandi Prasad Uniyal (supra) and Rafiq Masih (supra), I am of the opinion that the recovery proposed by respondent no. 4 against a retired Class-III employee is not sustainable in the eyes of law and same is the ratio of a Division Bench judgment of this court in Dr. Yogendra Singh Vs. State of M.P. and others in W.A. No. 396/2016 which is binding on this court.

Accordingly, the petition deserves to be allowed and is allowed. The impugned recovery is set aside.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified SAN

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.01.06 19:31:55 IST