Madhya Pradesh High Court
The State Of Madhya Pradesh vs Smt. Laxmi Barbe on 21 June, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WA No. 251 of 2023
(THE STATE OF MADHYA PRADESH AND OTHERS Vs SMT. LAXMI BARBE)
Dated : 21-06-2023
Shri Amit Seth - Deputy Advocate General for appellants/State.
Shri Balwant Rai - Advocate for respondent.
For the reasons assigned, IA No.2460 of 2023 for condonation of delay
is allowed. The delay is condoned.
Aggrieved by order dated 23.06.2022 passed by the learned Single Judge
in allowing Writ Petition No.8543 of 2018 and setting aside the impugned order
of recovery while directing refund of the amounts recovered, to the petitioner,
the State is in appeal.
Shri Amit Seth, learned Deputy Advocate General for the appellants
contends that the writ petitioner was instrumental in her entries in the service
record with regard to the benefit of Grade Pay of Rs.2400/- per month. The
same was added twice in the basic pay of the petitioner while fixation of pay in
the year 2011. As a result whereof, it was found that writ petitioner had wrongly
availed the benefit. Consequently, a show cause notice was issued. The same
was replied, wherein, a consent was given by the writ petitioner to the effect that
the recovery can be effected, however, the interest may be condoned. However,
the learned Single Judge came to the view that the matter is covered by the
judgment of the Hon'ble Supreme Court in the case of State of Punjab Vs.
Rafiq Masih reported in (2014) 8 SCC 883, with reference to para 18.
We have considered the same. There is no such finding recorded by the
Hon'ble Supreme Court in para 18 of the cited judgment. Apparently, it is a
mistake committed. The reference ought to have been to the judgment reported
in (2015) 4 SCC 334 in the case of State of Punjab & others Vs. Rafiq Masih.
That the learned Single Judge has also committed an error in coming to the
conclusion that the consent has been given by a mistaken notion of law and not
being aware of the judgments of the Hon'ble Supreme Court.
Learned counsel for the appellants contends that there was no ground
urged by the writ petitioner that the consent has been given in ignorance of law.
Therefore, the learned Single Judge could not have recorded a ground which
was not even raised by the writ petitioner. Hence, he pleads that the appeal be
allowed.
The same is disputed by the learned counsel for respondent/writ
petitioner. He has already filed his return. We have heard him at length.
The primary contention of the respondent is to the effect that the writ
petitioner is a Class-III employee and therefore, is covered by the exceptions as
carved out in the aforesaid judgment of the Hon'ble Supreme Court. That the
appellants are not entitled to make the recovery of the amount from her.
However, on hearing the learned counsels, we are of the view that
appropriate interference is called for.
The specific plea of the State that the writ petitioner was herself involved
in re-fixation of her pay, requires to be reconsidered. Not only that she has
already given her consent for recovery, the reasoning assigned by the learned
Single Judge that it was given in ignorance of law, is firstly not even a ground
urged by the writ petitioner. Secondly, it is not necessary for us to reiterate that
ignorance of law is no excuse. Therefore, that cannot be pleaded as a ground to
stall the recovery. Moreover, the directions given in the aforesaid judgment of
the Hon'ble Supreme Court appear to be in a case of bona fide mistake
committed by employer in re-fixation of pay. It does not refer to those cases
wherein the employee had a major role to play so far as the re-fixation or other
benefits and salary are concerned. Therefore, it is this issue also that requires to
be reconsidered. Hence, we are of the view that the order passed by the learned
Single Judge requires to be stayed.
Admit.
Stay of the order dated 23.06.2022 passed by the leaned Single Judge in
Writ Petition No.8543 of 2018.
The appellants/State are permitted to effect the recovery in terms of the
impugned order dated 01.02.2017 passed by appellant No.4/ Principal, Govt.
Art College Panagar, Jabalpur. However, in view of the peculiar facts and
circumstances involved, the appellants are directed not to effect recovery so far
as the interest on the said amount is concerned. All such recoveries will be
subject to further orders of this Court
IA No.2456 of 2023 for stay is disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
vibha
Digitally signed by
VIBHA PACHORI
Date: 2023.06.22
14:16:26 +05'30'
