Madan Mohan Chourasia vs The State Of Madhya Pradesh
2023 Latest Caselaw 18131 MP

                                                          1
                           IN    THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                       BEFORE
                                       HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                             ON THE 31 st OF OCTOBER, 2023
                                            WRIT PETITION No. 11004 of 2018

                          BETWEEN:-
                          MADAN MOHAN CHOURASIA S/O LAE SHRI OMKAR
                          PRASAD CHOURASIA, AGED ABOUT 61 YEARS,
                          OCCUPATION: RETD. DRIVER R/O. 3970/K, SAMTA
                          NAGAR ADHARTAL (MADHYA PRADESH)

                                                                                     .....PETITIONER
                          (BY SHRI M.P. SHUKLA - ADVOCATE )

                          AND
                          1.    THE STATE OF MADHYA PRADESH THR
                                PRINCIPAL   SECRETARY  MINISTY  OF
                                AGRICULTURE VALLABH BHAWAN, BHOPAL
                                (MADHYA PRADESH)

                          2.    THE DIRECTOR FARMER WELFARE AND
                                AGRICULTURE    DEPARTMENT VINDHYACHAL
                                BHAWAN, BHOPAL (MADHYA PRADESH)

                          3.    THE JOINT DIRECTOR FARMER WELFARE AND
                                AGRICULTURE         DEPARTMENT JABALPUR
                                DIVISION, (MADHYA PRADESH)

                          4.    THE DEPUTY DIRECTOR FARMER WELFARE AND
                                AGRICULTURE    DEPARTMENT COLLECTORATE
                                PARISAR, (MADHYA PRADESH)

                          5.    THE DISTRICT PENSION OFFICER JABALPUR
                                DISTT-JABALPUR (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                          (BY SHRI BRAJENDRA KUMAR KUSHWAHA - PANEL LAWYER)

                                This petition coming on for admission this day, th e court passed the
                          following:
Signature Not Verified
                                                           ORDER

Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

This is a petition by the petitioner assailing the recovery which was carried out on the strength of the Pension Payment Order (P.P.O) which is contained in Annexure-P/4.

2. Learned counsel for the petitioner contends that the petitioner herein who was working as Driver with the respondent was eventually superannuated w.e.f. 31.12.2017. After retirement of the petitioner, a PPO order has been issued and by the said PPO order, it was first time informed to the petitioner that an amount of Rs.79,135/- has been recovered from the petitioner. Thus, assailing the recovery which is contained in Annexure-P/4, this petition is filed.

3. Learned counsel for the petitioner contends that petition being a

Class-IV employee could not have been subjected to recovery after the retirement, in view of the law laid down by the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih, (2015) 4 SCC 334. It is contended by the counsel that the petitioner was not issued any show-cause notice and was not granted any opportunity of hearing before recovering the amount, which is mentioned in PPO order (Annexure-P/4). It is the further contention of the counsel that the petitioner did not furnish any undertaking at the time of availing the benefit of annual increment which according to respondent was not payable on 01.07.2006.

4. It is also contended by the counsel that the undertaking which has been brought on record as Annexure-R/3 to the return, pertains to the fixation as per revision of pay w.e.f. 01.01.2016 whereas the recovery in question pertains to excess amount which was paid to the petitioner wayback in the year 2006. Therefore, the undertaking which is contained in Annexure-R/3 has no nexus with the benefits which were extended to the petitioner in the year, 2006.

Signature Not Verified It is further contention of the counsel that the indemnity bond brought on Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

record at page no.11 of the return was also executed, just before attaining the age of superannuation and even the said indemnity bond also has no connection or relevance with the extension of benefit of annual increment in the year, 2006. Thus, it is contended by the counsel that the petitioner was not guilty of any misrepresentation while availing the benefit of increment and thus, the recovery could not have been ordered.

5. Per contra, learned counsel for the respondent submits that in the present case, in terms of the objection raised by the Treasury it was noticed that an annual increment which was not payable on 01.07.2006 was paid to the petitioner, whereas the same was not payable on account of "leave without pay" from 12.02.2006 to 23.02.2006. The said objection has been brought on record as Annexure-R/1. Thus, while taking into consideration the undertaking as well as indemnity bond executed by the petitioner, in the light of law laid down by the Apex Court in the case of State of Punjab & Haryana and Ors. vs. Jagdev Singh (2016) 14 SCC 267), the amount has been rightly recovered.

6. Learned counsel for the respondent also submitted that the Apex Court in the case of Chandi Prasad Unyal vs. State of Uttarakhand (2012 8 SCC 417) has also considered the effect of recovering public money and, therefore, if the payments have been made to an employee even under misconception, are liable to be recovered and the employee is not entitled for

any immunity from recovery of such an amount. Thus counsel submits that the petition deserves to be dismissed.

7. Parties have not pressed or argued any other points.

8. Heard the submissions and perused the record.

9. In the present case, the petitioner was working as Driver was Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

superannuated w.e.f 31.12.2017 and the recovery has been carried out after the retirement of the petitioner on the strength of PPO order which is contained in Annexure-P/4. In the present case, in terms of the return filed by the respondent, the reasons for recovery have been detailed in paragraph 5 thereof and the paragraph 5 of the return is reproduced herein:-

That it is submitted that, the petitioner's case prior to his retirement was sent for verification to the Treasury and on examining the service records of the petitioner, the Treasury raised an objection with regard to wrong fixation of pay. The objection was mainly with regard to grant of annual increment which was not payable on 01.07.2006 on account of "Leave Without Pay" from 12.02.2006 to 23.02.2006.

10. A perusal of the aforesaid paragraph of the return reflects that undisputedly, the recovery has been ordered in view of the objection raised by the Treasury as regards extension of benefit of annual increment which was not payable to the petitioner on 01.07.2006. Accordingly, in view of the said objection, at the time of issuance of PPO contained in Annxure-P/4, the recovery of aforesaid amount has been carried out. The undertaking which has been brought on record by the respondent vide Annexuer-R/3 reflects that the same pertains to the revision of fixation of pay in terms of the Revision of Pay Rules w.e.f 01.01.2016. The undertaking, nowhere refers to the benefit of annual increment which was extended to the petitioner in the year, 2006. The indemnity bond which has also been brought on record is dated 22.07.2017 and the same was submitted by the petitioner just at the eve of his service career, as Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

eventually he was superannuated on 31.12.2017.

11. The Apex Court in the case of Jagdev Singh (supra) held in paragraph 11 as under:-

The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

12. A perusal of paragraph 11 of the judgment of the Apex Court reflects that in the case of Jagdev Singh (supra), the Apex Court observed that if an employee is clearly placed on notice that if any payment found to have been made in excess, the same would be required to be refunded and such recovery cannot be disputed.

13. Therefore, in view of the law laid down by Apex Court in the case of Jagdev Singh (supra), if undertaking brought on record by the respondent as Annexure-R/3 is perused, the same would reveal that the petitioner herein did not execute any undertaking in the year, 2006 when the benefit of annual increment was granted to the petitioner. The indemnity bond as well, was executed in the month of July, 2017, therefore, the same has also no nexus with the annual increment which was granted to the petitioner in the year, 2006.

14. Therefore, in the considered view of this Court, the respondents Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

could not have recovered the said amount which is mentioned in PPO order.

15. This Court in the case of Jagdish Kumar Singh Vs. State of M.P. in WP No.11338/2018 while dealing with the similar identical issue has appreciated the factum of execution of undertaking at the time of availing the benefit. This Court in the case of Jagdish Kumar Singh (supra) has held in paragraph 10 as under:-

"10. In the present case, it is relevant to notice that in the return of the State there is not even a whisper as to whether any undertaking was given by the petitioner at the time when excess payment was made which is a clear indication of the fact that no written undertaking was made by petitioner. In absence of any written undertaking, the respondents are not authorized to make any recovery more so when there is no such

averment by the State that excess payment was made for reasons attributed to the petitioner. Thus, the decision of Rafiq Masih (supra) squarely covers the case of the petitioner and thus the petition is liable to succeed."

16. Again this Court in the case of Manak Lal Sahu v. State of M.P. (W.P. No. 62/2017) has held as under:

"In the present case, the recovery has been proposed after the date of superannuation while issuing Pension Cover Sheet (Annexure-P/1). The recovery as per return of the respondents is consequence of incorrect Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

pay fixation of the petitioner in the scale of pay of Rs. 5200-20200/- w.e.f. 01-01-2006. Along with the return, there is one indemnity bond, which is contained in Annexure-R/1, which is said to be executed on 09-06- 2016. Therefore, undisputedly, the said indemnity bond was executed by the petitioner just before 21 days of his superannuation, as he was superannuated on 30-06- 2016. Annexure-R/2 which is also brought on record, contains an undertaking which is also executed by the employee while seeking extension of retiral dues. There is no document on record to show that at the time of extension of benefit of pay-fixation w.e.f. 01-01-1996 any undertaking or indemnity bond was executed by the petitioner."

17. Therefore, in view of the aforesaid, it is clear that the petitioner did not execute any undertaking and no such undertaking has been brought on record by the respondents and, therefore, the recovery against the petitioner could not have been carried out in view of the law laid down by the Apex Court in the case of Rafiq Masih (supra). The Apex Court in the case of Raifq Masih (supra) has held as under:-

(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 Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

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.

18. In view of the law laid down by the Apex Court in the case of Rafiq Masih (supra), if impugned recovery is subjected to scrutiny, the same would reveal that the respondents were not justified in recovering the amount of Rs.79,135/- from the petitioner under the garb of undertaking as well as indemnity bond which had no nexus with the extension of annual increment in the year, 2006.

19. Accordingly, the impugned recovery carried out on the strength of PPO order contained in Annexure-P/4 dated 27.03.2018 is quashed. The amount so recovered, be refunded to the petitioner within a period of 90 days from the date of production of certified copy of this order, failing which the same shall incur interest @ 6% per annum.

Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM

20. With the aforesaid, the petition stands allowed.

(MANINDER S. BHATTI) JUDGE mn

Signature Not Verified Signed by: MANOJ NAIR Signing time: 11/2/2023 12:52:29 PM