Gajanand Patil vs The State Of Madhya Pradesh
2024 Latest Caselaw 13338 MP

Madhya Pradesh High Court

Gajanand Patil vs The State Of Madhya Pradesh on 9 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 9 th OF MAY, 2024
                                              WRIT PETITION No. 2405 of 2024

                           BETWEEN:-
                           GAJANAND PATIL S/O SHIVJI, AGED ABOUT 63 YEARS,
                           OCCUPATION: WARDBOY IV CLASS KARMCHARI
                           SAMUDAYIK SWASTHYA KENDRA RAJPUR R/O: SAI
                           VIHAR COLONY RAJPUR DISTT. BARWANI (MADHYA
                           PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI ANAND AGRAWAL - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH PRINCIPAL
                                 SECRETARY PUBLIC HEALTH AND FAMILY
                                 WELFARE DEPARTMENT MANTRALAYA BHOPAL
                                 (MADHYA PRADESH)

                           2.    MUKHYA CHIKITSA AVAM SWASTHYA ADHIKARI
                                 MAHILA HOSPITAL KE PASS, BARWANI JILA
                                 BARWANI (MADHYA PRADESH)

                           3.    JILA KOSHALAYA ADHIKARI BARWANI, ADD.
                                 NEW COLLECTORATE BHAWAN, SEGAON FATA
                                 BARWANI (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI ANENDRA SINGH PARIHAR - PANEL LAWYER)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 15.06.2023 (Annexure P/1) passed by respondents, whereby recovery in the sum of Rs.6,44,406/- (principal

amount Rs.3,15,512/- and interest amount Rs.3,28,894/-) has been directed to be made from his retiral dues on account of wrong pay fixation.

02. As per the petitioner, he was appointed as a Ward Boy and superannuated on 31.01.2023. After his retirement, the impugned order has been passed directing for recovery to be made from him on account of wrong pay fixation done in the year 2006. It is submitted that the petitioner is a Class-IV employee and has already retired and the recovery is being made from him for a period in excess of five years from the date of his retirement. The petitioner was not at any fault in the matter of his pay fixation and no misrepresentation was made by him in that behalf. The fault, if any, was entirely of the respondents. It

is hence submitted that the impugned recovery against the petitioner be quashed.

03. Per contra, learned counsel for the respondent/State has submitted that on account of wrong pay fixation done in the year 2006, the petitioner has received excess salary. The said mistake has been discovered at the time of retirement of the petitioner hence the impugned recovery has been directed against him in which there is no illegality. The petition hence deserves to be dismissed.

04. I have considered the rival submissions and have perused the record.

05. The Full Bench of this Court in State of M.P. & Ors. V/s. Jagdish Prasad Dubey, 2024 (2) MPLJ 198 has 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) h a s 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."

06. Thus, in view of the aforesaid decision, the undertaking, if any, submitted by the petitioner at the time of his pay fixation would not be the only consideration and the principles as laid down in State of Punjab and Others Vs. Rafiq Masih (white washer) and Others, 2015 4 SCC 334 are also required to be considered in which 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."

0 7 . In the instant case also, the recovery is being made from the petitioner, who is a Class-IV employee and after his retirement and for a period in excess of five years from the date of his retirement. The said recovery is hence not sustainable in view of the law laid down in the case of Rafiq Masih (supra).

08. As a result, the petition deserves to be and is accordingly allowed. The impugned order dated 15.06.2023 (Annexure P/1) is hereby quashed. The amount, if any, recovered from the petitioner be refunded to him alongwith interest @ 6% per annum from the date of recovery till date of payment. Let the same be done within a period of 3 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