Madhya Pradesh High Court
Saiyad Arman Hussain vs State Of M.P. Home Department (Police) on 27 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 6th OF FEBRUARY, 2024
WRIT PETITION No. 16298 of 2019
BETWEEN:-
SAIYAD ARMAN HUSSAIN S/O LATE SHRI
GULAM RASUL, AGED ABOUT 60 YEARS,
OCCUPATION: HEAD CONSTABLE, VOLUNTERY
RETIRED D.R.P. LINE, INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI M.I. KHAN - ADVOCATE)
AND
1. STATE OF M.P. HOME DEPARTMENT
(POLICE) PRINCIPAL SECRETARY
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS, JAHANGIRABAD
BHOPAL (MADHYA PRADESH)
3. DEPUTY GENERAL OF POLICE, HOME
DEPARTMENT, RANI SARAY PARISAR,
REGAL SQUARE, INDORE (MADHYA
PRADESH)
4. SUPERINTENDENT OF POLICE POLICE
HEADQUARTERS, RANI SARAY ,PARISAR,
REGAL SQUARE, INDORE (MADHYA
PRADESH)
5. JOINT DIRECTOR, DIRECTORATE OF
PENSION NEAR KOTHARI MARKET,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 27-Feb-24
3:11:40 PM
2
(BY SHRI BHUWAN DESHMUKH - GOVERNMENT ADVOCATE )
Reserved on : 06.02.2024
Pronounced on : 27. 02.2024
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the court passed the following:
ORDER
By this petition preferred under Article 226 of the Constitution
of India, the petitioner has challenged the order dated 20.03.2019
(Annexure P/6) passed by the respondents whereby an amount of
Rs.1,22,673/- has been ordered to be recovered from him towards excess
payment of salary made during the period from 1986 up to 2018. The
petitioner has also claimed for payment of five months' of salary to him
from October, 2017 up to February, 2018 and has also claimed for
benefits of Earned Leave of 300 days instead of 119 days.
2. The impugned order has been challenged by the petitioner by
relying upon the judgment passed by the Hon'ble Supreme Court in the
case of State of Punjab and Others V/s. Rafiq Masih (White Washer)
2015 (1) MPHT 130 (SC). It is further submitted by the learned counsel
for the petitioner that the undertaking which was given by the petitioner
at the time of his retirement in the year 2018 to the effect that if any
amount is found recoverable from him, the same be recovered is in fact
not undertaking and a bond which states that any amount can be
recovered from him which has been paid to him due to neglect, failure,
misconduct or disobedient on his part. The payment which was made to
the petitioner was on account of fault of the respondents and not of the
petitioners for which he cannot be held liable. The undertaking relied
upon by the respondents hence cannot be enforced upon the petitioner to
make the recovery in question.
3. The respondents have filed a reply to the petition and it is
submitted by the learned counsel for the respondents that an undertaking
had been given by the petitioner that in case any amount is found to have
been paid in excess to him the same shall be recoverable from him. The
benefit of the decision of the Apex Court in the case of Rafiq Masih
(White Washer) (supra) cannot be claimed in the light of judgment of
Hon'ble Supreme Court in the case of State of Punjab and Others V/s.
Jagdev Singh passed in Civil Appeal No.3500/2006 wherein the
Supreme Court while addressing upon similar issue in the light of Rafiq
Masih's case has held that the time of revision of pay scale the petitioner
therein had given an undertaking that if any payment is found to be in
excess, the same shall be liable to be adjusted, hence the aforesaid
judgment is not applicable to the petitioner. It is hence submitted that no
illegality has been committed in passing the impugned order.
4. Learned counsel for the petitioner in response submits that the
undertaking which was given by the petitioner was at the time of his
retirement. No such undertaking was taken from the petitioner at the time
of payment made to him in the year 1986 to 2018. Therefore, the law laid
down by the Apex Court in the case of State of Punjab and Others V/s.
Jagdev Singh shall not apply in this case as the petitioner did not give
any undertaking for payment of the salary to him.
5. In similar facts and circumstances, the Co-ordinate Bench of
this Court has allowed the W.P. No.6425/2015 by order dated
13.04.2023. The operative part of the order is reproduced as under :-
"Learned 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.
(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."
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 pay scale 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 of 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 pay scale 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 pay scale. 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 pay scale cannot be made as the same is covered by
clauses (ii) and (iii) of the said judgment, as quoted above."
6. In the present case the recovery which is being made from the
petitioner is in respect of extraordinary leave sanctioned to him which
resulted in increase of his salary. The same is also for the reason of
calculation of his period of leave without pay and upon the same being
directed to be corrected, recovery is being made from him. The same
cannot in any manner be said to be any neglect, failure, misconduct or
disobedience on part of the petitioner. In making the payment it is the
respondents who have been at fault and not the petitioner who cannot be
saddled with the liability of recovery. The undertaking relied upon by the
respondents is limited to the cases where excess payment is made due to
fault on part of petitioner. That is not the case here. The fault lies with the
respondents hence they cannot seek to make recovery from the petitioner.
The indemnity bond Annexure R/2 relied upon the respondents does not
justify the recovery being made from the petitioner.
7. In view of the above discussion and observations, the present
Writ Petition deserves to be and is accordingly allowed and the recovery
of the amount directed to be made from the petitioner by impugned order
dated 20.03.2019 (Annexure P/6) is hereby quashed. The amount, if any,
recovered from the petitioner be refunded to him along with interest @
6% per annum from the date the same has been recovered till the date of
payment.
8. It is further directed that the respondents shall pay salary to the
petitioner for the period from October, 2017 up to February, 2018 within
a period of three months' from the date of receipt of certified copy of this
order, in case the same has still not been paid to the petitioner. It is
further directed that the Earned Leave of the petitioner be calculated at
300 days instead of 119 days and the benefits in that regard be extended
to him within the aforesaid period of three months.
9. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
jyoti
