Madhya Pradesh High Court
Babulal vs Public Heatlh And Family Welfare ... on 2 May, 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 2 nd OF MAY, 2024
WRIT PETITION No. 12658 of 2020
BETWEEN:-
BABULAL S/O BADRILAL CHOUDHARY, AGED ABOUT 63
YEARS, OCCUPATION: PENSIONER R/O: VILLAGE TIHI
TEH. MHOW INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI YASH PAL RATHORE - ADVOCATE)
AND
1. STATE OF MP SECRETARY PUBLIC HEALTH AND
FAMILY WELFARE DEPARTMENT VALLABH
BHAWAN MANTRALAYA BHOPAL (MADHYA
PRADESH)
2. DIRECTORATE OF HEALTH SERVICES THROUGH
COMMISSIONER 4-6 FLOOR SATPURA BHAWAN
BHOPAL (MADHYA PRADESH)
3. CHIEF MEDICAL AND HEALTH OFFICER INDORE
(MADHYA PRADESH)
4. DISTRICT MALARIA OFFICER NAMP INDORE
(MADHYA PRADESH)
5. JOINT DIRECTOR ACCOUNTS AND TREASURY
DIVISIONAL OFFICE, MOTI TABELA INDORE
(MADHYA PRADESH)
6. DISTRICT TREASURY OFFICER MOTI TABELA
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. GEETANJALI CHAURASIA - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 03-05-2024
14:21:38
2
ORDER
By this petition preferred under Article 226 of the Constitution of India,
the petitioner has challenged the order dated 17.01.2020 passed by the District
Malaria Officer, District Indore, whereby a sum of Rs.2,12,069/- has been
directed to be recovered from his leave encashment account.
02. As per the petitioner, he was initially appointed on the post of Field
Worker on 15.11.1980. He superannuated upon attaining the age of retirement
on 31.07.2019. Thereafter by order dated 14.01.2020 an amount of
Rs.2,12,069/- has been directed to be recovered from his leave encashment
account on account of wrong pay fixation done in the year 1980. The principal
amount is stated to be Rs.1,10,459/- and interest amount to be Rs.1,01,610/-.
03. The aforesaid order has been assailed by the petitioner on the ground
that the petitioner is a Class-III employee. He was not in any manner
responsible for his pay fixation and there had not been any misrepresentation on
his part. The fault, if any, was entirely of the respondents. The petitioner was
continued to be paid the pay for a period of almost 38 years after which the
said mistake has been discovered. The recovery is being made after the
retirement of the petitioner and that too for a period of more than five years
from the date of passing of the recovery order hence cannot be sustained.
04. Per contra, learned counsel for the respondents/State has submitted
that the petitioner was given wrong pay fixation in the year 1980 and was
continued to be paid excess salary upto the date of his superannuation.
Immediately upon discovery of the mistake, the recovery has been directed to
be made from the petitioner in which no error can be pointed out.
05. I have considered the rival submissions and have perused the record.
06. The Apex Court in the case of State of Punjab and others v. Rafiq
Masih (white washer) and others, (2015) 4 SCC 334 has laid down the
conditions when recovery from a Class-III or Class-IV employee cannot be
directed. It has been held as under:-
"18. 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 decisions referred to
hereinabove, we may, as a ready reference, summarise the
following few situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class
IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the 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."
07. In the present case also, the recovery is being made from the
petitioner who is a Class-III employee and after his retirement and for a period
of more than five years from the date of passing of the recovery order. The
same in view of the judgment in the case of Rafiq Masih (supra) is not
sustainable and deserves to be quashed.
08. Consequently, the petition is allowed. The order dated 14.01.2020
(Annexure P/2) passed by the respondents is set aside. The amount, if any,
recovered from the petitioner be paid to him along with interest @6% per
annum from the date of recovery till date of payment. Let the same be done
within a period of three months from the date of receipt of certified copy of this
order. The pay fixation of the petitioner is however maintained.
(PRANAY VERMA)
JUDGE
Shilpa
