Mawasilal Yadav vs The State Of Madhya Pradesh
2023 Latest Caselaw 16863 MP

                                                            1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                              ON THE 11 th OF OCTOBER, 2023
                                             WRIT PETITION No. 18832 of 2017

                           BETWEEN:-
                           MAWASILAL YADAV S/O SHRI BUDDU, AGED ABOUT 62
                           YEARS, OCCUPATION: RETIRED EMPLOYEE R/O GRAM
                           DWARA POST KALIWARA KHURD TEH. AND DIST.
                           KATNI (MADHYA PRADESH)

                                                                                       .....PETITIONER
                           (BY MR. MANOJ CHANDURKER - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THR. ITS
                                 SECRETARY PUBLIC HEALTH ENGINEERING
                                 DEPARTMENT MANTRALAYA, BHOPAL (MADHYA
                                 PRADESH)

                           2.    CHIEF ENGINEER PUBLIC HEALTH ENGINEERING
                                 D E PA R T M E N T DAMOH NAKA   JABALPUR
                                 (MADHYA PRADESH)

                           3.    EXECUTIVE     ENGINEER   PUBLIC HEALTH
                                 ENGINEERING DEPARTMENT PROJECT DIVISION
                                 DISTT. KATNI (MADHYA PRADESH)

                           4.    DISTRICT PENSION        OFFICER     KATNI KATNI
                                 (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY MR. H.K. GOHLANI - PANEL LAWYER)

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

This petition under Article 226 of Constitution of India has been filed against orders dated 18.09.2015 and 29.12.2016 passed by respondent nos.3 Signature Not Verified Signed by: JULIE SINGH Signing time: 13-10-2023 18:32:08

and 4 respectively directing for recovery of Rs.55,582/- on ground of excess payment on account of erroneous fixation.

2. It is submitted by counsel for petitioner that petitioner is a Class-IV employee and he is to retire w.e.f. 30.09.2015. The aforesaid amount was deducted from his gratuity amount. Petitioner had approached this Court by filing W.P. No.8622 of 2016 which was disposed of by this Court by order 12.10.2016 with a direction to the respondents to decide the representation.

3. It is submitted that now by order dated 29.12.2016, representation has been rejected by holding that excess payment made to petitioner was a public money. It is submitted that the Supreme Court in the case of State of Punjab

and Others Vs. Rafiq Masih (Whitewasher) and Others reported in (2015) 4 SCC 334 has held as under:-

"18. It is not possible to postulate all situations o f hardship, which would govern employees o n t h e is s ue o f 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 f e w 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 Signature Not Verified Signed by: JULIE SINGH Signing time: 13-10-2023 18:32:08

recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has b een 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 a t the conclusion, that recovery if made fro m t h e employee, would be iniquitous o r hars h or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

4. Accordingly, it is submitted that respondents were wrong in effecting recovery of Rs.55,582/-.

5. The respondents have filed their return and it is not the case of the respondents that any undertaking was ever given by the petitioner. It is case of respondents that because of wrong fixation of pay in the year 1989 an excess amount of Rs.55,582/- was paid which is recoverable even otherwise as per Rule 65 of M.P. Civil Services (Pension Rules), 1976.

6. Heard learned counsel for the parties.

7. It is case of respondents that erroneous fixation of pay was done in the year 1989 as a result, the petitioner got an amount of Rs.55,582/- in excess of his entitlement.

8. In the light of judgment passed by Supreme Court in the case of Rafiq Masih (Supra) it is clear that recovery of aforesaid amount from the gratuity of the petitioner is not permissible. Accordingly, this petition is allowed and the orders dated 18.09.2015 and 29.12.2016 by which recovery of Rs.55,582/- was directed are hereby quashed.

Signature Not Verified Signed by: JULIE SINGH Signing time: 13-10-2023 18:32:08

9. The respondents are directed to release the amount within a period of one month failing which, the amount shall carry an interest of 6 % per annum till the final payment is made.

10. With aforesaid observation, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE julie

Signature Not Verified Signed by: JULIE SINGH Signing time: 13-10-2023 18:32:08