Madhya Pradesh High Court
The State Of Madhya Pradesh vs Gyanchand Vasunde on 15 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 15 th OF FEBRUARY, 2024
WRIT APPEAL No. 187 of 2024
BETWEEN:-
1. THE STATE OF MADHYA PRADESH, THROUGH
SECRETARY PUBLIC HEALTH ENGINEERING
DEPARTMENT, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. CHIEF ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT (PHE), MUSAKHEDI,
INDORE (MADHYA PRADESH)
3. EXECUTIVE ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT, DIVISION NO. 1,
MANDLESHWAR, KHARGONE (MADHYA
PRADESH)
4. JOINT DIRECTOR, TREASURY AND ACCOUNTS,
INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE FOR THE
RESPONDENT/STATE).
AND
1. GYANCHAND VASUNDE S/O SITARAM,
OCCUPATION: WIREMAN PHE COLONY, PHED,
MANDLESHWAR, DISTT. KHARGONE (MADHYA
PRADESH)
2. LAXMAN DAWDE S/O CHOGALAL DAWADE,
OCCUPATION: RETIRED (WIREMAN), BORBADIYA
VILLAGE, MAHESHWAR, DIST. KHARGONE
(MADHYA PRADESH)
3. RATANLAL GANGAREKAR S/O KALURAM,
OCCUPATION: RETIRED (WIREMAN),
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 17-02-
2024 13:34:30
2
SHRINAGAR, MAHESHWAR, DIST. KHARGONE
(MADHYA PRADESH)
4. RADHESHYAM BARFA S/O MOHANLAL,
OCCUPATION: WIREMAN, GRAM CHOTI
KHARGONE, TEHSIL MAHESHWAR, DIST.
KHARGONE (MADHYA PRADESH)
5. BHOLURAM DEWADE S/O GOVIND DEWADE,
OCCUPATION: WIREMAN PHE COLONY, R/O
MANDLESHWAR, TEHSIL MAHESHWAR, DISTT.
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on I.A.No. 587/2024, application under Section 5 of the
Limitation Act for condonation of delay in filing the appeal. As per the office
report, the appeal is time barred by 320 days.
2. For the reasons mentioned in the application, the same is allowed.
Delay in filing the appeal is hereby condoned. I.A.No. 587/2024 stands
disposed of.
3. This appeal under Section 2(1) of the Madhya Pradesh Uchha
Nyayalay (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 assails the order
dated 02.12.2022 passed by the learned Single Judge in W.P.No. 26703/2022
whereby the writ petition filed by the respondents challenging the order of
recovery of the amount from the respective respondents has been allowed.
4. The brief facts of the case are that vide order dated 26.02.1997, the
wrong pay fixation was granted to the respondents on the post of Wireman
Grade-II. Thereafter, on the same ground, the pay scale of Grade-I was
wrongly granted to them and in view of the aforesaid, the respondents were
drawing the pay scale for which they were not entitled. Later, the appellants
cancelled the pay fixation and ordered recovery.
5. The main contention of the learned Government Advocate for the
appellants/State is that the respondents were fence sitters and were waiting for
the outcome of the writ petitions filed by the similarly situated employees.
When the writ petition filed by the similarly situated persons were allowed and
the writ appeal against the same was dismissed, thereafter they have filed the
writ petition with a delay of about 5-7 years for which no plausible explanation
has been put forth by the respondents. The learned Single Judge, without
considering the ground of delay and latches, had passed the order impugned
and granted benefit to the respondents which is contrary to the rules.
6. On perusal of the impugned order, it is seen that earlier, the pay
fixation was granted to the respondents from their effective dates, however,
after a lapse of more than 18 years, pay fixation has been cancelled vide order
dated 08.12.2015 and the order of recovery has been directed.
7. The Apex Court in the case of State of Punjab and others vs. Rafiq
Masih (White Washter) etc. reported in 2015 (1) MPHT 130 (SC) has 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.
( i i i ) R ecovery 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."
8. From perusal of the aforesaid judgment, Clauses (i), (ii) and (iii) are
applicable in the present case.
9. It is an admitted fact that the respondents did not misrepresent their
case before the authorities nor had undertaken to refund the amount at any point
of time. That apart, the entire recovery is without any notice or opportunity of
hearing. Therefore, the same is absolutely illegal for want of observance of
principles of natural justice.
10. So far as the delay and latches are concerned, pay fixation for
pensionary benefits and grant of pension are recurring cause of action. Looking
to the factual matrix of the case at hand, the recovery has been ordered in the
context of alleged excess payment made from the year 1997 to 2015
consequent upon revision of pay scale. In view of the aforesaid, the learned
Single Judge has not committed any error on the face of the record so as to
interfere with the order impugned.
11. Consequently, the writ appeal being bereft of merit and substance is
hereby dismissed.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vidya
