Sunita Dhanuk vs State Of M.P. Through Department Of ...
2024 Latest Caselaw 5919 MP

Madhya Pradesh High Court

Sunita Dhanuk vs State Of M.P. Through Department Of ... on 27 February, 2024

Author: Pranay Verma

Bench: Pranay Verma

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 IN THE        HIGH COURT OF MADHYA PRADESH
                     AT I N D O R E
                              BEFORE
            HON'BLE SHRI JUSTICE PRANAY VERMA

                  ON THE 6th OF FEBRUARY, 2024

                 WRIT PETITION No. 13185 of 2020

BETWEEN:-
SUNITA DHANUK W/O ANTRIKSH DHANUK, AGED
ABOUT 52 YEARS, OCCUPATION: SERVICE, ADDRESS :-
HOUSE NO-538, SAKATPURA, GRAM TILAWAD GOVIND
TEHSIL-SHAJAPUR, DISTT SHAJAPUR (MADHYA
PRADESH)
                                                      .....PETITIONER
(RANJEET SEN, LEARNED COUNSEL FOR THE PETITIONER) .
AND
   STATE    OF    M.P.  THROUGH     PRINCIPAL
   SECRETARY, DEPARTMENT OF PUBLIC HEALTH
1.
   AND FAMILY WELFARE PRINCIPAL SECRETARY
   VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
    CHIEF MEDICAL AND HEALTH OFFICER
2. SHAJAPUR, DISTRICT SHAJAPUR (MADHYA
    PRADESH)
   BLOCK MEDICAL AND HEALTH OFFICER
3. PRIMARY HEALTH CENTRE BERCHA, DISTRICT
   SHAJAPUR (MADHYA PRADESH)
    DISTRICT TREASURY OFFICER SHAJAPUR,
4.
    DISTRICT SHAJAPUR (MADHYA PRADESH)
   JOINT DIRECTOR, TREASURY, ACCOUNT AND
5. PENSION, DIVISIONAL OFFICE, UJJAIN, DISTRICT
   UJJAIN (MADHYA PRADESH)
                                                    .....RESPONDENTS
(BY SHRI SHREY RAJ SAXENA - ADDL. ADVOCATE GENERAL FOR STATE)
______________________________________________________________
Reserved on :- 6.2.2024
Pronounced on :-27.2.2024
This petition having been heard and reserved for orders, coming on for
pronouncement this day, Hon'ble Justice Pranay Verma, pronounced the
following
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                                    ORDER

1. By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenge the order dated 29/8/2019 (Annexure P/1) passed by the respondents and the calculation sheet issued in the year August, 2019 whereby an amount of Rs.33,372/- along with interest at the rate of 12% per annum, ie., Rs.40,726/-, total Rs.74,098/- has been ordered to be recovered from him towards excess of salary made from the period January, 2006 up to December, 2015.

2. The impugned order has been challenged by the petitioner by relying upon the judgment passed by the Apex 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 no undertaking was given by the petitioner to the effect that in case it is found that any excess amount has been paid to the petitioner the same may be recovered from him.

3. The respondents have filed a reply to the petition and it is submitted by the learned counsel for the respondents that 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 no undertaking was taken from the petitioner before or after grant of the payscale to him. Therefore, the law laid down by the Apex Court in the case of State of

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Punjab and Others V/s. Jagdev Singh shall not apply in this case as the petitioner did not give any undertaking for pay fixation for grant of pay revision in light of Pay Revision Rules.

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

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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 payscale 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

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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 payscale 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 payscale. 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 payscale cannot be made as the same is covered by clauses (ii) and (iii) of the said judgment, as quoted above."

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6. 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 29/8/2019 (Annexure P/1) is hereby quashed. However, rectification in the pay-scale is hereby upheld. 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.

(PRANAY VERMA) JUDGE SS/-