Madhya Pradesh High Court
Bismilla Bai Deceased Through Lrs. ... vs Government Hospital on 3 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 3rd OF MAY, 2024
WRIT PETITION No. 11959 of 2020
BETWEEN:-
BISMILLA BAI DECEASED THROUGH LRS.
AISHA QURESHI D/O BISMILLA BAI W/O LATE
AMINUDDIN QURESHI, AGED ABOUT 57
YEARS, OCCUPATION: LABOUR 01 KAILASH
MARG JHABUA, DISTT. JHABUA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AKASH RATHI - ADVOCATE)
AND
GOVERNMENT HOSPITAL CIVIL SURGEON
1. CUM CHIEF HOSPITAL SUPERINTENDENT
JHABUA (MADHYA PRADESH)
DISTRICT PENSION OFFICER . DISTRICT
2. TREASURY OFFICER DISTRICT JHABUA
(M.P.) (MADHYA PRADESH)
DISTRICT TREASURY OFFICER DISTRICT
3. TREASURY OFFICER DISTRICT JHABUA
(M.P.) (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI PRAKHAR TRIVEDI - PANEL LAWYER)
This petition coming on for admission this day, the court passed
the following:
ORDER
1. Considered IA No.8338/2023, which is an application for taking
additional documents on record.
2. For the reasons stated in the application, the same is allowed and
the documents are taken on record.
3. This petition under Article 226 of the Constitution of India has
been preferred by the petitioner challenging the recovery of a sum of
Rs.2,24,633/- which includes the principal amount as well as the
interest part as reflected by Annexure P/1 on account of wrong pay
fixation done in the year 2002.
4. As per the petitioner, she was working on the post of Ward Boy
(Aaya) in District Hospital, Jhabua. She was appointed on 03.10.1989
and attained the age of superannuation on 30.06.2019. After retirement
recovery in the sum of Rs.2,24,633/- has been made from her gratuity
amount. It is submitted that the said deduction has been made on
account of wrong pay fixation of the petitioner done in the year 2002.
The same was however not due to any fault on part of the petitioner but
was on account of the mistake of the respondents themselves. The
petitioner had not made any misrepresentation as regards her salary.
The recovery which has been made from the petitioner is after her
retirement and in respect of a period which is more than 5 years prior to
the date of her retirement. It is further submitted that the petitioner is a
Class-IV employee hence recovery against her that too after her
retirement is not permissible. Though an undertaking is stated to have
been given by the petitioner at the time of her retirement but the same
would not be binding upon her since the same was not taken from her at
the time of conferral of the benefit of pay-scale to her. It is hence
submitted that the impugned recovery against the petitioner deserves to
be quashed.
5. Per contra, learned counsel for the respondent/State has
submitted that on account of wrong pay fixation the petitioner was paid
excess salary from the year 2002 upto the date of her superannuation.
After her retirement the said mistake came to be discovered on the basis
of which the recovery has been made from her. It is further submitted
that the petitioner had furnished an undertaking on 20.06.2019 to the
effect that in case any amount is found to have been wrongly paid to her
the same can be recovered from her which is enforceable upon her. It is
hence submitted that the petition deserves to be dismissed.
6. I have considered the submissions of the learned counsel for the
parties and have perused the record.
7. In State of M.P. and Others V/s. Jagdish Prasad Dubey 2024
(2) M.P.L.J. 198 the full Bench of this Court has held that undertaking
has to be furnished by the employee at the time when revision of pay
takes place. The undertaking furnished at the time of extending the
benefits of revision of pay to an employee is required to be taken note
of. The indemnity bond in the form of an undertaking furnished at the
fag end of service career cannot be said to be an undertaking for which
recovery of excess payment which has been made decades ago would
become effective. It has been held as under :-
"26. The guidelines would indicate that an
undertaking has to be furnished by the employee to the
effect that he will refund the excess payment made to
him. It is only on furnishing of such an undertaking, the
payment towards revision of pay would be made to
him. Therefore, this goes to indicate that an
undertaking is required to be furnished at the time
when the revision of pay has taken place. The same is
also reflected in the judgment in the case of Jagdev
Singh (supra). Therefore, the undertaking which is
being furnished at the time of extending the benefits of
revision of pay to an employee is required to be taken
note of. The indemnity bond in the form of an
undertaking furnished at the fag end of service career
cannot be said to be an undertaking for which the
recovery of excess payment which has been made
decades ago could become effective. The judgment of
the Larger Bench of the Hon'ble Supreme Court in the
case of Syed Abdul Qadir (supra) has to be followed.
Prior to initiating recovery, exceptional circumstances
as pointed out in the aforesaid case are also required
to be considered.
27. Hence for all these reasons, we answer the
Question No.1 to the effect that recovery can be
ordered to be effected from the pensionary benefits or
from the salary in view of the undertaking or indemnity
bond given by the employee at the stage when the grant
of benefit of pay refixation is made."
8. In the present case also the undertaking which had been furnished
by the petitioner in the form of an indemnity bond was in the year 2019.
No undertaking was furnished by her at the time of extending of the
benefits of revision of pay to her. The undertaking thus relied upon by
the respondents is inapplicable and unenforceable against the petitioner.
The petitioner is a Claas-IV employee and recovery is sought to be
made from her after her retirement and that too for a period of 5 years
prior to the recovery. The same is hence also impermissible in view of
the law laid down by the Apex Court in the case of State of Punjab
and Others V/s. Rafiq Masih (White Washer) and Others 2015 (4)
SCC 334.
9. As a result of the aforesaid discussion, the petition deserves to be
and is accordingly allowed. The recovery made from the original
petitioner is hereby quashed. The amount recovered from the employee
namely Bismilla Bi along with interest @ 6% per annum from the date
of recovery till date of payment be returned to her daughter Aaysha
Qureshi, her legal representative, within a period of three months from
the date of receipt of certified copy of this order. The pay fixation of the
original petitioner is however maintained.
(PRANAY VERMA)
JUDGE
ns
