Prahladsingh Tomar vs Home Department (Police)
2024 Latest Caselaw 13366 MP

Madhya Pradesh High Court

Prahladsingh Tomar vs Home Department (Police) 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. 4535 of 2017

                           BETWEEN:-
                           PRAHLADSINGH        TOMAR     S/O
                           RAMSINGHJI, AGED ABOUT 61 YEARS,
                           OCCUPATION:      RETIRED    GOVT.
                           SERVICE 12, GOVARDHANRAM NAGAR,
                           FREEGANJ,      UJJAIN    (MADHYA
                           PRADESH)
                                                                                 .....PETITIONER
                           (SHRI ANAND AGRAWAL, ADVOCATE)

                           AND
                              HOME    DEPARTMENT     (POLICE)
                              PRINCIPAL           SECRETARY
                           1.
                              MANTRALAYA BHOPAL (MADHYA
                              PRADESH)
                              DIRECTOR GENERAL OF POLICE
                           2. THE STATE OF MADHYA PRADESH
                              PHQ BHOPAL (MADHYA PRADESH)
                              DISTRICT TREASURY OFFICER, THE
                           3. STATE   OF   MADHYA   PRADESH
                              INDORE (MADHYA PRADESH)
                              DIVISION PENSION OFFICER THE
                           4. STATE   OF   MADHYA   PRADESH
                              INDORE (MADHYA PRADESH)
                                                                               .....RESPONDENTS
                           ( MS.HARSHLATA SONI , GOVT. ADVOCATE)

                                 This petition coming on for order this day, the court passed

                           the following:




Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 20-05-2024
11:54:18
                                                              2




                                                          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 challenged the order of recovery and re-fixation orders dated 9.3.2017 (Annexure P-1), 17.11.2016 (Annexure P-2) and 18.1.2017 (Annexure P-3) by which recovery of Rs.4,29,045/- (Rs.2,42,502/- Principal Amount and Rs.1,86,543/- interest) has been ordered to be recovered.

2. The brief facts of the case are that the petitioner was working as Deputy Superintendent of Police and he retired from the service on 31.7.2016. The recovery and refixation has been done by withdrawing earlier pay fixation and an amount of Rs.4,29,045/- and the same has been deducted from the gratuity, as reflected from the pension cover sheet dated 09.03.2017 (Annexure P-1).

3. On perusal of the impugned order dated 9.3.2017 (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, Indore. The recovery statement also shows that the recovery was ordered due to wrong fixation. It is also an admitted position that impugned recovery has been ordered after the retirement of the petitioner.

4. 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 no undertaking was given by him to that effect but an indemnity bond was filed by the respondent on 18.7.2016 (Annexure R-8) which is not an undertaking and even otherwise it was given on 18.7.2016 which is just few days before his retirement on 31.7.2016. 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.

5. 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."

6. Learned counsel for the petitioner has also submitted that in a writ appeal filed by the State, the Division 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.

7. 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.

8. Heard learned counsel for the parties.

9. As per Rafiq Masih (Supra) the recovery cannot be 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 1996, which is not permissible.

10. 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 9.3.2017 (Annexure P-1), 17.11.2016 and 18.1.2017 (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. 4,29,045/- alongwith interest @ 6% per annum from the date of recovery, till the date of re-payment to the petitioner.

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

Certified copy as per rules.

(SUBODH ABHYANKAR) JUDGE

das