Madhya Pradesh High Court
Vishnu Dutt Sharma vs The State Of Madhya Pradesh on 29 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 29 th OF FEBRUARY, 2024
WRIT PETITION No. 21011 of 2022
BETWEEN:-
VISHNU DUTT SHARMA S/O LATE SHRI GIRDHARILAL
SHARMA, AGED ABOUT 63 YEARS, OCCUPATION:
RETIRED, R/O NEAR POLICE STATION, SIMROL,
TEHSIL MHOW, DISTRICT INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI L. C. PATNE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY TO THE GOVERNMENT OF MADHYA
PRADESH, DEPARTMENT OF SCHOOL
EDUCATION, VALLABH BHAWAN MANTRALAYA,
BHOPAL (MADHYA PRADESH)
2. THE DISTRICT EDUCATION OFFICER, DISTRICT
INDORE (MADHYA PRADESH)
3. THE BLOCK EDUCATION OFFICER, DR.
AMBEDKAR NAGAR, MHOW, TEHSIL MHOW
(MADHYA PRADESH)
4. THE DIVISIONAL PENSION OFFICER INDORE,
DIVISION, 202, SATELLITE BHAWAN, NEW
ADMINISTRATIVE CAMPUS, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SHREY RAJ SAXENA- DEPUTY ADVOCATE GENERAL)
This petition coming on for admission this day, th e court passed the
following:
ORDER
With the consent of learned counsel for the parties, the matter is finally
heard.
2 . By this petition preferred under Article 226 of the Constitution of
India, the petitioner who is a retired Government employee has sought
quashment of the order of re-fixation/recovery issued against him dated
16.03.2022 directing for recovery of a sum of Rs.2,17,424/- including interest
from the Leave Encashment amount payable to him after his retirement upon
attaining the age of superannuation
3. At the outset, learned counsel for the petitioner has drawn attention of
this Court to an order passed by Co-ordinate Bench of this Court in W.P.
No.3419/2017 [Omprakash Tiwari vs. Public Health Engineering Department
and others] in which it has been held as under:
"2. The facts of the case are that the petitioner was initially
appointed in the department on the post of Sub-Engineer by order dated
09.04.1979 in the pay scale of Rs.280-480. After completion of 12
years on the post of Sub-Engineer, he was granted higher pay scale of
Rs.2000-2900 by order dated 02.08.1991. The petitioner's salary was
revised from 01.01.1996 in the pay scale of Rs.6500-9100 and in the
6th pay commission, his pay was fixed on the pay scale of Rs.8000-
13500/-. After completion of 28 years of service on the post of Sub-
Engineer, he was allowed time scale pay of Rs.10,000-15200 by order
dated 04.06.2010 from 18.07.2008. The petitioner was promoted from
the post of Sub-Engineer to the post of Assistant Engineer by order
dated 09.06.2011 in the pay scale of Rs.15600-39100 grade pay
5400. The petitioner was due for retirement on 30.09.2016. The
respondent arbitrarily revised the salary of the petitioner without any
notice to him and the order of recovery of Rs.1,65,244/- was passed
against the petitioner of excess payment of salary to him.
3. The respondents have filed reply and stated that the petitioner
was entitled to get total amount of salary in the pay scale of Rs.23350/-
from 01.01.2006 but he was paid excess amount of salary of
Rs.23,850/- due to mistake and the same continued till his retirement.
Thus, the petitioner was paid excess amount of Rs.1,65,244/-.
4 . It is further submitted that the petitioner had given an
undertaking Annexure R/2 that if it is found that the petitioner is paid
excess amount, the same shall be refunded by him.
5 . Learned counsel for the respondent/state has relied on the
judgment passed by the Apex Court in the case of High Court of Punjab
and Haryana Vs. Jagdev Singh passed in Civil Appeal No.3500/2006,
in which it is stated that if the employee had given an undertaking for
refund, the recovery can be made of excess payment.
6. Combating the aforesaid submissions, learned counsel for the
petitioner submitted that Annexure R/2 undertaking would not apply in
the present case because the same was furnished in the year 1987 in
pursuant to the pay fixation of the year 1986, whereas, the recovery is
being made in pursuant to the pay fixation of year 2006 for which no
undertaking was furnished by him.Therefore, the judgment passed in the
case of Jagdev (supra) would not apply.
7. He further submitted that there is no mistake on the part of
the petitioner and he has not mislead the department. The petitioner is a
retired government employee and the respondent cannot be permitted to
recover the said mount after his retirement.
8. After hearing learned counsel for the parties and taking into
consideration that the petitioner got paid salary of Rs.23850/- till
retirement by the respondent themselves and there was no
misrepresentation on behalf of the petitioner. Since there is no
misrepresentation or fault on the part of the petitioner, therefore, the
respondent cannot affect the recovery of the said amount from the
petitioner after his retirement, in view of the law laid down in the case of
Syed Abdul Kadir Vs. State of Bihar reported in (2009) 3 SCC 475.
The judgment of Jagdev (supra) relied by the counsel for the
respondent/state would not apply to the facts of the present case. There
is no undertaking on record for refund of the amount in pursuant to the
pay fixation of year 2006. In view of the aforesaid, the present petition is
allowed and the respondents are directed to refund the deposited
amount of Rs.1,65,244/- with 6% interest within the period of three
months from today and if the said amount is not refunded to the
petitioner within the aforesaid period, the said amount shall carry 9%
interest per month."
4. In the present case also it is the stand of the respondents that there was
an error in the pay fixation of the petitioner as a result of which he has been paid
excess amount of salary due to mistake which continued up to his retirement.
The petitioner was paid excess salary to the tune of Rs.2,17,424/-. The
undertaking Annexure R/6 which was furnished by the petitioner at the time of
his retirement is only a general undertaking which states that amount can be
recovered from him in case there is any mistake on his part in payment of any
amount. However, the payment in the present matter has been made to the
petitioner not on account of any fault on his part but due to the wrong pay
fixation as done by the respondents themselves. The said undertaking would
hence not be applicable in case of the petitioner. There has been no mistake on
part of the petitioner and he has not misrepresented to the department.
5. The petitioner being a retired employee the respondents cannot be
permitted to recover the amount after his retirement, in view of the law laid
down in the case of Syed Abdul Kadir Vs. State of Bihar reported in (2009)
3 SCC 475. There is no undertaking on part of the petitioner for refund of the
amount paid to him pursuant to the pay fixation.
6. In view of the aforesaid, the present petition deserves to be and is
accordingly allowed and the respondents are directed to refund the recovered
amount of Rs.2,17,424/- along with interest @ 6% per annum within a period of
three months' from the date of receipt of certified copy of this order and if the
said amount is not refunded to the petitioner within the aforesaid period, the
said amount shall carry 9% interest per month. The pay fixation of the petitioner
is however maintained.
(PRANAY VERMA)
JUDGE
jyoti
