Madhya Pradesh High Court
Shankarlal vs The State Of Madhya Pradesh on 14 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 14 th OF MAY, 2024
WRIT PETITION No. 24393 of 2023
BETWEEN:-
SHANKARLAL S/O NANURAM PARMAR, AGED ABOUT
63 YEARS, OCCUPATION: SEVANIVRATT SAHAYAK UP
NIRIKSHAK R/O:16 B, KRISHNA ENCLAVE,
PANCHDERIYA, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY MS. PALAK JOSHI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH AVAR SACHIV
GRIH VIBHAG MANTRALAY VITT VIBHAG
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. SHRIMAN POLICE UPAYUKT MAHODAY POLICE
MUKHYALAYA, RANI SARAY, INDORE (MADHYA
PRADESH)
3. SHRIMAN POLICE COMMISSIONER MAHODAY
INDORE (MADHYA PRADESH)
4. SAMBHAGIYA / JILA PENSION ADHIKARI
COLLECTORATE CAMPUS, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI TARUN KUSHWAH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
By this petition preferred under Article 226 of the Constitution of India,
the petitioner has challenged the order dated 30.09.2022 (Annexure P/5) passed
by respondents, whereby recovery in the sum of Rs.5,46,174/- (which includes
principal amount as well as interest amount) has been made from him.
02. The petitioner has retired from the post of Assistant Sub Inspector.
From a perusal of the impugned order, it appears that recovery has been made
from him due to wrong pay fixation after his retirement. The petitioner was not
at any fault in the matter of his pay fixation and no misrepresentation was made
by him in that behalf. The fault, if any, was entirely of the respondents. It is
hence submitted that the impugned recovery against the petitioner be quashed.
03. Per contra, learned counsel for the respondent/State has submitted
that on account of wrong pay fixation, the petitioner has received excess salary.
The said mistake has been discovered at the time of retirement of the petitioner
hence the impugned recovery has been directed against him in which there is no
illegality. The petitioner had also furnished an undertaking. The petition hence
deserves to be dismissed.
04. I have considered the rival submissions and have perused the record.
05. 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:-
"Answers to the questions referred
35.(a) Question No.1 is answered by holding that recovery can be
effected from the pensionary benefits or from the salary based on
the undertaking or the indemnity bond given by the employee
before the grant of benefit of pay refixation. The question of
hardship of a Government servant has to be taken note of in
pursuance to the judgment passed by the Larger Bench of the
Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra).
The time period as fixed in the case of Rafiq Masih (supra)
reported in (2015) 4 SCC 334 requires to be followed.
Conversely an undertaking given at the stage of payment of retiral
dues with reference to the refixation of pay or increments done
decades ago cannot be enforced.
(b) Question No.2 is answered by holding that recovery can be
made towards the excess payment made in terms of Rules 65 and
66 of the Rules of 1976 provided that the entire procedures as
contemplated in Chapter VIII of the Rules of 1976 are followed by
the employer. However, no recovery can be made in pursuance to
Rule 65 of the Rules of 1976 towards revision of pay which has
been extended to a Government servant much earlier. In such
cases, recovery can be made in terms of the answer to Question
No.1.
(c) Question No.3 is answered by holding that the undertaking
given by the employee at the time of grant of financial benefits on
account of refixation of pay is a forced undertaking and is therefore
not enforceable in the light of the judgment of the Hon'ble Supreme
Court in the case of Central Inland Water Transport Corporation
Limited and Another vs. Brojo Nath Ganguly and Another,
reported in (1986) 3 SCC 136 unless the undertaking is given
voluntarily."
06. Thus, in view of the aforesaid decision, the undertaking submitted by
the petitioner would not be the only consideration and the principles as laid
down in State of Punjab and Others Vs. Rafiq Masih (white washer) and
Others, 2015 4 SCC 334 are also required to be considered in which 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
have 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."
0 7 . In the instant case also, the recovery is being made from the
petitioner, who is a Class-III employee and after his retirement and for a period
in excess of five years from the date of his retirement. The said recovery is
hence not sustainable in view of the law laid down in the case of Rafiq Masih
(supra).
08. In view of the above, the impugned order dated 30.09.2022
(Annexure P/5) passed by the respondents is hereby quashed. The amount
recovered from the petitioner be refunded to him alongwith interest @ 6% per
annum from the date of recovery till date of payment. Let the same be done
within a period of three months from the date of receipt of certified copy of this
order. The pay fixation of the petitioner is however maintained.
09. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
Shilpa
