Milankrishna Pal vs Public Health And Family Welfare ...
2024 Latest Caselaw 13363 MP

Madhya Pradesh High Court

Milankrishna Pal vs Public Health And Family Welfare ... 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. 6205 of 2017

                           BETWEEN:-
                           MILANKRISHNA PAL S/O NAGENDRAJI
                           OCCUPATION: RETIRED 84, LABOUR
                           COLONY,   BALGANJ  ROAD, DEWAS
                           (MADHYA PRADESH)
                                                                                 .....PETITIONER
                           (SHRI ANAND AGRAWAL, ADVOCATE)

                           AND
                              PUBLIC   HEALTH   AND    FAMILY
                              WELFARE DEPARTMENT PRINCIPAL
                           1.
                              SECRETARY    VALLABH    BHAWAN,
                              BHOPAL (MADHYA PRADESH)
                              CHIEF   MEDICAL   AND   HEALTH
                           2. OFFICER THE STATE OF MADHYA
                              PRADESH DEWAS (MADHYA PRADESH)
                              DISTRICT PENSION OFFICER THE
                           3. STATE OF MADHYA PRADESH DEWAS
                              (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 filing the present writ petition under Article 226 of

Constitution of India, the petitioner has sought the following relief:

"A. Quashing the recovery order, refixation orders (P/1) so far as it relates to the recovery and refixation is concern.

B. To quash the recovery order Annexure P/2 dated 30.9.2016.

C. Direct the respondents to refund the recovered amount of Rs.3,34,712/- to the petitioner along with the interest and exemplary cost.

D. The respondents may kindly be directed to issue the revised pension order and grant the pension gratuity to the petitioner on the basis of the earlier pay fixation without any recovery.

E. Any other writ, direction or order that the justice of this case may require."

2. The petitioner has challenged the order of recovery and re- fixation orders dated 16.11.2016 (Annexure P-1), and 30.9.2016 (Annexure P-2) by which recovery of Rs.3,34,712/- (Rs.2,22,162/- Principal Amount and Rs.1,12,550/- interest) has been ordered to be recovered.

3. The brief facts of the case are that the petitioner's wife, who was working as Mahila Swasth Karyakarta was granted the time bound pay scale after completion of 30 years of service vide order dated 13.7.2016 (Annexure P-3). The petitioner's wife expired during service on 21.2.2016, after completion of near about 31 years service. The recovery and refixation has been done by

withdrawing earlier pay fixation and an amount of Rs.3,34,712/- and the same has been deducted from the gratuity, as reflected from the pension cover sheet dated 16.11.2016 (Annexure P-1).

4. On perusal of the impugned order dated 16.11.2016 (Annexure P/1), it reveals that the order of recovery and re-fixation has been issued due to the objections taken by the District Pension Officer, Dewas. The recovery statement also shows that the recovery was ordered due to wrong fixation w.e.f. 2006. It is also an admitted position that impugned recovery has been ordered after the death of the petitioner.

5. Learned counsel for the petitioner has submitted that the wife of the petitioner was also granted the benefit of third time bound pay scale w.e.f. 1.4.2015 vide order 13.7.2016(Annexure P-3), but the payment has not been paid to the petitioner husband.

6. Learned counsel for the petitioner submits that the earlier pay fixation was done in accordance with law and there is no illegality committed by the respondents. Only because of objection from the Pension Officer, the impugned order has been passed. Learned counsel for the petitioner further contended that the petitioner was not at fault at any point of time.He placed reliance on the judgment of Apex Court in the case of M.P. Medical Officers Association vs. State of M.P. and others passed in Civil Appeal No.5527/2022 vide judgment dated 26/08/2022 wherein the Apex Court has quashed

the recovery of excess amount and has directed to refund the entire amount which was recovered from the employees who were in service.

7. Learned counsel for the petitioner has submitted that in an identical case a single bench of this Court in Writ petition No. 3926/2016 dated 23rd August 2023 had allowed the petition of the petitioner against which the State had filed writ appeal No2328/2023 and the by the Division Bench of this Court in the case of State of M.P vs. KU. YASHEE TIWARI vide order dated 4.4.2024 has dismissed the writ appeal, affirming the order passed by the single bench.

8. Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) etc. (2015) 4 SCC 334 has held as under :-

''12. 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 decision referred to herein 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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from the retired employees, or 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."

9. 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) 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."

10. On the other hand, learned Panel Lawyer for the respondents/State has opposed the prayer and submitted that the recovery has been ordered on the objection raised by District Pension Officer, Dewas for the amount for which petitioner is not

entitled. He also submitted that the petitioner's wife has given the undertaking on 5.6.1998 (Annexure R-2), and therefore, the recovery is justified.

11. Heard learned counsel for the parties.

12. As per Rafiq Masih (Supra) the recovery cannot be effected for the excess of payment which has been made for the period in excess of five year. In the present case, the recovery is being effected from the year 2006, which is not permissible.

13. In view principles laid down in case of Rafiq Masih (Supra) and Jagdish Prasad Dubey (Supra), the impugned order of recovery and refixation dated 16.11.2016 (Annexure P-1), and 30.9.2016 (Annexure P-2) so far as it relates to recovery is concerned are hereby quashed and set aside. The respondents are directed to refund the sum of Rs.3,34,712/- alongwith interest @ 6% per annum from the date of recovery, till the date of re-payment to the petitioner's husband.

14. Accordingly, petition stands allowed to the extent indicated hereinabove. No order as to costs.

Certified copy as per rules.

(SUBODH ABHYANKAR)

JUDGE

das