Madhya Pradesh High Court
Smt Urmila Sharma vs The State Of M.P. on 28 November, 2023
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 28 th OF NOVEMBER, 2023
WRIT PETITION No. 13505 of 2021
BETWEEN:-
SMT URMILA SHARMA S/O LATE SHRI OM
PRAKASH SHARMA, AGED ABOUT 63 YEARS,
OCCUPATION: HOUSE WIFE R/O BILWARI
MOHALLA BAJARIYA NO.03 DAMOH (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMIT KUMAR CHATURVEDI-ADVOCATE )
AND
1. THE STATE OF M.P. THR. ITS PRINCIPAL
SECRETARY DEPARTMENT OF PANCHAYAT
AND RURAL DEVELOPMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE DEVELOPMENT COMMISSIONER
OFFICE OF DEVELOPMENT COMMISSIONER
VINDHYACHAL BHAWAN BHOPAL (MADHYA
PRADESH)
3. THE COLLECTOR D AM OH DISTT. DAMOH
(MADHYA PRADESH)
4. THE CHIEF EXECUTIVE OFFICER ZILA
PANCHAYAT DAMOH DISTT. DAMOH
(MADHYA PRADESH)
5. THE DISTRICT TREASURY OFFICER DAMOH
DISTT. DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY KAMALNATH NAYAK-ADVOCATE )
Signature Not Verified
Signed by: PREETI TIWARI
Signing time: 12/2/2023
1:14:05 PM
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This petition coming on for admission this day, the court passed
the following:
ORDER
With the consent of parties, the matter is heard finally.
2. By the present petition filed under Article 226 of the Constitution
of India, the petitioner who is widow of late Shri Om Prakash Sharma
who died in harness on 26.10.2018 serving as peon in Panchayat
Department. The petitioner has approached to this Court challenging the
order Annexure P-3 dated 24.1.2019 whereby it was directed to recover
the amount of Rs.4,86,482/- from the petitioner for the benefit of DCRG
and leave encashment payable to the petitioner on account of death of her
husband.
3. According to the respondents, the deceased/employee was paid
excess amount due to mistake committed by the concerning persons
whereby they extended the benefit of 5th and 6th pay scale to the husband
of the petitioner earlier whereas the Panchayat Department has later on
adopted the 5th and 6th payscale. Therefore, the local audit officer has
raised objection and thereafter the recovery was ordered. It is not in
disspute that the recovery proceedings were not initiated during the lifetime
of husband of petitioner and it was adjusted from the amount of benefit of
DCRG and leave encashment.
4. Learned counsel for the petitioner relied on the judgment of the
Apex Court delivered in the matter of State of Punjab & Ors. Vs. Rafiq
Mashi (white washer) reported in (2015) 4 SCC 334 wherein the Apex
Court issued the guidelines for recovery of amount paid earlier to the
government employees. He further submits that order of recovery may be
quashed and the necessary directions may be issued to the respondents to
pay the recovered amount along with the interest to the petitioner.
5. Per contra, learned counsel appearing for the respondents
supported the impugned order and submitted that due to wrong calculation
and inadvertent mistake, the additional payment was made to husband of
petitioner and therefore, the amount of Rs.,4,17,665/- was rightly
recovered from the amount payable to the petitioner.
6. The issue of recovery has already been decided by the Apex Court
in the matter of Rafiq Mashi (supra) wherein it has been held as under:
"It is not possible to postulate all situations of
hardship, which would govern employees on the issue
of recovery, where payments have mistakenly been
made by the employer, in excess of their entitlement.
Be that as it may, based on the decisions referred to
herein above, we may, as a ready reference,
summarise the following few situations, wherein
recoveries by the employers, 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.
(iv) 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."
7. It is not the case of the respondents that excess amount was paid
to the husband of the petitioner on account of misrepresentation or fraud
committed by him and therefore, he was not at fault for payment of excess
amount.
8. Consequently, the present petition is allowed and the impugned
order Annexure P-3 dated 24.1.2019 is quashed. The respondents are
directed to pay the deducted amount to the petitioner along with interest
@6% per annum from the date of recovery order Annexure P-3 till the
date of payment.
9. With the aforesaid, the petition is allowed without any order as to
costs.
(VINAY SARAF)
JUDGE
P/-
