Madhya Pradesh High Court
Jai Prakash Khare vs Principal Secretary Public Health ... on 6 August, 2024
1 WP-26353-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 6 th OF AUGUST, 2024
WRIT PETITION No. 26353 of 2022
JAI PRAKASH KHARE
Versus
PRINCIPAL SECRETARY PUBLIC HEALTH ENGINEERING
DEPARTMENT AND OTHERS
Appearance:
Shri Rajesh Soni - Advocate for the petitioner.
Shri S.S. Chouhan - GA for the respondents/State.
ORDER
Petitioner has approached this Court assailing the order dated
08.09.2022 passed by Executive Engineer Public Health and Engineering
Department Division Khurai, District Sagar whereby recovery was initiated
against the petitioner on the ground that excess amount paid to the petitioner
to the tune of Rs.7,79,371/- on account of wrong pay fixation and total
recoverable amount including interest, was fixed Rs.8,99,789/-.
2. Learned counsel for the petitioner submits that the petitioner was
originally posted on 01.10.1983 as Daily Rated Mechanic and thereafter the
services were regularized under the Work Charged Establishment, he was
granted pay-Scale of 1150-1800 on 02.04.1988. However, as per the
Department the Pay-Scale ought to have been granted of Rs.950-1530 and
due to wrong pay fixation a recovery order was passed by the Executive
Engineer on 08.09.2022 after superannuation of petitioner. The petitioner
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retired on 31.03.2022 thereafter this recovery order has been issued. He
further submits that as the petitioner was working as Head Pump Mechanic,
no such amount can be recovered from the petitioner as the petitioner was
not at fault for wrong pay fixation and the same was not fixed upon any
misrepresentation of the petitioner. He further submits that entire gratuity
amount of the petitioner has been withheld for the purpose of a recovery of
the amount.
3. Learned counsel for the petitioner submits that as per Section 14 of the
Payment of Gratuity Act, 1972 the amount of gratuity cannot be withheld
and no recovery can be effected from the amount of gratuity. He further
submits that as the petitioner was Class-III employee and the excess amount
was paid to the petitioner from 1988 to 1998 therefore excess payment
cannot be recovered after such a long period therefore, he prays for
quashment of the order of recovery.
4. Learned counsel for the petitioner relied upon the judgment delivered by
the Coordinate Bench in the matter of Ramavtar Singh vs. State of MP and
Another 2019 (1) MPLJ 658 wherein Coordinate Bench has held that no
amount can be recovered or adjusted from the amount of gratuity. He further
relied on the judgment of Coordinate Bench in the matter of Jagjit Singh Vs.
State of MP and Others on 28.03.2019 wherein in the almost similar
circumstances, the order of recovery was quashed and direction was issued to
return the amount already recovered along with interest.
5. Learned Government Advocate appearing on behalf of State supported
the order passed by Executive Engineer on the ground that due to wrong pay
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fixation , the excess amount was paid to the petitioner and the same can be
recovered from the petitioner along with the interest and no illegality or
irregularity committed by the Executive Engineer in passing such recovery
order.
6. This is trite law that retiral dues of a government servant are not bounty.
Retiral dues are earned by him by rendering long services to the department.
Retiral dues including gratuity are held to be "Property" within the meaning
of Article 300-A of the Constitution. In catena of judgments, it was held that
the retiral dues can be withheld only if a statutory provision is there which
permits the Department to withhold/withdraw or stop pension placed retiral
dues. No recovery can be made out of gratuity payable to the government
servant. A plain reading of Rules of 65 of Pension Rules makes it clear that
the law makers have decided to permit a Department to recover or adjust
"ascertainable government dues" and no other amount is recoverable or
adjustable from the retiral dues. In the present matter, the amount of gratuity
was adjusted against the recoverable amount due to wrong fixation which is
not permissible.
7. Supreme Court in the matter of State of Punjab and Ors. vs. Rafiq
Masih( White Washers) and Ors reported in (2015) 4 SCC 334 has issued the
Guidelines in respect of recoveries permissible from the retired Govt.
servant. The Guidelines reads as under:-
"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
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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."
8. In view of the Guidelines issued by Supreme Court, an action of the
State ordering recovery from an employee after his retirement is not
permissible. As the recovery would have a harsh and arbitrary effect on the
employee. It is not the case of the Department that the petitioner was
responsible for wrong fixation or the excess amount was paid to the
petitioner due to his misrepresentation or fraud.
9. Consequently, in view of the above legal position, the impugned order
dated 08.09.2022 passed by Executive Engineer PHE, Khurai, District Sagar
is hereby quashed.
10. The amount already recovered by the Department be paid to the
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petitioner, within a period of 3 months from the date of receipt of certified
copy along with interest @7% per annum.
11. With the above extent, present petition is allowed.
(VINAY SARAF)
JUDGE
Akm
