Madhya Pradesh High Court
Niranjan Singh Pal vs The State Of Madhya Pradesh on 10 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 10 th OF MAY, 2024
WRIT PETITION No. 651 of 2024
BETWEEN:-
NIRANJAN SINGH PAL S/O SHRI RAMESH CHANDRA
PAL, AGED ABOUT 62 YEARS, OCCUPATION: RETD. P.T.I
(PHYSICAL TRAINING INSTRUCTOR) MANGRUL ROAD
SAKET NGAR GALI NO. 2 KHARGONE DISTRICT
KHARGONE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIJAY KUMAR PATWARI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY TRIBAL AFFAIRS DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. COMMISSIONER TRIBAL AFFAIRS DEPARTMENT
SATPURA BHAWAN, BHOPAL (MADHYA
PRADESH)
3. ASSISTANT COMMISSIONER TRIBAL AFFAIRS
D EPARTM EN T KHARGONE, DIST. KHARGONE
(MADHYA PRADESH)
4. PRINCIPAL DEVI AHILYA H.S. SCHOOL NO. 2
KHARGONE DIST. KHARGONE (MADHYA
PRADESH)
5. DISTRICT PENSION OFFICER TREASURY
ACCOUNTS AND PENSION DEPARTMENT
KHARGONE, DIST. KHARGONE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUDARSHAN JOSHI - ADVOCATE)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 5/14/2024
5:33:50 PM
2
following:
ORDER
1 . This writ petition has been preferred under Article 226 of the
Constitution of India by the petitioner, who was posted as PTI against the order
of recovery of a sum of Rs.1,55,313/- on account of wrong fixation of pay in
the year 2006.
2. The petition has been filed on the ground that the recovery has been
made after lapse of a considerable number of years of alleged wrong fixation
and the petitioner has already retired on 31.10.2023 whereas the fixation was
done in the year 2006.
3. Learned counsel for the petitioner has submitted that the petitioner had
not given any undertaking at the time of his retirement that the amount can be
recovered from him. The undertakings which have been relied upon by
respondents are of the year 1996 and 2016. The petitioner has retired in 2023
and the alleged wrong pay fixation was done in the year 2006. There is hence no
undertaking furnished by the petitioner at the time when the benefit of revision
of pay-scale was granted to him. Even otherwise the case of the petitioner is
squarely covered by the order passed by the Apex Court in the case of State of
Pujab V/s. Rafiq Masih (white washer) & Ors. reported as (2015) 4 SCC
4. Per contra, learned counsel for the respondents has submitted that the
petitioner was paid excess salary on account of his wrong pay fixation and he
continued to receive the same till his retirement after which the mistake has been
discovered and recovery has been directed against him. He had furnished
undertakings during his life time for making payment of excess salary hence the
same are enforceable upon him in view of which the petition deserves to be
dismissed.
5 . I have heard the learned counsel for the parties and perused the
record.
6. 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
paym ent 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
ef f ect 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."
7. In the present case also the undertakings which have been furnished by
the petitioner are of the year 1996 and 2016. There is no undertaking produced
by the respondents either of the period when the revision of pay was made in
favour of the petitioner or at the time when he superannuated. The undertakings
of the year 1996 and 2016 hence are not applicable to the facts of the present
case since they were not furnished by the petitioner at the time of revision of
pay-scale.
8 . Further more in Rafiq Masih (supra) the Apex court has laid down
the guidelines when recovery from a retired employee would be permissible. 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
hav e 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."
9. In the present case also the petitioner is a Class III employee and the
recovery is being made from him after his retirement and for a period in excess
of five years from the date of his retirement. His case is hence squarely covered
by the decision of the Apex Court in Rafiq Masih (supra).
10. Consequently, the petition deserves to be and is accordingly allowed.
The impugned order Annexure P/3 dated 19/12/2023 directing for recovery of a
sum of Rs.1,55,313/- from the petitioner is quashed. The amount, if any,
recovered from the petitioner be paid to him within a period of two months
from the date of receipt of certified copy of this order along with interest at 6%
per annum from the date of recovery till date of payment. The pay fixation of
the petitioner is however maintained.
11. Since the recovery order has been quashed, the respondents would
be well advised to make payment of the retiral dues of the petitioner to him to
which he is entitled.
(PRANAY VERMA)
JUDGE
SS/-
