Madhya Pradesh High Court
Bherulal Dangar vs The State Of Madhya Pradesh on 26 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
ON THE 26 th OF FEBRUARY, 2024
WRIT PETITION No. 6678 of 2021
BETWEEN:-
BHERULAL DANGAR S/O KANHAIYALAL DANGAR,
AGED 64 YEARS, OCCUPATION: RETD. WORK CHARGED
HELPER R/O 16/02, KANSHIRAM COLONY, JAORA
(MADHYA PRADESH)
.....PETITIONER
(SHRI K.P.MOHAN, COUNSEL FOR THE PETITIONER).
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, PUBLIC HEALTH
ENGINEERING DEPARTMENT, VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. SUPERINTENDING ENGINEER, PUBLIC HEALTH
ENGINEER DEPARTMENT, CIRCLE UJJAIN,
CHAMUNDA MATA SQUARE UJJAIN (MADHYA
PRADESH)
3. THE EXECUTIVE ENGINEER, PUBLIC HEALTH
ENGINEERING DEPARTMENT, CIRCLE RATLAM,
ANAND COLONY, RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE FOR THE
RESPONDENTS).
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard finally with the consent of both the parties.
In this petition under Article 226 of the Constitution of India, the
petitioner has approached this Court being aggrieved by the orders dated
19.10.2020 and 18.12.2020 passed by the respondents, whereby an amount of
Rs. 58,567/- has been ordered to be recovered after retirement from the arrears
and gratuity towards excess payment of salary made from 12.07.1988 due to
wrong pay fixation.
2. On perusal of the impugned orders dated 19.10.2020 (Annexure P/1)
and 18.12.2020 (Annexure P/2), it reveals that the order of recovery has been
ordered due to the wrong pay scale which was granted to the petitioner from
12.07.1988 till attaining the age of superannuation.
3 . Learned counsel for the petitioner submits that the petitoner was
Class IV employee who got retired on 31.01.2019. The earlier pay fixation was
done in accordance with law. Learned counsel for the petitioner further
contended that the petitioner was not at fault at any point of time and he has not
misrepresented his case nor committed any fraud. He placed reliance on the
judgment of Apex Court in the case of M.P. Medical Officers Association vs.
State of M.P. and others passed in Civil Appeal No.5527/2022 vide
judgment dated 26/08/2022 wherein the Apex Court has quashed the recovery
of excess amount and has directed to refund the entire amount which was
recovered from the employees who were in service.
4. The Apex Court in the case of State of Punjab and others vs. Rafiq
Masih (White Washer) etc. (2015) 4 SCC 334 has held as under:-
''12. 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 decision referred to herein 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 employees belonging to Class-III and Class-IV service
(or Group 'C' and Group 'D' service).
(ii) Recovery from the retired employees, or 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."
5 . O n the other hand, learned Government Advocate for the
respondents/State has opposed the prayer and submitted that the recovery has
been ordered on the objection raised by the competent authority for the amount
fo r which petitioner is not entitled. With the aforesaid submissions, learned
counsel for the State submits that no illegality has been committed while
ordering recovery of Rs. 58,567/-.
6. Heard learned counsel for the parties.
7 . As per Rafiq Masih (Supra) the recovery cannot effected from
Class III or Class IV employed as well as from a retired employee. Secondly,
recovery cannot be effected for the excess of payment which has been made
for the period in excess of five year. In the present case, the recovery is being
effected for pay scale which was granted to the petitioner in the year 1988,
which is not permissible.
8. In view of the principles laid down in case of Rafiq Masih (Supra)
and M.P. Medical Officers Association (Supra) , the impugned orders of
recovery dated 19.10.2020 (Annexure P/1) and 18.12.2020 (Annexure P/2) are
hereby quashed and set-aside. The respondents are directed to refund the sum
of Rs. 58,567/- alongwith interest @ 6% per annum from the date of recovery
till the date of repayment to the petitioner.
9 . Accordingly, the petition stands allowed to the extent indicated
hereinabove.
10. No order as to costs.
(S. A. DHARMADHIKARI)
JUDGE
vidya
