Madhya Pradesh High Court
Smt. Heerakanta Mali vs Public Health And Family Welfare ... on 15 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 15 th OF FEBRUARY, 2024
WRIT PETITION No. 19363 of 2020
BETWEEN:-
SMT. HEERAKANTA MALI S/O SHRI RAMCHANDRA
MALI, AGED ABOUT 65 YEARS, OCCUPATION: RETIRED
(SERVICE), R/O HOUSE NO. 14, BHOJ MARG, MALI SERI
GALI, DIST. JHABUA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANENDRA SINGH PARIHAR - ADVOCATE)
AND
1. THE STATE OF M.P.
THROUGH PRINCIPAL SECRETARY MINISTRY OF
PUBLIC HEALTH AND FAMILY WELFARE
DEPARTMENT VALLABH BHAWAN BHOPAL (M.P.)
(MADHYA PRADESH)
2. THE CHIEF MEDICAL AND HEALTH OFFICER
JHABUA R/O: JHABUA (MADHYA PRADESH)
3. THE DISTRICT PENSION OFFICER JHABUA DIST
JHABUA (MADHYA PRADESH)
4. THE DISTRICT TREASURY OFFICER JHABUA
TREASURY DIST- JHABUA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MUKESH PARWAL - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
By this petition, petitioner is challenging the order dated 08.12.2017
(Annexure P/5) passed by respondents whereby recovery in the sum of
Rs.1,44,512/- has been directed from her.
2. Learned counsel for the petitioner has contended that impugned order
of recovery is detrimental to the petitioner. Petitioner has already retired on
31.08.2016. There had not been any misrepresentation on part of the petitioner
during her service carrier and therefore, the order of recovery from her retiral
dues is not sustainable in the light of decision of the Apex Court in the case of
State of Punjab and others Vs. Rafiq Masih (2015) 4 SCC 334. Learned
counsel for the petitioner has further placed reliance on the judgment passed by
this Court in the matter of N.P.S. Sisodia Vs. State of M.P . reported in M.P.
Weekly Notes 2022 (II) MPWN 32, wherein recovery order has been quashed
and respondents were directed to refund the amount, if already recovered along
with simple interest of 6% per annum. It is further submitted that the impugned
order of recovery is liable to be quashed and the respondents deserve to be
directed to refund the amount of recovery made from the petitioner.
3. Learned counsel for the respondents/State has supported the
impugned action and submitted that recovery is correct as excess salary was
paid to the petitioner. It is further submitted that after her retirement the
petitioner had also executed an indemnity bond (Annexure R/1) to the effect
that in case any excess amount is found to be paid to her, then the same may be
recovered from her.
4. I have heard the learned counsel for the parties and have perused the
record.
5. The issue regarding recovery from the employees either in service or
after attaining the age of superannuation is no more res integra and has been
settled in the case of Rafiq Masih (supra) wherein the Apex Court in
paragraph 18 has postulated certain categories and has observed that recovery
from them is impermissible. Paragraph 18 is reproduced below:-
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 here in above, 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.
6. In view of aforesaid, since the petitioner has already attained the age of
superannuation, no recovery from retired class-III employee is permissible in
the light of the judgment passed by the Apex Court in the case of Rafiq Masih
(supra). As a consequence, the impugned order of recovery is quashed. The
respondents are directed to refund the amount of Rs.1,44,512/- long with
interest @ 6% per annum from the date of recovery. The entire exercise be
completed within a period of two months' from the date of receipt of certified
copy of the order.
7. With the aforesaid, the petition is allowed and disposed off.
(PRANAY VERMA)
JUDGE
jyoti
