Smt. Kiran Pandey vs The State Of Madhya Pradesh
2023 Latest Caselaw 9453 MP

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                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                                ON THE 23 rd OF JUNE, 2023
                                             WRIT PETITION No. 12061 of 2021

                           BETWEEN:-
                           SMT. KIRAN PANDEY H/O LATE SHRI DAMRU LAL
                           PANDEY, AGED ABOUT 57 YEARS, OCCUPATION: HOUSE
                           WIFE H.NO.489/1 POST VIDYUT NAGAR BHATAULI,
                           RAMPUR JABALPUR DISTT. JABALPUR M.P. (MADHYA
                           PRADESH)

                                                                                      .....PETITIONER
                           (BY SHRI SACHIN PANDEY - ADVOCATE )

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 PRINCIPAL SECRETARY HOME DEPARTMENT
                                 MINISTRY VALLABH BHAVAN AND BHOPAL M.P.
                                 (MADHYA PRADESH)

                           2.    DIRECTOR GENERAL OF POLICE HEAD QUARTER
                                 BHOPAL DISTT. BHOPAL (MADHYA PRADESH)

                           3.    JOINT DIRECTOR TREASURY AND ACCOUNTS,
                                 REWA     DIVISION DISTT. REWA (MADHYA
                                 PRADESH)

                           4.    SUPERINTENDENT OF POLICE S.P.E. LOKAYUKT
                                 OFFICE REWA DIST. REWA (MADHYA PRADESH)

                           5.    SUPERINTENDENT OF POLICE (HEAD OFFICE)
                                 BHOPAL DISTT. BHOPAL (MADHYA PRADESH)

                           6.    DIVISIONAL PENSION OFFICER R E WA DISTT.
                                 REWA (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY SHRI AMIT PANDEY - PANEL LAWYER)

                                 This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: MANOJ NAIR
Signing time: 27-06-2023
11:00:17
                                                                          2
                           following:
                                                                           ORDER

The petitioner has filed this petition while praying for the following reliefs:-

(i) Call for relevant record pertaining to case of the petitioner for bare perusal of this Hon'ble Court.

(ii) Quash the impugned amended order of recovery dated 04.02.2021 vide Annexure-P/1 and reduced time pay scale 23.03.2018 Annexure-P/2 in the interest of justice. If any amount recovered from Gratuity be refund to the petitioner with interest.

(iii) Issue an appropriate writ commanding the respondent department to make fixation of salary as per Time Scale Pay w.e.

01.04.2006, in the interest of justice.

(iv) Issue an appropriate writ commanding the respondent department to revise the pension of the petitioner accordingly and pay him all consequential benefits thereof with interest @18% considering well being of the petitioner, in the interest of justice.

(v) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of litigation may kindly be awarded in favour of the petitioner.

2. Facts as elaborated in the petition reflect that the husband of the petitioner was appointed as Constable vide order dated 25.01.1983. The husband of the petitioner was extended benefits of promotion from time to time. The husband was also sent on deputation to State Economic Bureau, Rewa. While in service the husband of the petitioner died on 20.09.2020. Before the death of the husband of the petitioner, the Superintendent of Police, Bhopal raised an objection on 22.03.2018 (Annexure-P/2) that on account of promotion of the husband of the petitioner on the post of Assistant Sub Inspector, he was Signature Not Verified Signed by: MANOJ NAIR Signing time: 27-06-2023 11:00:17

not entitled for the benefits of time pay scale w.e.f. 01.04.2006. Thereafter, the respondent issued a PPO order dated 04.02.2021 (Annexure-P/1) and proposed a recovery of the excess amount.

3. Thus, assailing the recovery part contained in PPO order dated 04.02.2021 (Annexure-P/1), this petition is filed with a further challenge to the reduction of time pay scale vide order dated 22.03.2018 (Annexure-P/2).

4. Learned counsel at the very outset submits that he is confining his prayer to the recovery as contained in Annexure-P/1.

5. Learned counsel for the petitioner contends that in the present case, the benefits of time pay scale were extended to the husband of the petitioner without there being any fraud or misrepresentation on the part of the husband of the petitioner. The husband of the petitioner, did not execute any undertaking or the indemnity bond at the time of availing the said benefits and, therefore, the respondents were not justified in proposing the recovery after the death of the husband of the petitioner who died in harness on 20.09.2020.

6. It is contended by the counsel that an amount of Rs.2,48,477/- has been recovered from the retrial dues of the husband of the petitioner. The said 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. Therefore, submits that the Annexure-P/1, so

far as the same relates to the recovery be quashed.

7. Per contra, learned counsel for the respondent submit that in the present case, the petitioner who is widow of the decease employee submitted an undertaking and indemnity bond which have been brought on record as Annexure-R/2 and Annexure-R/3 and in terms of the said indemnity bond, the impugned PPO order was issued. Therefore, in view of the law laid down by Signature Not Verified Signed by: MANOJ NAIR Signing time: 27-06-2023 11:00:17

the Apex Court in the case of Chandi Prasad Uniyal v. State of Uttarakhand, (2012) 8 SCC 417 as well as the judgment of Apex Court in the case of State of Punjab and Haryana and Others Vs. Jagdev Singh reported in (2016) 14 SCC 267, no interference is warranted with the orders impugned.

8. Heard the rival submissions and perused the record.

9. The Coordinate Bench of this Court, in the case of S.S. Thakur vs. The State of M.P. (W.P. No.18803/2016) held that the undertaking has to be executed at the time of revision of pay scale which was availed by the concerned employee. This Court, held in paragraphs 18, 19 and 20 as under:-

18. Thus, the crucial aspect herein is as to whether the employer had 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 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 again also in Writ Petition No.62/2017 (Manak Lal Sahu Vs. The State of M.P.) held in paragraph 7 and 8 as under:-

I n the present case, the recovery has been proposed after the date of superannuation while issuing Pension Cover Sheet (Annexure-

P/1). The recovery as per return of the respondents is consequence of Signature Not Verified Signed by: MANOJ NAIR Signing time: 27-06-2023 11:00:17

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.

11. In Jagdev Singh (supra) the Hon'ble Supreme Court ruled thus :

"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 undertaking 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]

12. In view of the aforesaid, as in the present case, there is no undertaking or indemnity bond by the deceased employee at the time of availing Signature Not Verified Signed by: MANOJ NAIR Signing time: 27-06-2023 11:00:17

the benefit of fixation of pay scale, the reliance as is being sought to be placed on the decision of Jagdev Singh (supra) is misplaced and accordingly, in the light of the law laid down in the case of Rafiq Masih (supra), the respondents were not justified in passing the impugned order.

13. It is not the case of the respondent that the benefit of pay scale was availed as a result of fraud or misrepresentation by the deceased employee and therefore, in the absence of any such eventuality, the respondents were unjustified in passing the impugned order dated 04.02.2021 contained in Annexure P-1.

14. Therefore, the present petition is allowed to the extent of Annexure-P/1. The recovery as made in terms of Annexure-P/1 stands quashed.

15. The respondents are directed to forthwith release the amount recovered vide Annexure-P/1 within a period of 90 days from the date of production of certified copy of this order, failing which the amount shall incur interest @ 6% per annum.

16. Accordingly, the petition stands allowed to the extent indicated herein above.

17. Certified copy as per rules.

(MANINDER S. BHATTI) JUDGE mn

Signature Not Verified Signed by: MANOJ NAIR Signing time: 27-06-2023 11:00:17