Madhya Pradesh High Court
Nirbhay Kumar Soni vs Public Health And Family Welfare ... on 14 June, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 14 th OF JUNE, 2023
WRIT PETITION No. 2461 of 2015
BETWEEN:-
NIRBHAY KUMAR SONI S/O LATE SHRI MANAK CHAND
SONI, AGED ABOUT 60 YEARS, OCCUPATION: RETIRED
47 SECTOR C SAI NATH COLONY INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI L. C. PATNE, ADVOCATE)
AND
1. PUBLIC HEALTH AND FAMILY WELFARE
DEPARTMENT SECRETARY VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. CHIEF MEDICAL AND HEALTH OFFICER INDORE
(MADHYA PRADESH)
3. DIVISIONAL PENSION OFFICER
ADMINISTRATIVE SANKUL, COLLECTORATE,
MOTI TABELA, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH, GOVERNMENT ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
(1) The petitioner has filed this petition being aggrieved by the order
dated 22.01.2015 whereby the discrepancies in the pay scale at the time of grant
of Kramonnati has been rectified and order for recovery of the excess amount
has been passed.
(2) Inter-alia, the petitioner has assailed the impugned order on the
ground of the judgment passed by Apex Court in the case of State of Punjab
and others Vs. Rafiq Masih (White Washer).
(3) The respondents have filed a reply by submitting that the petitioner
gave an undertaking that if any amount is found to be paid excess to him, the
same shall be recovered from him.
Shri Patne, learned counsel for the petitioner submits that the respondents
have filed three undertakings which were given at the time of grant of benefits of
pay commission. No such undertaking was taken from the petitioner before or
after grant of Kramonnati. Therefore, the law laid-down by the Apex Court in
the case of State of Punjab and others Vs. Jagdev Singh shall not apply in this
case as the petitioner did not give any undertaking for pay fixation for grant of
first and second time scale.
In similar facts and circumstances, the Co-ordinate Bench of this Court
has allowed the petition No. 6425/2015 dated 13.04.2023. The operative part of
the petition is reproduced as under :-
"Lear ned counsel for the petitioner challenges the
aforesaid recovery on the strength of judgment of Hon'ble the
Supreme Court in the case of State of Punjab and others Vs.
Rafiq Masih (White Washer) etc (2015 (1) MPHT 130 (SC),
wherein it has been held as under:
"While it is not possible to postulate all situations
of hardships where payments have mistakenly been
made by an employer, in the following situations, a
recovery by the employer would be impermissible
in law:
(i) Recovery from employees belonging to Class-III
and Class-IV service (or Group 'C' and Group 'D'
service).
(ii) Recovery from retired employees, or employees
who are due to retire within one year of the order
of recovery.
(iii) Recovery from employees, when the excess
payment has been made for a period in excess of
five years, before the order of recovery is issued.
(i v ) 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."
Learned counsel has relied upon clauses (ii) and (iii) above to
bolster his submissions. It is submitted that neither during
petitioner's entire service career nor at the time of revision of
payscale any undertaking was ever furnished by the petitioner. That
apart, the entire recovery without any notice and opportunity of
hearing is patently illegal for want of observance of principles of
natural justice. Therefore, the impugned recovery, deserves to be
quashed.
Per contra learned counsel for the respondent contends that
an indemnity bond was submitted by the petitioner (Annexure R/2)
whereunder petitioner has undertaken that any loss or damage or
overpayment in pensionary benefits or otherwise in pay revision, if
discovered, may be recovered from him. The benefit of aforesaid
dictum of the Apex Court cannot be claimed in the light of judgment
of Hon'ble Supreme Court in the case of High Court of Punjab and
Haryana Vs. Jagdev Singh passed in Civil Appeal No. 3500 of 2006
(Annexure R/2), wherein the Hon'ble Supreme Court while
addressing upon similar issue in the light o f Rafiq Masih's case
(Supra) has held that at the time of revision of pay since the
petitioner therein had given an undertaking that any payment found to
be in excess shall be liable to be adjusted, the benefit of aforesaid
judgment cannot be extended under such circumstances. With the
aforesaid submissions, learned Government Advocate submits that
no illegality has been committed while ordering recovery.
In response, learned counsel for the petitioner contends that
judgment of Hon'ble Supreme Court in the case of Jagdev Singh
(Supra) is distinguishable on facts and has no application to factual
matrix in hand, inasmuch as, at the time of extension of benefit of
revised payscale neither any undertaking was required from the
petitioner nor petitioner furnished any such undertaking. As such, the
judgment of the Apex Court in the case of Rafiq Masih (Supra) has
full application.
Heard.
Looking to the factual matrix in hand, it is evident that the
impugned recovery has been ordered in the context of alleged excess
payment made from 2006 to 2015 consequent upon revision of
payscale. Admittedly, no undertaking of the nature as referred to in
paragraph 9 of the judgment in Jagdev Singh's case (Supra) was
either asked for or furnished by the petitioner. Under these
circumstances, judgment of Apex Court in the case of Rafiq Masih
(Supra) has full application to the facts in hand firstly for the reason
that neither the petitioner was given any notice nor opportunity
before ordering recovery. Secondly, the aforesaid recovery allegedly
in the context of revision of payscale cannot be made as the same is
covered by clauses (ii) and (iii) of the said judgment, as quoted
above."
In view of the above discussion and observation, present writ petition is
allowed and recovery of the amount is hereby quashed. However, rectification
in pay scale due to grant of both Kramonnati is hereby upheld.
Learned counsel for the petitioner further submits that the petitioner is
entitled for interest also on the amount which has not been paid so far.
Learned Government Advocate for the respondent/State opposes the
prayer by submitting that the petitioner is not entitled for interest for the amount
which was paid to the petitioner without his entitlement. Therefore, no question
for grant of interest is made out.
Shri Patne has pointed out from the reply filed by respondents that the
entire gratuity amount and 10 % of pension have been withheld due to the
impugned recovery. They ought to have returned the gratuity or 100% of
pension by deducting this Rs.1,94,492/-. Instead of granting the interest on
amount of recovery, petitioner shall entitle for interest 6 % per annum on the
amount of gratuity and amount of 10% pension withheld by the respondents.
(VIVEK RUSIA)
JUDGE
Vindesh
Digitally signed by VINDESH RAIKWAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH
VINDESH
COURT OF MADHYA PRADESH BENCH
INDORE,
2.5.4.20=2cae43fc7490310e3840bae97
e2725901dee838523e57439ec62a5ee8
RAIKWAR
8dc430c, postalCode=452001,
st=Madhya Pradesh,
serialNumber=E49DAA8D0FEF53054B7
A97DEFB4C3BF6C0B15A7DB15DD30D
ED46D26B5C6F4CA8, cn=VINDESH
RAIKWAR
Date: 2023.06.14 03:22:46 +05'30'
