Madhya Pradesh High Court
Gulabsingh Mandloi 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. 21107 of 2017
BETWEEN:-
GULABSINGH MANDLOI S/O
AMARSINGH, AGED ABOUT 61 YEARS,
BLOCK COLONY GANDHWANI (MADHYA
PRADESH)
.....PETITIONER
(SHRI ANAND AGRAWAL, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
PRINCIPAL SECRETARY GOVT. OF M P
1.
MANTRALYA VALLABH BHAWAN,
(MADHYA PRADESH)
CHIEF EXECUTIVE OFFICER
2. DISTRICT PANCHAYAT INDORE
(MADHYA PRADESH)
DISTRICT PENSION OFFICER,
3. TREASURY,ACCOUNTS AND PENSION
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 filing the present writ petition under Article 226 of
Constitution of India, has sought the following relief:-
"A. Quashing the order dated 25/11/2017
and 9/2/2017 (P/1 and P/2)
B. Respondents may kindly be directed to
grant the pension, gratuity and other
retiral benefits as granted to the petitioner
prior to the recovery orders and refixation
orders along with arrears.
C. Respondents may kindly be direted to
make the payment as per the order
dt.18/5/15 (Annexure P/7) along with
arrears and interest.
D. The respondents may kindly be
directed to make the payment of leave
encashment amount, Insurance amount
and pension, Gratuity along with arrears
to the petitioner.
B. 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 dated 25.11.2017 (Annexure-P/1) and order dated
9/2/2017(Annexure P/2) by which recovery of Rs.18,69,037/-
(Rs.11,96,110/- principal amount and Rs.6,72,927/- interest
thereof), has been ordered to be recovered.
3. The brief facts of the case are that the petitioner was working
as Assistant Director, District Panchayat Indore Division District
Indore and retired from service on 31.3.2017. The recovery and
refixation has been done vide order dated 9.2.2017 and 25.11.2017.
4. On perusal of the impugned orders dated 9.2.2017 and
25.11.2017 it reveals that the order of recovery and re-fixation has
been issued due to the objections taken by the District Pension
Officer, Indore. The recovery statement also shows that the
recovery was ordered due to wrong fixation w.e.f. 1999. It is also an
admitted position that impugned recovery has been ordered after the
retirement of the petitioner.
5. 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 and the under taking produced by
the respondent (annexure R-2) onwards not pertains to the period
for which the recovery is being done. 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 and also on judgment of this Court
reported in 2022 (2) MPWN 32.
6. 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."
7. Learned counsel for the petitioner has also submitted that in a
writ appeal filed by the State, the coordinate Bench of this Court in
W.A.No.22/2023 vide order dated 18.4.2023 (State of M.P. and
others Vs. Dr. Shri Prakash Chaturvedi and others) has dismissed
the writ appeal filed by the State, in view of the principles laid
down in the case of M.P. Medical Officers Association Vs. State of
M.P. and others passed in Civil Appeal No.5527/2022 vide
judgement dated 26.8.2022 and also Rafiq Masih (White Washer)
and has ordered the respondents to refund the recovery amount
along with interest @ 6% per annum from the date of recovery till
the date of recovery.
8. 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, for the amount for which petitioner is not entitled.
A reply to the petition has also been traversing averment made in
the petition, however, it is found that the respondents are totally
silent regarding the claim of the petitioner of III time bound which
has already been accorded to the petitioner vide order dated
18.5.2015.
9. Heard learned counsel for the parties.
10. As per Rafiq Masih (Supra) the recovery cannot effected from
a retired employee. Secondly, 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 1999, which is not permissible.
11. In view principles laid down in case of Rafiq Masih (Supra)
and M.P. Medical Officers Association (Supra), the impugned
order of recovery and refixation dated 25.11.2017 amd 9.2.2017 is
hereby quashed and set-aside. The respondents are directed to
refund the sum of Rs. 18,69,037/- alongwith interest @ 6% per
annum from the date of recovery, till the date of re-payment to the
petitioner.
12. As the petitioner was already granted III Time Bound Pay
Scale after completion of 30 years service by order dated 18/5/2015
(Annexure P/7) in the pay scale of Rs.15600-39100+6600 Grade
Pay by the State Government, the respondents are directed to make
the payment of this time bound pay scale. The same be done within
a period of three months from the date of receipt of this Copy.
13. Accordingly, petition stands allowed to the extent indicated
hereinabove.
12. No order as to costs.
Certified copy as per rules.
(SUBODH ABHYANKAR)
JUDGE
das
