Madhya Pradesh High Court
Shivnarayan vs Home Department on 16 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 16 th OF MAY, 2024
WRIT PETITION No. 20780 of 2019
BETWEEN:-
SHIVNARAYAN S/O SHRI BHERULAL JI VYAS,
(LOKAYUKT ORGANIZATION) OFFICE OF
SUPERINTENDENT OF POLICE, DEWAS (MADHYA
PRADESH)
.....PETITIONER
(MS. ANJALI JAMKHEDKAR - ADVOCATE)
AND
1. HOME DEPARTMENT, PRINCIPAL SECRETARY,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF POLICE, HOME
DEPARTMENT, BHOPAL (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE, HOME
DEPARTMENT, UJJAIN ZONE, UJJAIN (MADHYA
PRADESH)
4. SUPERINTENDENT OF POLICE, HOME
DEPARTMENT, DEWAS (MADHYA PRADESH)
5. DISTRICT PENSION OFFICER DIRECTORATE OF
PENSION, DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(MR. TARUN KUSHWAH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been
preferred by the petitioner against the orders dated 24.07.2019 and 09.09.2019
passed by respondents, whereby a total sum of Rs.22,17,391/- (which includes
principal as well as interest amount) has been directed to be recovered on
account of excess amount.
02. The petitioner is working as Lower Division Clerk (Assistant Sub
Inspector (M)) since 1982. He is thus a class III employee. From perusal of the
impugned orders, it appears that recovery has been directed to be made from
him due to wrong pay fixation.
03. The Full Bench of this Court in Principal Seat Jabalpur in identical
matters has quashed such recovery orders vide judgment dated 06.03.2024
passed in Writ Appeal No.815/2017 (State of M.P. & Ors. V/s. Jagdish
Prasad Dubey) and other connected petitions reported in 2024 (2) MPLJ
198. The relevant paragraph of the said judgment is reproduced below:-
"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."
04. In view of the decision of the Full Bench as aforesaid, the undertaking
which has been furnished by the petitioner at the time of grant of benefit of pay
fixation to him in the year 1983 is also required to be considered in light of the
judgment of Hon'ble the Apex Court in the matter of State of Punjab and
Others Vs. Rafiq Masih (white washer) and Others, 2015 4 SCC 334 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
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 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."
05. In the present case also, the recovery which is being made is from a
Class-III employee. The same is being made for a period in excess of five years
from the date of order of recovery and at the fag end of the service career. It is
being made after 35 years from the date when the pay fixation was done and has
not been done immediately. There has not been any misrepresentation on part
of the petitioner in the matter of his pay fixation. The mistake, if any, is of the
respondents themselves for which petitioner cannot be blamed. The recovery
being made from the petitioner is hence illegal.
06. In view of the above, the impugned orders dated 24.07.2019 and
09.09.2019 are hereby quashed. The amount, if any, recovered from the
petitioner be refunded to him along with interest @ 6% per annum from date of
recovery till date of payment within a period of 90 days from the date of
production of certified copy of this order. The pay fixation of the petitioner is
however maintained.
07. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
Anushree
