Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dilip Kumar Mishra on 17 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 17 th OF FEBRUARY, 2024
WRIT APPEAL No. 247 of 2024
BETWEEN:-
1. THE STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, HOME DEPARTMENT,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. SUPERINTENDENT OF POLICE, POLICE TRAINING
COLLEGE, RING ROAD, MUSAKHEDI, INDORE
(MADHYA PRADESH)
3. DIVISIONAL PENSION OFFICER, INDORE
D IVIS ION , COLLECTORATE OFFICE, INDORE
(MADHYA PRADESH)
.....APPELLANTS
(SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE FOR THE
APPELLANTS/STATE).
AND
DILIP KUMAR MISHRA S/O LATE SHRI MOHANLALJI
MISHRA, AGED 62 YEARS, OCCUPATION: RETD. 187-C
VAIBHAV NAGAR EXTENSION KANADIA ROAD INDORE
(MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on I.A.No. 827/2024, 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 245 days.
2. For the reasons mentioned in the application, the same is allowed.
Delay in filing the appeal is hereby condoned. I.A.No. 827/2024 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 28.02.2023 (Annexure A/1) passed by the learned Single Judge in
W.P.No. 15197/2021 whereby the writ petition filed by the respondent
challenging the order of recovery from pension and gratuity has been allowed.
4. The brief facts of the case are that the respondent was appointed on
the post of Sub Inspector and on attaining superannuation, retired on
31.01.2021. While finalising the pensionary benefits, the authorities raised
objection regarding erroneous pay fixation which was extended to the
respondent w.e.f. 01.01.1996. Thereafter, the order of recovery was passed and
an amount of Rs. 1,42,957/- was deducted from his retiral dues.
5. The main contention of the learned Government Advocate for the
appellants/State is that the recovery order was passed in view of the objection
raised by the competent authority due to excess payment made to the
respondent/employee on account of wrong pay fixation. Learned Single Judge,
however, failed to appreciate the fact that the respondent had received excess
payment for which he is not entitled. Even otherwise, the order impugned is not
sustainable in the eyes of law in view of the law laid down in case of Rajendra
Bhawsar vs. State of MP & Ors in W.P.No. 826/2017 which has been
affirmed by the Division Bench of this Court in W.A.No. 120/2018. Hence, the
order impugned is liable to be set aside.
6. On perusal of the impugned order, it is seen that earlier, the benefit of
pay fixation was granted to the respondent w.e.f. 01.01.1996. After a lapse of
about 25 years, the order of recovery has been directed from his retiral dues.
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 :
"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 (ii) and (iii) are
applicable in the present case.
9. It is an admitted fact that the respondent did not misrepresent his case
before the authorities nor had undertaken to refund the amount at any point of
time with regard to recovery towards wrong pay fixation. That apart, recovery
cannot be effected for the excess of payment which has been made for a period
in excess of five year. Looking to the factual matrix of the case at hand, the
recovery has been ordered in the context of alleged excess of payment made
from the year 1996 to 2021 consequent upon revision of pay scale, which is not
permissible.
10. 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
