Sudhir Kumar Patil vs The State Of Madhya Pradesh
2024 Latest Caselaw 3418 MP

Madhya Pradesh High Court

Sudhir Kumar Patil vs The State Of Madhya Pradesh on 6 February, 2024

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

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IN             THE                   HIGH                     COURT OF                                      MADHYA PRADESH
                                                              AT JABALPUR
                                                                        BEFORE
                          HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                         ON THE 06th OF FEBRUARY, 2024
                                         WRIT PETITION No.28625 of 2021

BETWEEN:-

SUDHIR KUMAR PATIL S/O LATE SHRI RAMJI RAO
PATIL AGED ABOUT 62 YEARS OCCUPATION RETIRED
SUB ENGINEER O/O EXECUTIVE ENGINEERING
PUBLIC HEALTH ENGINEERING DIVISION BALAGHAT
R/O WARD NO.29 SHRI VINAYAK RAO HANUMAN
CHOWK STATION ROAD BALAGHAT, DISTRICT
BALAGHAT (MP)
                                                                                                                                      .....PETITIONER
(BY SHRI DINESH KUMAR UPADHYAY - ADVOCATE)

AND

1.                       THE STATE OF MADHYA PRADESH,
                         THROUGH     PRINCIPAL    SECRETARY,
                         DEPARTMENT    OF   PUBLIC   HEALTH
                         ENGINEERING MANTRALAYA, VALLABH
                         BHAWAN, BHOPAL, MP
2.                       ENGINEER IN CHIEF, PUBLIC HEALTH
                         ENGINEERING BHOPAL, MP
3.                       EXECUTIVE   ENGINEERING                                                          PUBLIC
                         HEALTH    ENGINEERING                                                           DIVISION
                         BALAGHAT
4.                       DISTRICT TREASURY OFFICER, DISTRICT
                         BALAGHAT
                                                                                                                                 ......RESPONDENTS
(BY SHRI PUNIT SHROTI - GOVERNMENT ADVOCATE)
..............................................................................................................................................................................

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

Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, at their joint request, it is heard finally.

2. Learned counsel for the petitioner submits that this petition is directed against the recovery made by the respondents/authorities whereby they have recovered an amount Rs.07,05,266/- from the retiral dues of the petitioner. He submits that the said recovery was in respect of some excess payment made to the petitioner while he was in service. He further submits that as per the respondents, the actual excess payment made to the petitioner was of Rs.04,06,805/- over which they have levied penal interest @ Rs.02,98,461/- and as such, the total amount of recovery had come to Rs.07,05,266/-.

3. Learned counsel for the petitioner submits that the petitioner got retired from service w.e.f. 30.06.2021 whereas the amount which is said to have been paid in excess was relating to the period between 1995 to 2015. According to him, it is informed to the petitioner that some increment was wrongly paid to him. However, he submits that in the said mistake committed by the respondents, there was no false representation made by the petitioner. It is also submitted that during the whole service tenure of the petitioner, he was never informed about the said mistake and even at the time of issuing the PPO, the said mistake was not pointed out by the respondents. It is further submitted that the service book of the petitioner was sent to the Joint Director (Treasury & Accounts) on 04.07.2017 for getting approval of payment of Seventh Pay Commission, but even during that period, the mistake committed by the respondents was not pointed out

by them.

4. Learned counsel for the petitioner further submits that though the gratuity amount of the petitioner was of Rs.16,70,592/- but the respondents after deducting the amount of recovery i.e. Rs.07,05,266/- had only made the payment of Rs.09,65,326/- to him. He submits that looking to the facts and circumstances of the case, the recovery made by the respondents is otherwise illegal and cannot be made from the petitioner. In support of his contention, he has placed reliance upon a case of Supreme Court reported in (2015) 4 SCC 334 [State of Punjab and others Vs. Rafiq Masih (White Washer) and others] and also in the orders passed by the coordinate Bench of this Court on 09.12.2021 in W.P. No.12076 of 2017 [Chandradutta Shukla Vs. The State of Madhya Pradesh and others] and also on 06.10.2023 in W.P. No.12568 of 2016 [Sukhchen Napit Vs. The State of Madhya Pradesh and others] in which relying upon the case of Rafiq Masih (supra), the Court has quashed the recovery.

5. On the other hand, learned Government Advocate has relied upon the reply filed by the respondents and submitted that in view of the law laid down by the Supreme Court in the case reported in 2012 (8) 417 [Chandi Prasad Unyal Vs. State of Uttarakhand], the amount which was paid in excess to the petitioner can be recovered by the respondents because ultimately it is a loss caused to the Government. It is also submitted that the case of Chandi Prasad Unyal (supra) was decided prior to the decision of Rafiq Masih (supra) and as such, in view of the law laid down by the Larger Bench of this Court in a case reported in 2003 (1) MPHT 226 [Jabalpur Bus Operator Association Vs. State of M.P.], the law laid down in the case of Chandi Prasad Unyal (supra) would prevail. He has also submitted that at the time of retirement, the petitioner

had given an undertaking saying that if any excess payment is made to him, then the same can be recovered and, therefore, while recovering the amount paid in excess, nothing wrong has been committed by the respondents. According to him, the petition is without any substance and liable to be dismissed.

6. Considering the arguments advanced by learned counsel for the parties, perusal of record and also the judgments on which parties have relied upon, this Court is of the opinion that in the case of Rafiq Masih (supra), the Supreme Court in paragraph-18 of its order has laid down certain situation under which the recovery from the employee would be impermissible. For ready reference, paragraph-18 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 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 is cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even through 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.

In view of the above preposition, it is clear that situation No.(ii) is very specific providing that recovery from retired employee cannot be made.

Likewise, situation No.(v) also attracts that if recovery is harsh or arbitrary to an extent, then that cannot be made from the employee and, therefore, looking to the facts and circumstances of the present case, I am of the opinion that recovery from the petitioner is impermissible. However, this aspect has also been taken note of by the co-ordinate Bench of this Court in the cases of Sukhchen Napit (supra) and Chandradutta Shukla (supra).

7. So far as the undertaking given by the petitioner at the time of his retirement is concerned, the same cannot be considered to be a proper undertaking for the reason that it has been given under an impression or pressure that if undertaking is not given, then his whole retiral dues shall be withheld. As is clear from the record that neither there was any misrepresentation on the part of the petitioner nor the fact in respect of the irregularity committed by the respondents in making the excess payment to the petitioner or about the impugned recovery had ever been informed to him while he was in service. Thus, in view of the law laid down by the Supreme Court in the case of Rafiq Masih (supra) so also the co-ordinate Bench of this Court in Sukhchen Napit (supra) and Chandradutta Shukla (supra), I am of the opinion that for the irregularity committed by the respondents in making excess payment to the petitioner, he cannot be held responsible nor any recovery to that extent can be made from him.

8. Accordingly, the impugned recovery whereby the respondents/authorities have recovered an amount Rs.07,05,266/- from the retiral dues of the petitioner is hereby quashed. The respondents are therefore directed to refund the said amount to the petitioner within a period of 60 days from the date of receipt of copy of this order along with interest @6% from the date of recovery till its actual payment is made to

the petitioner.

9. Resultantly, the petition filed by the petitioner stands allowed.

(SANJAY DWIVEDI) JUDGE dm DEVASHISH MISHRA 2024.02.09 10:29:29 +05'30'