Madhya Pradesh High Court
Smt. Asha Hans vs Department Of Public Health And Family ... on 13 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 13 th OF FEBRUARY, 2024
WRIT PETITION No. 19323 of 2020
BETWEEN:-
SMT. ASHA HANS D/O SHRI GIRJA SHANKAR, AGED
ABOUT 40 YEARS, OCCUPATION: SERVICE,
COMMUNITY HEALTH CENTRE, KALAPIPAL, TEHSIL
KALAPIPAL, DISTRICT SHAJAPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RANJEET SEN - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY DEPARTMENT OF
PUBLIC HEALTH AND FAMILY WELFARE,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. CHIEF MEDICAL AND HEALTH OFFICER
SHAJAPUR, DISTRICT SHAJAPUR (MADHYA
PRADESH)
3. BLOCK MEDICAL AND HEALTH OFFICER
COMMUNITY HEALTH CENTRE KALAPIPAL,
TEHSIL KALAPIPAL, DISTRICT SHAJAPUR
(MADHYA PRADESH)
4. DISTRICT TREASURY OFFICER SHAJAPUR,
DISTRICT SHAJAPUR (MADHYA PRADESH)
5. JOINT DIRECTOR TREASURY, ACCOUNTS AND
PEN S ION DIVISIONAL OFFICE, UJJAIN, DIST.
UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI SHREY RAJ SAXENA - ADDITIONAL ADVOCATE GENERAL)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 15-02-2024
19:12:03
2
following:
ORDER
(1) The petitioner has filed this petition being aggrieved by the order
dated 30.09.2019 (Annexure P/1) whereby the discrepancies in the pay scale at
the time of grant of Kramonnati has been rectified and order for recovery of the
excess amount has been passed.
(2) Inter-alia, the petitioner has assailed the impugned order on the
ground of the judgment passed by Apex Court in the case of State of Punjab
and others Vs. Rafiq Masih (White Washer).
(3) The respondents have filed a reply by submitting that the petitioner
gave an undertaking that if any amount is found to be paid excess to him, the
same shall be recovered from him.
Learned counsel for the petitioner submits that the respondents have filed
an undertaking which was given at the time of grant of benefits of revision of
pay in the year 2009. No such undertaking was taken from the petitioner before
or after grant of Kramonnati. Therefore, the law laid-down by the Apex Court in
the case of State of Punjab and others Vs. Jagdev Singh shall not apply in
this case as the petitioner did not give any undertaking for pay fixation for grant
of first and second time scale.
In similar facts and circumstances, the Co-ordinate Bench of this Court
has allowed the petition No. 6425/2015 dated 13.04.2023. The operative part of
the petition is reproduced as under :-
"Lear ned counsel for the petitioner challenges the
aforesaid recovery on the strength of judgment of Hon'ble the
Supreme Court in the case of State of Punjab and others Vs.
Rafiq Masih (White Washer) etc (2015 (1) MPHT 130 (SC),
wherein it has been held as under:
"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.
(i v ) 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."
Learned counsel has relied upon clauses (ii) and (iii) above to
bolster his submissions. It is submitted that neither during
petitioner's entire service career nor at the time of revision of
payscale any undertaking was ever furnished by the petitioner. That
apart, the entire recovery without any notice and opportunity of
hearing is patently illegal for want of observance of principles of
natural justice. Therefore, the impugned recovery, deserves to be
quashed.
Per contra learned counsel for the respondent contends that
an indemnity bond was submitted by the petitioner (Annexure R/2)
whereunder petitioner has undertaken that any loss or damage or
overpayment in pensionary benefits or otherwise in pay revision, if
discovered, may be recovered from him. The benefit of aforesaid
dictum of the Apex Court cannot be claimed in the light of judgment
of Hon'ble Supreme Court in the case of High Court of Punjab and
Haryana Vs. Jagdev Singh passed in Civil Appeal No. 3500 of 2006
(Annexure R/2), wherein the Hon'ble Supreme Court while
addressing upon similar issue in the light o f Rafiq Masih's case
(Supra) has held that at the time of revision of pay since the
petitioner therein had given an undertaking that any payment found to
be in excess shall be liable to be adjusted, the benefit of aforesaid
judgment cannot be extended under such circumstances. With the
aforesaid submissions, learned Government Advocate submits that
no illegality has been committed while ordering recovery.
In response, learned counsel for the petitioner contends that
judgment of Hon'ble Supreme Court in the case of Jagdev Singh
(Supra) is distinguishable on facts and has no application to factual
matrix in hand, inasmuch as, at the time of extension of benefit of
revised payscale neither any undertaking was required from the
petitioner nor petitioner furnished any such undertaking. As such, the
judgment of the Apex Court in the case of Rafiq Masih (Supra) has
full application.
Heard.
Looking to the factual matrix in hand, it is evident that the
impugned recovery has been ordered in the context of alleged excess
payment made from 2006 to 2015 consequent upon revision of
payscale. Admittedly, no undertaking of the nature as referred to in
paragraph 9 of the judgment in Jagdev Singh's case (Supra) was
either asked for or furnished by the petitioner. Under these
circumstances, judgment of Apex Court in the case of Rafiq Masih
(Supra) has full application to the facts in hand firstly for the reason
that neither the petitioner was given any notice nor opportunity
before ordering recovery. Secondly, the aforesaid recovery allegedly
in the context of revision of payscale cannot be made as the same is
covered by clauses (ii) and (iii) of the said judgment, as quoted
above."
In view of the above discussion and observation, present writ petition is
allowed and recovery of the amount vide Annexure P/1 and Annexure P/2 is
hereby quashed. However, rectification in pay scale is hereby upheld.
(PRANAY VERMA)
JUDGE
ns
