Madhya Pradesh High Court

Shashi Prakash Dubey vs The State Of Madhya Pradesh on 27 June, 2023

Author: Maninder S. Bhatti

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 27 th OF JUNE, 2023
WRIT PETITION No. 17749 of 2017

BETWEEN:-
SHASHI PRAKASH DUBEY S/O SHRI J.P. DUBEY, AGED
ABOUT 60 YEARS, OCCUPATION: RETD. D.S.P. R/O. 5/2,
DIL PASAND AVENUE FLAT NO. 303, MANORAMAGANJ
PALASIA INDORE, DISTT. INDORE (M.P.) (MADHYA
PRADESH)

.....PETITIONER
(BY SHRI PRASHANT AWASTHI-ADVOCATE)

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

2. DIRECTOR GENERAL OF POLICE POLICE
HEAD QUARTER S JAHANGIRABAD (MADHYA
PRADESH)

3. SUPERINTENDENT OF POLICE BETUL DISTT-
BETUL (MADHYA PRADESH)

4. DISTRICT PENSION OFFICER DIRECTORATE OF
PENSION DISTT-BETUL (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI VINOD MISHRA-ADVOCATE)

This petition coming on for admission this day, th e court passed the
following:
ORDER

The petitioner has filed this petition seeking quashment of the orders dated 12/09/2017 (Annexure P/1) and dated 18/09/2017 (Annexure P/1A). Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM

2. Learned counsel for the petitioner contends that the petitioner while working against the post of Deputy Superintendent of Police stood superannuated on 31/07/2017. After order of retirement, the petitioner was confronted with the order of recovery which is contained in (Annexure P/1) dated 12/09/2017 and it was intimated to the petitioner that the excess amount paid to the petitioner during the course of employment is to be recovered from the petitioner to the tune of Rs.3,02,720/-. Accordingly, in view of the order of recovery dated 12/09/2017, the terminal dues of the petitioner were not disbursed.

3. Learned counsel for the petitioner contends in the present case

there can not be any recovery against the petitioner after retirement. It is further contended by the counsel that the petitioner was not at fault while availing the benefit of Second Time Pay Scale which was extended to the petitioner by the respondents. There was no fraud or misrepresentation on the part of the petitioner and the benefits were extended by the respondents on their own violation, therefore, after attaining the age of superannuation, there could not have been any recovery by the respondents, therefore, the interim orders contained in Annexure P/1 and Annexure P/1A deserve to be quashed.

4. Per contra, learned counsel for the respondents submits that the petitioner herein was extended the benefit of Second Time Pay Scale w.e.f. 01/04/2006 instead of 01/09/2007. Accordingly, the District Pension Officer issued direction for re-fixation for the salary of the petitioner and also issued direction to recover the excess payment already made to the petitioner. Thus, in view of the objection dated 06/04/2016 and 12/07/2017 (Annexure R/1), by the District Pension Officer, the recovery has been proposed against the petitioner.

5. It is contended by the petitioner that the petitioner herein executed Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM

an indemnity bond while availing the benefit of the fixation of pay scale, therefore, in view of the law down by the Apex Court in the case of State of Punjab and Haryana and Others Vs. Jagdev Singh reported in (2016) 14 SCC 267 order of recovery can not be disputed, thus, submits that the order of recovery deserves to be dismissed.

6. No other point is pressed by the parties.

7. Heard rival submissions of the parties and perused the record.

8. In the present case, undisputedly the petitioner herein has been superannuated on 31/07/2017 from the post of Deputy Superintendent of Police. After superannuation of the petitioner, the petitioner has been confronted with the order of recovery which are contained in Annexure P/1 and Annexure P/1A. The recovery is towards the amount which was paid to the petitioner inasmuch as, as per the stand of the respondents, the benefit of Second Time Pay Scale was to be granted to the petitioner, w.e.f. 01/09/2007 whereas the same was extended to the petitioner w.e.f. 01/04/2006.

9. The respondents though has placed reliance on the indemnity bond which has been brought on record as Annexure R/3 but the same does not disclose any date on which the same was executed. The respondents have not brought on record any documents and there are no averment in the entire return as to on which date, the said indemnity bond was executed by the petitioner.

The petitioner while filing rejoinder has made specific averment in paragraph 2 thereof, that the petitioner did not execute any undertaking or any indemnity bond when the benefit of Second Time Pay Scale was made available to the petitioner.

10. The aspect of execution of indemnity bond or undertaking was

Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM

taken into consideration by this Court in the case of Jagdev Singh (Supra). The Apex Court in paragraph 11 & 12 in the case of Jagdev Singh (Supra) has held 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 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]

11. 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 Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM

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.

12. 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 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.

13. Thus, in view of the aforesaid, as the petitioner did not execute any indemnity bond or undertaking at the time of availing the benefit, the petitioner would not have been confronted with the recovery.

14. Accordingly, the orders dated 12/09/2017 (Annexure P/1) and 18/09/2017 (Annexure P/1A) stand quashed. The respondents are directed to forthwith release the retiral dues of the petitioner including the amount mentioned in the impugned orders dated 12/09/2017 (Annexure P/1) and 18/09/2017 (Annexure P/1A) within a period of 90 days from the date of production of certified copy of this order, failing which the same shall incur interest @ 6% per annum.

Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM

15. With the aforesaid, petition stands disposed of.

16. Certified copy as per rules.

(MANINDER S. BHATTI) JUDGE Astha

Signature Not Verified Signed by: ASTHA SEN Signing time: 7/1/2023 5:10:47 PM