Smt. Asha Shrivastava vs The State Of Madhya Pradesh
2023 Latest Caselaw 16346 MP

                                                             1
                          IN    THE         HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                          BEFORE
                                                     JUSTICE SUJOY PAUL
                                               ON THE 5 th OF OCTOBER, 2023
                                             WRIT PETITION No. 14307 of 2016

                         BETWEEN:-
                         SMT. ASHA SHRIVASTAVA W/O LATE SHRI BASANT
                         SHRIVASTAVA, AGED ABOUT 55 YEARS, SANKAL ROAD
                         OPPOSITE HANUMAN MANDIR KARAHIYAKHEDA
                         KANDELI NARSINGHPUR DISTRICT NARSINGHPUR
                         (MADHYA PRADESH)

                                                                                    .....PETITIONER
                         (BY SHRI ANKIT CHOPRA - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH THROUGH
                               THE PRINCIPAL SECRETARY, DEPARTMENT OF
                               SCHOOL EDUCATION MANTRALAYA VALLABH
                               BHAWAN BHOPAL (MADHYA PRADESH)

                         2.    DISTRICT EDUCATION OFFICER NARSINGHPUR
                               (MADHYA PRADESH)

                         3.    PRINCIPAL, GOVT. HIGHER SEC.             SCHOOL
                               NARSINGHPUR (MADHYA PRADESH)

                         4.    DISTRICT PENSION OFFICER, NARSINGHPUR
                               DISTRICT NARSINGHPUR (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                         (BY SHRI TARUN SENGAR - PANEL LAWYER)

                               T h is petition coming on for orders this day, t h e cou rt passed the
                         following:
                                                              ORDER

With the consent finally heard.

2. The petitioner is widow of late Basant Shrivastava who died in Signature Not Verified Signed by: MANJU Signing time:

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harness on 27/01/2016. The respondents thereafter issued Pension Payment Order (PPO) wherein it is mentioned that excess payment is to be recovered. The excess payment is reflected in a chart (page-25) and duration of such excess payment is between 01/07/1983 to 30/06/2007.

3. Shri Ankit Chopra, learned counsel for the petitioner advanced singular contention. He submits that the salary paid to the petitioner's husband was in accordance with law. It is nobody's case that petitioner's husband got excess payment because of any misrepresentation on his part. In this view of the matter, the recovery is impermissible in the light of recent judgment of Apex Court in 2022 SCC OnLine SC 536 (Thomas Daniel v. State of Kerala

and others).

4. The prayer is opposed by Shri Tarun Sengar, learned Panel Lawyer on the basis of return filed.

5. Parties confined their arguments to the extent indicated above.

6. In the return, it is not the stand of the department that petitioner's husband received excess salary on the basis of any misrepresentation. The Apex Court has drawn curtains on this issue in the case of State of Punjab v. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334. The ratio decidendi of Rafiq Masih (supra) is recently followed by the Supreme Court in Thomas Daniel (supra). Para-13 of judgment of Thomas Daniel (supra) is worth quoting :-

"13. In State of Punjab v. Rafiq Masih (White Washer) 4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary Signature Not Verified Signed by: MANJU Signing time:

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employees from such recovery. It was held thus : "8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

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18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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. A plain reading of principles laid down in the aforesaid case Signature Not Verified Signed by: MANJU Signing time:

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makes it clear that impugned recovery is impermissible as per (i) & (v).

8. Resultantly, the petition is allowed. The action of respondents in deciding to recover the alleged excess payment is disapproved and is hereby quashed. The respondents shall pay the pension and retiral dues to the petitioner in accordance with law but they shall not be entitled to recover the amount of Rs.1,63,314/- with interest.

9. If aforesaid amount is already recovered, it shall be returned to the petitioner within 90 days from the date of production of copy of this order, failing which it will carry 6% interest till the date of actual payment.

10. The petition is allowed to the extent indicated above.

(SUJOY PAUL) JUDGE manju

Signature Not Verified Signed by: MANJU Signing time:

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