Madhya Pradesh High Court
Mohan Verma vs The State Of Madhya Pradesh on 4 July, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 4 th OF JULY, 2023
WRIT PETITION No. 27375 of 2021
BETWEEN:-
MOHAN VERMA S/O LATE SHRI RAM SINGH
VERMA, AGED ABOUT 56 YEARS, OCCUPATION:
ASI P.S. MISROD BHOPAL H NO.123 HARI GANGA
NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ATUL KUMAR RAI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY HOME POLICE DEPT.
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE
HEADQUARTERS JAHANGIRABAD BHOPAL
(MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE, BHOPAL (HQ)
S.P.OFFICE C, BLOCK OLD SECRETARIAT
BHOPAL (MADHYA PRADESH)
4. ADDL. SUPERINTENDENT OF POLICE
BHOPAL (HQ) S.P.OFFICE C, BLOCK OLD
SECRETARIAT BHOPAL (MADHYA PRADESH)
5. PUBLIC INFORMATION OFFICER (RIGHT TO
INFORMATION ACT) SUPERINTENDENT OF
POLICE OFFICE (HQ) (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRANJAL DIWAKAR - PANEL LAWYER FOR THE
RESPONDENT/STATE)
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
2
This petition coming on for admission, this day, the court passed
the following:
ORDER
This petition is filed by the petitioner while seeking quashment of the
order dated 23.06.2021, contained in Annexure P-1.
2. Learned counsel contends that the petitioner herein was extended
benefit of additional increment upon promotion against the post of Head
Constable in the year 2003. The said benefit, made available to the
petitioner is being sought to be withdrawn by the respondent by passing
the impugned order. It is contended by the counsel that the respondents
have taken a stand that as, a benefit of kramonnati was already given to the
petitioner on 19.04.1999, the petitioner was not entitled for the additional
increment upon being promoted as Head Constable.
3. The counsel contend that the recovery goes contrary to the law
laid down by the Apex Court in the case of State of Punjab and Others
Vs. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC
334. It is further contended by the counsel that the benefit of increment
was extended to the petitioner from 2003 onwards and neither, any
undertaking nor any indemnity bond was executed by the petitioner at that
time. Thus, it is contended by the counsel that in the absence of any
misrepresentation or fraud on the part of the petitioners, the respondents
were unjustified in passing the impugned order contained in Annexure P-1
and Annexure P-2.
4. Learned counsel for the respondent submit that in the light of the
judgment of Apex Court in the Case of Punjab and Haryana and Others
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Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
Vs. Jagdev Singh reported in (2016) 14 SCC 267, the petitioner cannot
dispute the recovery in as much as the petitioner having executed an
undertaking on his own volition, is now estopped from assailing the order
of recovery. The undertaking as well as indemnity bond executed by the
petitioner having been brought on record as Annexure R-3, it is contended
by the counsel that in view of the indemnity bond and the undertaking, and
in the light of judgment of the Apex Court in the case of Jagdev Singh
(supra), no interference is warranted.
5. Having heard the submissions advanced on behalf of the
petitioner, a perusal of the record reflects that the petitioner herein was
extended benefit of one additional increment in the year 2003 as the
petitioner was promoted against the post of Head Constable. The
respondents had proposed the recovery on the ground that benefit of
kramonnati was already extended to the petitioner on 19.04.1999.
Therefore, despite promotion against the post of Head Constable, he was
not entitled for an additional increment and accordingly, the order
impugned pertaining to recovery as contained in Annexure P-1 and
Annexure P-2 were issued.
6. A perusal of the aforesaid reflect that the respondents in order to
justify their stand, have brought on record, Annexure R-3 which contains
an undertaking as well as indemnity bond said to be executed by the
petitioner in the year 2017. The said indemnity bond, pertains to the pay
fixation w.e.f.01.01.2016. Neither, the indemnity bond nor the undertaking
pertains to the increment which was extended to the petitioner in the year
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Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
2003.
7. Undisputedly, the respondents have failed to demonstrate as to
whether the petitioner executed any undertaking or indemnity bond in the
year 2003 when the benefit of additional increment was granted to the
petitioner.
8. The Apex Court in the judgment of Jagdev Singh (supra) held in
as under:-
11. The principle enunciated in Proposition (ii) above cannot
apply to a situation such as in the present case. In the present case,
the officer to whom the payment was made in the first instance was
clearly placed on notice that any payment found to have been made
in excess would be required to be refunded. The officer furnished an
undertak ing while opting for the revised pay scale. He is bound by
the undertaking.
12. For these reasons, the judgment of the High Court which
set aside the action for recovery is unsustainable. However, we are
of the view that the recovery should be made in reasonable
instalments. We direct that the recovery be made in equated monthly
instalments spread over a period of two years."
[Emphasis supplied]
9. The co-ordinate bench of this Court in W.P.No.18803/2016 (S.S.
Thakur Vs. State of M.P. and others) held that the undertaking has to be
executed at the time of revision of pay scale which was availed by the
concerned employees. This Court, held in paragraphs 18, 19 and 20 as
under:-
18. Thus, the crucial aspect herein is as to whether the employer
h a d obtained any written undertaking from the petitioner at the time of
revising the pay-scale (w.e.f. 01.01.2006) which led to excess payment, and
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
the nature of undertaking submitted by petitioner.
1 9 . In the instant case, the petitioner attained the age of
superannuation on 31.03.2016; whereas, the excess payment was made
vide order dated 28.01.2016 while there is nothing on record to show that
on or before 28.01.2016, the employer had taken any written undertaking
from the petitioner.
20. Not having done so, the respondents herein are estopped from
effecting the impugned recovery. As explained above, neither the plea of
petitioner having furnished "Indemnity Bond" at the time of retirement, nor
the provision of Rule 65 of M.P. Civil Service (Pension) Rules 1976, can be
of any assistance to the State and its functionaries.
10. This Court in Manak Lal Sahu Vs. State of Madhya Pradesh in
Writ Petition No.62/2017 held as under:-
In the present case, the recovery has been proposed after the date
o f superannuation while issuing Pension Cover Sheet (Annexure-P/1). The
recovery as per return of the respondents is consequence of incorrect pay-
fixation of the petitioner in the scale of pay of Rs. 5200-20200/- w.e.f. 01-
01-2006. Along with the return, there is one indemnity bond, which is
contained in Annexure-R/1, which is said to be executed on 09-06-2016.
Therefore, undisputedly, the said indemnity bond was executed by the
petitioner just before 21 days of his superannuation,as he was
superannuated on 30-06-2016. Annexure-R/2 which is also brought on
record, contains an undertaking which is also executed by the employee
while seeking extension of retiral dues. There is no document on record to
show that at the time of extension of benefit of pay-fixation w.e.f. 01-01-
1996 any undertaking or indemnity bond was executed by the petitioner.
In view of the aforesaid, as the respondents have failed to
demonstrate that any undertaking was executed by the petitioner in the year
2006 when the benefit of pay-fixation was availed of by the petitioner, the
respondents on the strength of indemnity bond executed at the time of
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Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
retirement by the petitioner, cannot recover any amount from the
petitioner.
11. Thus, the aforesaid analysis makes it abundantly clear that at the
time of availing the benefit in the year 2003 no undertaking or indemnity
bond was executed by the petitioner. Under the garb of the Indemnity
bond as well as undertaking which were executed by the petitioner in the
year 2017, the respondents were not justified in issuing the order impugned
contained in Annexure P-1 and P-2.
12. In view of the law laid down by the Apex Court in the case of
Rafiq Masih (Supra) the impugned order passed by the respondents being
unsustainable, deserves to be quashed.
13. Accordingly, the impugned order contained in Annexure P-1
and P-2 stands quashed. The amount already recovered on the strength of
impugned order contained in Annexure P-1 and P-2 shall be refunded to
the petitioner within a period of 90 days from the date of production of
certified copy of this order, failing which, the same will carry interest @
6%.
14. With the aforesaid, the petition stands disposed of.
(MANINDER S. BHATTI)
JUDGE
veni
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 7/7/2023
11:59:25 AM
