Madhya Pradesh High Court
Pramila Sahite vs The State Of Madhya Pradesh Through ... 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. 12305 of 2020
BETWEEN:-
PRAMILA SAHITE D/O SHRI HAJARI LAL SAHITE,
AGED ABOUT 35 YEARS, OCCUPATION: SERVICE,
ADDRESS:- GRAM TEMLA, POST TEMLA, TEHSIL
PANSEMAL DISTT BADWANI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI RANJEET SEN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
1. PUBLIC HEALTH AND FAMILY WELFARE
PRINCIPAL SECRETARY VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
CHIEF MEDICAL AND HEALTH OFFICER
2.
BARWANI (MADHYA PRADESH)
CHIEF BLOCK MEDICAL AND HEALTH
OFFICER COMMUNITY HEALTH CENTRE
3.
PANSEMAL, DIST. BARWANI (MADHYA
PRADESH)
DISTRICT TREASURY OFFICER (PENSION)
4.
BARWANI (MADHYA PRADESH)
JOINT DIRECTOR, TREASURY, ACCOUNTS
5. AND PENSION, DIVISIONAL OFFICE.
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. PRANJALI YAJURVED, P.L. 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 challenged the order dated 16/7/2020 (Annexure P/1) passed
by the respondents in the calculation sheet issued in the year July, 2020
whereby an amount of Rs.55,885/- along with interest at the rate of 12% per
annum, ie., Rs.48,807/- total amount being Rs.1,04,692/- has been ordered to
be recovered from her towards excess payment of salary made during the
period from 1/4/2006 to 1/7/2015.
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
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to him. 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 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
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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
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
16/7/2020 (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 her along with interest @ 6% per annum from the date the same
has been recovered till the date of payment.
(PRANAY VERMA)
JUDGE
SS/-
