Madhya Pradesh High Court
Ramswaroop Chaturvedi vs The State Of Madhya Pradesh on 6 October, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF OCTOBER, 2023
WRIT PETITION No. 20555 of 2016
BETWEEN:-
1. RAMSWAROOP CHATURVEDI S/O SHRI
SHANKAR LAL CHATURVEDI, AGED
ABOUT 61 YEARS, SHANTI NAGAR COLONY
CHHATARPUR (MADHYA PRADESH)
2. ROOPKISHORE TRIVEDI S/O RAMPYARE
TRIVEDI, AGED ABOUT 60 YEARS,
SEVAGRAM KHAJRAHO (MADHYA
PRADESH)
3. SUKHDEEN PRAJAPATI S/O BAHADUR
PRAJAPATI, AGED ABOUT 60 YEARS, VILL.
AND POST DHAMORA, (MADHYA
PRADESH)
4. SHYAM SUNDAR SHARMA S/O HARDAS
SHARMA, AGED ABOUT 62 YEARS, VILL.
AND POST SATAI TEH.AND DIST. SATAI
(MADHYA PRADESH)
5. RAMKRIPAL ARJARIYA S/O NIRATI LAL
ARJARIYA, AGED ABOUT 60 YEARS, VILL.
AND POST CHANDRA NAGAR, (MADHYA
PRADESH)
6. NOOR AHMAD KHAN S/O ZAHOOR AHMED
KHAN, AGED ABOUT 61 YEARS, WARD NO.
13, SUBHASH WARD, BIJAWAR (MADHYA
PRADESH)
7. DAYARAM UPADHYAYA S/O GIRDHARILAL
UPADHYAYA, AGED ABOUT 60 YEARS,
WARD NO 1 MAHARAJPUR (MADHYA
PRADESH)
8. DWARKA PRASAD DIXIT S/O BABULAL
2
DIXIT, AGED ABOUT 62 YEARS, COMPANY
BAGH ISHANAGAR CHOURAHA,
NOWGAON (MADHYA PRADESH)
.....PETITIONERS
(BY MS.CHHOTI KUSHRAM - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH THE PRINCIPAL SECRETARY
DEPARTMENT OF PANCHAYAT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. CHIEF EXECUTIVE OFFICER JILA
PANCHAYAT CHHATARPUR
CHHATARPUR, (MADHYA PRADESH)
3. DISTRICT TREASURY AND PENSION
OFFICER DIRECTORATE OF TREASURY
AND ACCOUNTS CHHATARPUR, (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
1. This petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs :-
i) That the amounts which have been recovered from retiral
dues of the petitioners be paid to the petitioners with interest.
ii) That entire record pertaining to case be called from office of
respondents.
iii) Any other relief which deems fit and proper may also be
awarded including cost of the litigation.
2. It is submitted by counsel for the petitioner that this Court by a
separate order passed today in the case of Sukhchen Napit Vs. State
of Madhya Pradesh and others, in W.P.No.12568/2016 has quashed
the recovery and the present case is also duly covered by the said
order.
3. Counsel for the respondents could not point out any distinguishable
feature.
4. This Court by a separate order passed today in the case of Sukhchen
Napit (supra) has held as under :-
1. This petition under Article 226 of the Constitution
of India has been filed seeking the following reliefs :-
(i) Writ in nature of mandamus be issued
commanding the respondents particularly
respondent no. 2 to refund an amount of
Rs.1,41,629/- from the petitioner along with the
interest which had been recovered against the
settled principle of law as held by the Hon'ble
Court Apex Court.
(ii) Any other relief which this Hon'ble Court
deems fit and proper.
2. It is the case of the petitioner that petitioner was
working on Class-3 post carrying designation of
Panchayat Inspector and petitioner stood retired w.e.f.
afternoon of 29.2.2016. Thereafter, an amount of
gratuity was calculated as Rs.6,92,347/- and after
deducting an amount of Rs.1,41,629/-, remaining
amount has been paid. Thus, the entire controversy
involved in the present case is with regard to
deduction of Rs.1,41,629/- made by the respondents.
3. It is the case of the petitioner that petitioner was
holding a Class-3 post and re-fixation of his salary
was done without any misrepresentation on his part
and therefore, in the light of the judgment passed by
the Supreme Court in the case of State of Punjab &
Others Vs. Rafiq Masih (Whitewasher) and others
reported in (2015) 4 SCC 334, such recovery after the
retirement of the petitioner cannot be affected.
4. Per contra, the respondents have filed their return
and they have submitted that recovery of
Rs.1,41,629/- has been made from his gratuity amount
only after seeking undertaking from the petitioner
which was a voluntary act of the petitioner and
accordingly, it is prayed that the recovery was rightly
done in the light of the law laid down by the Supreme
court in the case of High Court of Punjab and
Haryana and others Vs. Jagdev Singh reported in
(2016) 14 SCC 267.
5. The undisputed facts are that excess payment was
made without any misrepresentation on the part of the
petitioner. It is submitted by counsel for respondents
that the recovery was initiated on an objection raised
by the Joint Director, Treasury and Accounts.
Accordingly, it is submitted that as recovery of
Rs.1,41,629/- was directed by the Joint Director,
Treasury and Accounts. The petitioner was directed to
deposit the amount so that his pension case may be
finalized. In response to the said letter, petitioner had
given his consent for recovery of excess amount from
the gratuity amount, therefore, after deducting an
amount of Rs.1,41,629/- from his gratuity, remaining
amount was paid.
6. Heard the counsel for the parties.
7. The crux of the matter is as to whether the
recovery of Rs.1,41,629/- from the gratuity amount of
petitioner was made on the voluntary undertaking
given by petitioner or it was under coercion or threat.
8. The respondents have filed a copy of the letter
dated 28.4.2016 Annexure-R/1 which reads as under
:-
dk;kZy; tuin iapk;r cYnsox< ftyk Vhdex<+ ¼e0iz0½
Ø0@LFkk@t-iapk@2016@339 fnukad% 28-04-2016
izfr]
Jh lq[kpSu ukfir
lsokfuo`r [k.M iapk;r vf/kdkjh
tuin iapk;r cYnsox<+
fo"k;%&la;qDr lapkyd dks"k ,oa ys[kk lkxj laHkkx lkxj }kjk
mBkbZ xbZ vkifRr ds QyLo:Ik rS;kj fd;s x;s x.kuk i=d ds
vk/kkj ij olwyh dh jkf'k tek djus ds laca/k esaA
mijksDr fo"k;kUrxZr ys[k gS fd vkidh lsok iqfLrdk
la;qDr lapkyd dks"k ,oa ys[kk lkxj laHkkx lkxj ls lR;kiu
mijkar bl dk;kZy; dks okfil izkIr gqbZ ijh{k.k esa mBkbZ xbZ
vkifRr;ksa ds vk/kkj ij vkidk iqu% osru fu/kkZj.k dj x.kuk i=d
rS;kj fd;k x;k] ftlds vk/kkj ij vkids Åij 14]1629@& ¼,d
yk[k bdrkyhl gtkj NS% lkS murhl½ dh olwyh fudy jgh gSA
mDr jkf'k vki pkyku }kjk tek dj pkyku dh ,d izfr bl
dk;kZy; dks miyC/k djk;s rkfd vkids is'a ku izdj.k dk dks"kky;
Vhdex< ls fujkdj.k djk;k tk ldsA
eq[; dk;Zikyu vf/kdkjh
tuin iapk;r cYnsox<+
9. From the last line of this letter it is clear that
petitioner was given threat to deposit an amount of
Rs.1,41,629/- so that his pension case can be finalized
from the Treasury office, Tikamgarh. Thus, a clear
threat was given by the respondents that the amount
should be deposited before finalization of the pension
case of the petitioner.
10. Therefore, under these circumstances if the
petitioner had given his consent for recovery of excess
amount from his gratuity then it cannot be said that it
was a voluntary consent given by the petitioner. The
petitioner was placed in a situation where he was left
with no other option. On one hand, the petitioner was
being deprived of amount of Rs.1,41,629/- with a
clear threat that till the amount is deposited his
pension case shall not be finalized and on other hand,
the petitioner had to contest the case without getting
his retiral dues. Under these compelling
circumstances, the petitioner took a wiser decision to
give consent for recovery from his gratuity amount.
Therefore, it cannot be said that the consent given by
the petitioner was out of free will or it was a free
consent.
11. Section 90 of IPC reads as under :-
90. Consent known to be given under fear or
misconception - A consent is not such a
consent as it intended by any section of this
code, if the consent is given by a person under
fear of injury, or under a misconception of fact,
and if the person doing the act knows, or has
reason to believe, that the consent was given in
consequent of such fear or misconception.
12. Any consent given under fear or misconception
cannot be said to be a free consent. Thus, it is clear
that the respondents had obtained the consent from the
petitioner by extending threat that until and unless
Rs.1,41,629/- is deposited by the petitioner, his
pension case shall not be finalized. Therefore, it
cannot be said that the consent given by the petitioner
was a free consent. Under these circumstances,
consent given by the petitioner on 2.5.2016 cannot be
relied upon against the petitioner for applying the law
laid down by the Supreme Court in the case of
Jagdev Singh (supra). Accordingly, it is held that
recovery of Rs.1,41,629/- was not only contrary to the
judgment passed by the Supreme Court in the case of
Rafiq Masih (supra) but it was under coercive threat
and fear. Therefore, recovery of Rs.1,41,629/- is
hereby quashed. The respondents are directed to pay
the amount of Rs.1,41,629/- within a period of one
month from today, failing which, it shall carry interest
@6% from the date of recovery till final payment.
13. With aforesaid observations, petition is finally
disposed of.
5. Accordingly, this petition is also disposed of in the terms and
conditions of the order in the case of Sukhchen Napit (supra) and the
recovery of Rs.1,70,768/- from petitioner no.1, Rs.10,534/- from
petitioner no.2, Rs.91,799/- from petitioner no.3, Rs.81,583/- from
petitioner no.4, Rs.1,40,512/- from petitioner no.5, Rs.87,428/- from
petitioner no.6, Rs.1,16,484/- from petitioner no.7 and Rs.1,61,546/-
from petitioner no.8 is hereby quashed.
6. The respondents are directed to refund the amount within a period of
one month from today, failing which, it shall carry interest @6% from
the date of recovery till final payment.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2023.10.10 18:58:43
+05'30'
HS
