Madhya Pradesh High Court
Mukesh Naik vs The State Of Madhya Pradesh on 21 November, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 21 st OF NOVEMBER, 2023
WRIT PETITION No. 7267 of 2021
BETWEEN:-
MUKESH NAIK S/O SHRI PURSHOTTAM NAIK, AGE: 50
YE A R S , OCCUPATION: RETIRED, ADDRESS: MAIN
ROAD THIKRI, DISTRICT BARWANI (MADHYA
PRADESH)
.....PETITIONER
(NONE PRESENT.)
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
SECRETARY, TRIBAL DEVELOPMENT
DEPARTMENT, MANTRALAYA, VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE JOINT DIRECTOR, TREASURY AND
A C C O U N T S , INDORE, DISTRICT INDORE
(MADHYA PRADESH)
3. THE DISTRICT PENSION OFFICER, PENSION
OFFICE, BARWANI, DISTRICT BARWANI
(MADHYA PRADESH)
4. THE PRINCIPAL, GOVERNMENT BOYS HIGHER
SECONDARY SCHOOL, THIKRI, DISTRICT
BARWANI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDHANSHU VYAS - ADVOCATE.)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Perused the record of the case.
The petitioner has filed this petition under Article 226 of the Constitution
of India being aggrieved by order dated 11.03.2019 (Annexure P/7) issued by
the Principal, Government Higher Secondary School, Thikri, District Barwani
(respondent No.4) mentioning therein the objection raised by the District
Pension Officer, District Pension Office, Barwani (respondent No.3) regarding
excess payment made to the petitioner, thereby a total recovery of
Rs.1,50,847/- (rupees one lakh fifty thousand eighty hundred forty seven only)
[principal recovery amount of Rs.71,664/- plus Rs.79,183/- interest] has been
raised and it was directed that the aforesaid amount be recovered from the
gratuity of the petitioner.
2. The petitioner was initially appointed on the post of Teacher vide order
dated 03.11.1982. Thereafter, he was promoted to the post of Upper Division
Teacher (U.D.T.) vide order dated 07.07.2006. The benefit of Kramonnati
was given to him with effect from 03.11.2006 in compliance of order dated
14.02.2011 passed by this Court in Writ Petition No.1444 of 2011. The
petitioner attained the age of superannuation and retired from services on
31.01.2019. After retirement, the respondents issued Pension Payment Order
(P.P.O.) and also simultaneously ordered for recovery of Rs.1,50,847/- from
the gratuity amount. Hence, the petitioner has filed this petition.
3. The respondents have filed reply by submitting that the principal amount
of recovery is Rs.71,664/- and on which interest of Rs.79,183/- has been
imposed, as an objection was raised by the District Pension Officer that on
account of grant of Sixth Pay Commission, the pay scale of the petitioner was
revised and recovery has been ordered. Therefore, excess amount is liable to
be recovered, as the above excess payment of salary was made to the
petitioner, on account of wrong pay fixation.
4. According to the respondents, the petitioner gave an undertaking that any
recovery pending against him be made from his retiral dues, therefore, in view
of the judgment passed by the Apex Court in case of High Court of Punjab
and Haryana v/s Jagdev Singh [(2016) SCC OnLine 748] excess amount
can be recovered wherein undertaking has been furnished by the petitioner.
5. The respondents have also placed reliance on a circular dated 31.05.2011
(Annexure R/2) and various judgments passed by the Apex Court as well as this
Court to justify the impugned action. The respondents have also placed reliance
on a judgment passed by Division Bench of this Court in case of W.A.
No.340/2017 (Gwalior Bench) The State of Madhya Pradesh & others v.
Laxman Prasad Sharma S/o Late Shri Brijmohan Sharma decided on
27.09.2017.
6. In this case, the respondents have issued a demand notice / order dated
11.03.2019 (Annexure P/7) for a total recovery of Rs.1,50,847/- on account of
wrong pay fixation of the petitioner.
7. The so called undertaking / Indemnity Bond dated 14.03.2019 (Annexure
R/3) is given by the petitioner, that too, after his retirement. No such
undertaking is on record which was said to be given at the time of pay fixation,
therefore, the law laid down by the Apex Court in case of Jagdev Singh
(supra) will not apply in this case, hence in view of the law laid down by the
Apex Court in the case of Punjab and others Vs. Rafiq Masih (White
Washer) etc. [2015 (1) MPHT 130 (SC)] no recovery is permissible after
retirement of the petitioner.
8. Recently, the Apex Court in case of Smt. Sasikala Devi. P v/s State of
Kerala in Civil Appeal No.8716/2012 has set aside the recovery of an
amount already paid to the employee relying on a judgment of Rafiq Masih
(supra). In case of M.P. Medical Officer Association v/s State of M.P. and
others in Civil Appeal No.5527/2022, the Apex Court has set aside the
recovery of amount paid to the class one gazette Officer by observing that there
was neither any misrepresentation on the part of the concerned
employee/members of the appellant Association nor can mistake be attributable
to them as certain benefits were given by the Government while issuing a
circular, therefore, no recovery shall be made from their pensionary benefit.
9. The petitioner is a Class-III employee and recovery has been ordered at
the time of retirement. No opportunity of hearing was given to the petitioner
before recovering the amount from the gratuity. The undertaking taken from the
petitioner forcibly at the time of retirement has no meaning, because at the time
of pay fixation, no such undertaking was obtained from the petitioner. Hence,
impugned order dated 11.03.2019 (Annexure P/7) is hereby quashed. The
amount of recovery, if any made from the petitioner, be refunded to him within
a period of sixty days from today.
Certified copy, as per Rules.
(VIVEK RUSIA)
JUDGE
rcp
