Madhya Pradesh High Court
Tekchand Ketele vs The State Of Madhya Pradesh on 9 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 9th OF MAY, 2024
WRIT PETITION No. 22097 of 2022
BETWEEN:-
TEKCHAND KETELE S/O KUNWARJI
KETELE, AGED ABOUT 63 YEARS,
OCCUPATION: RETD. 166, RAMBALI
NAGAR, NEAR SANGAM NAGAR,
INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI ANAND AGRAWAL,ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
PRINCIPAL SECRETARY VALLABH
1.
BHAWAN BHOPAL (M.P.) (MADHYA
PRADESH)
POLICE APAYUKT
MUKHAKHAYALAY NAGRIYA
2. INDORE RANI SARAY REGAL
CHOURAHA INDORE (MADHYA
PRADESH)
SAMBHAGIYA PENSION ADHIKARI
3. COLLECTORATE CAMPUS INDORE
(MADHYA PRADESH)
.....RESPONDENTS
MS. HARSHLATA SONI, GOVT. ADVOCATE
This petition coming on for order this day, the court passed
the following:
ORDER
Heard finally with the consent of both the parties.
1. By this petition preferred under Article 226 of the
Constitution of India, the petitioner has prayed for the following
reliefs:-
अ. याचिकाकर्ता को 2,56,255/- की राशि मय ब्
याज के वापस
करें।
ब. एनेक्सर पी/3 के साथ दिए गए वसूली पत्रक को निरस्त करने
का कष्
ट करें।
ब. अन्
य न्
यायोचित सहायता जो भी उचित हो प्रदान करने का
कष्
ट करे।
2. Brief facts leading to filing of this petition are that the
petitioner was appointed as a Class-III employee. Thereafter, he had
been performing his duties to the utmost satisfaction of all
concerned till his superannuation on 31.01.2022. He had been
drawing the pay scale as fixed. Subsequently, enquiry was raised to
the effect whether the petitioner would be entitled for the same. In
response to the query, it was submitted that the petitioner is not so
entitled.
3. In view of the aforesaid re-fixation of salary of the petitioner
was done and it was held that the excess amount of Rs.2,56,255/-
paid to him is to be recovered. The recovered amount was given to
the petitioner along with letter dated 15.9.2022 (Annexure P/3)
The petitioner was asked to deposit the aforesaid amount which
petitioner deposited on 21.3.2022 (Annexure P/1).
4. Learned counsel for the petitioner contended that the
impugned order of recovery is detrimental to the petitioner. There
had not been any misrepresentation on part of the petitioner and
therefore the order of recovery is not sustainable in the light of
decision of the Apex Court in the case of State of Punjab and
others Vs. Rafiq Masih (2015) 4 SCC 334. It is submitted
that the alleged undertaking which was submitted by the petitioner
on 31.1.2022 (Annexure R-1) was under compulsion for
finalization of his pensionery benefits. The petitioner had submitted
the undertaking but had not waived his right to challenge the illegal
recovery and re-fixation. It is further submitted that the impugned
order of recovery is liable to be quashed and the respondents deserve
to be directed to release entire dues with interest on delayed payment.
5. On the other hand learned counsel for the respondents has
submitted that the undertaking was given by the petitioner at the time
of settlement of his pension. The matter of undertaking is pending
before the Larger Bench hence the respondents have rightly
withdrawn benefits of pay fixation granted to the petitioner. Reliance
has been placed on the decision of the Apex Court in the case of
Chandi Prasad Uniyal and others Vs. State of
Uttarakhand and others (2012) 8 SCC 417 wherein it is
held that payment made due to irregular/wrong pay fixation due to
mistake of authorities concerned can be recovered. It is hence
submitted that the petition is liable to be dismissed.
6. I have heard the learned counsel for the parties and have perused
the record.
7. The issue regarding recovery from the employees either in service
or after attaining the age of superannuation is no more res integra and
has been settled in the case of Rafiq Masih (supra) wherein the
Apex Court in paragraph 18 has postulated certain categories and has
observed that recovery from them is impermissible. Paragraph 18 is
reproduced below:-
"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 here in above, 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."
8. In Writ Petition No.10959/2020 (Smt. Veena Verma
Vs. State of Madhya Pradesh and others) decided on
09.03.2021 a co-ordinate Bench of this Court at Gwalior has
considered the aspect as regards undertaking given by the employees
and has held in paragraph 11 as under:-
"(11) Thus, the controversy with respect to
entitlement of Establishment Clerk is decided by
this Court and is settled. Thus, the only criteria
for granting the benefit of Third Time Bound
Scale was to consider the case of the petitioner as
per the promotional criteria. The petitioner has
fulfilling the promotional criteria, therefore, she
was found entitled by the DPC. The similarly
situated employees have already extended the
benefits of Third Time Bound Pay Scale in the
DPC meeting held on 5.2.2015 vide order dated
25.2.2015, which is filed along with the list of
documents
which clearly reflects that on completion of 30
years of service the time scale pay has been
extended to similarly situated employees. In such
circumstances as far as undertaking given by the
employee is concerned the matter stood concluded
and settled by the Division Bench in the case of
State of M.P. Vs.Chandraeshwar Prasad Singh
(supra) and the Division Bench has held as under:
"We find that the said judgment relied upon by
learned counsel for the State has no applicability
in the facts of the present case as the undertaking
itself is unconscionable writing obtained by the
State. The employee has no option but to submit
undertaking to avail the benefit of pay-fixation. In
a judgment of the Supreme Court reported as
(1986) 3 SCC 136 (Central Inland Water
Transport Corporation Limited and Another v.
Brojo Nath Ganguly and Another), a condition in
the appointment letter that the Corporation could
terminate the services of the employees without
prior notice if it was satisfied that the employee
was unfit medically or was guilty of any
subordination in respect of other misconduct, was
found to be illegal. The Supreme Court held as
under:-
Â"68. We now turn to the second question which
falls for determination in these Appeals, namely,
whether an unconscionable term in a contract of
employment entered into with the Corporation,
which is "the State" within the meaning of the
expression in Article 12, is void as being violative
of Article 14. What is challenged under this head
is clause (i) of Rule 9 of the said Rules. This
challenge levelled by the Respondent in each of
these two Appeals succeeded in the High Court.
xxx xxx
78. Legislation has also interfered in many cases
to prevent one party to a contract from taking
undue or unfair advantage of the other. Instances
of this type of legislation are usury laws, debt
relief laws and laws regulating the hours of work
and conditions of service of workmen and their
unfair discharge from service, and control orders
directing a party to sell a particular essential
commodity to another.
xxx xxx
93. The normal rule of Common Law has been
that a party who seeks to enforce an agreement
which is opposed to public policy will be non-
suited. The case of A. Schroeder Music Publishing
Co. Ltd. v. Macaulay [(1974) 1 WLR 1308],
however, establishes that where a contract is
vitiated as being contrary to public policy, the
party adversely affected by it can sue to have it
declared void. The case may be different where the
purpose of the contract is illegal or immoral. In
Kedar Nath
Motani and others v. Prahlad Rai and others,
[1960] 1 S.C.R. 861 reversing the High Court and
restoring the decree passed by the trial court
declaring the appellants' title to the lands in suit
and directing the respondents who were the
appellants' benamidars to restore possession, this
Court, after discussing the English and Indian law
on the subject, said (at page 873):
"The correct position in law, in our opinion, is
that what one has to see is whether the illegality
goes so much to the root of the matter that the
plaintiff cannot bring his action without relying
upon the illegal transaction into which he had
entered. If the illegality be trivial or venial, as
stated by Willistone and the plaintiff is not
required to rest his case upon that illegality, then
public policy demands that the defendant should
not be allowed to take advantage of the position. A
strict view, of course, must be taken of the
plaintiff's conduct, and he should not be allowed to
circumvent the illegality by restoring to some
subterfuge or by mis- stating the facts. If, however,
the matter is clear and the illegality is not
required to be pleaded or proved as part of the
cause of action and the plaintiff recanted before
the illegal purpose was achieved, then, unless it be
of such a gross nature as to outrage the conscience
of the Court, the plea of the defendant should not
prevail." The types of contracts to which the
principle formulated by us above applies are not
contracts which are tainted with illegality but are
contracts which contain terms which are so unfair
and unreasonable that they shock the conscience
of the court. They are opposed to public policy and
require to be adjudged void."
‚In view of the aforesaid judgment, we find that
since the employee has no option but to give
undertaking so as to avail the benefit of pay-
fixation, it cannot be said to be voluntary act thus,
such undertaking cannot be made basis for
sustaining the recovery of Rs.87,354/-.
(12) Thus, merely submitting an undertaking by
an employee to claim the benefit does not entitle
the authorities to make an recovery on the basis of
an undertaking."
9. Thus in view of the aforesaid pronunciation, merely
submitting an undertaking by an employee to claim the benefits
either at that time or at the time of his retirement does not entitle the
authorities to make any recovery on the basis of said undertaking.
The petitioner has already retired after attaining the age of
superannuation on 31.01.2022. In such circumstances, recovery
from a retired employee i.e. Class-III employee is not permissible
as has been held by the Supreme Court in the case of Rafiq
Masih (supra). Thus, considering the over all facts and
circumstances of the case the impugned recovery is unsustainable
and is hereby quashed. The respondent authorities are directed to
refund the amount of Rs.2,56,255/- to the petitioner recovered, from
the petitioner along with interest at the rate of 6% from the date of
recovery. The respondents are further directed to release the
pension, gratuity and amount of GPF to the petitioner. The entire
exercise be completed with a period of two months from the date of
receipt of certified copy of this order.
11. Accordingly, the petition is allowed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
das
