Madhya Pradesh High Court
Mohanlal vs The State Of Madhya Pradesh on 7 August, 2024
Author: Pranay Verma
Bench: Pranay Verma
1 WP-21357-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 7 th OF AUGUST, 2024
WRIT PETITION No. 21357 of 2024
MOHANLAL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M.K. Choudhary, learned counsel for the petitioner.
Ms. Mradula Sen, P.L. for respondents/State.
ORDER
1 . This petition under Article 226 of the Constitution of India, has
been preferred by the petitioner challenging the order dated 14/3/2024 passed
by respondent No.2 whereby a sum of Rs.1,04,027/- has been directed to be
deducted and recovered from his gratuity amount.
2. The petitioner has retired on 30/6/2019 from a Class IV post. From
the impugned order it is apparent that recovery has been directed to be made
from the petitioner for the fact that he was given certain additional
allowances for his salary on account of wrong pay fixation.
3. The Full Bench of this Court at Principal Seat, Jabalpur in identical
matters has quashed such recovery orders by judgment dated 06.03.2024
passed in Writ Appeal No.815 of 2017 [State of Madhya Pradesh and
Another vs. Jagdish Prasad Dubey and Another] and connected writ petitions
reported in 2024 SCC online MP 1567 . It has been held in paragraph No.35
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as under:
"Answers to the questions referred
35.(a) Question No.1 is answered by holding
that recovery can be effected from the
pensionary benefits or from the salary based
on the undertaking or the indemnity bond
given by the employee before the grant of
benefit of pay refixation. The question of
hardship of a Government servant has to be
taken note of in pursuance to the judgment
passed by the Larger Bench of the Hon'ble
Supreme Court in the case of Syed Abdul
Qadir (supra). The time period as fixed in the
case of Rafiq Masih (supra) reported in
(2015) 4 SCC 334 requires to be
followed.Conversely an undertaking given at
the stage of payment of retiral dues with
reference to the refixation of pay or
increments donedecades ago cannot be
enforced.
(b) Question No.2 is answered by holding
that recovery can be made towards the excess
payment made in terms of Rules 65 and 66 of
the Rules of 1976 provided that the entire
procedures as contemplated in Chapter VIII
of the Rules of 1976 are followed by the
employer. However, no recovery can be
made in pursuance to Rule 65 of the Rules of
1976 towards revision of pay which has been
extended to a Government servant much
earlier. In such cases, recovery can be made
in terms of the answer to Question No.1.
(c) Question No.3 is answered by holding that
the undertaking given by the employee at the
time of grant of financial benefits on account
of refixation of pay is a forced undertaking
and is therefore not enforceable in the light of
the judgment of the Hon'ble Supreme Court
in the case of Central Inland Water Transport
Corporation Limited and Another vs. Brojo
Nath Ganguly and Another, reported in
(1986) 3 SCC 136 unless the undertaking is
given voluntarily."
4. Even if any undertaking had been furnished by the petitioner at the
time of his pay fixation and payment of allowances to him, then also in light
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of the aforesaid decision the case of the petitioner is required to be
considered in the light of the decision of the Apex Court in State of Punjab
& Ors. V/s. Rafiq Masih (White Washer) (2015) 4 SCC 334 in which it has
been held as under :-
"18. While it is not possible to postulate all
situations of hardships where payments have
mistakenly been made by an employer, in the
following situations, a recovery by the
employer 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
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."
5. In the present case also the recovery is being made from a Class IV
employee and after his retirement and in fact after a period of 5 years
therefrom. It does not appear that the petitioner was in any manner
responsible for his wrong pay fixation or payment of extra allowances to
him. Thus undertaking if any hence does not help the respondents in any
manner.
6 . As a result of the aforesaid discussion, the impugned order dated
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14/3/2024 (Annexure P/1) cannot be sustained and is hereby quashed. In
view of the quashment of the recovery order, the respondents are directed to
pay the gratuity amount to the petitioner within a period of two months from
the date of receipt of certified copy of this order in case there is no legal
impediment for the same.
7. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
SS/-
