Madhya Pradesh High Court
Anoop Shrivastava vs Home Department on 22 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 22 nd OF MAY, 2024
WRIT PETITION No. 9930 of 2019
BETWEEN:-
ANOOP SHRIVASTAVA S/O LATE SHRI BADRIPRASAD,
AGED ABOUT 61 YEARS, OCCUPATION: SERVICE (HEAD
CLERK) HOUSE NO. 22, SAHYOG COLONY, BNP ROAD,
DEWAS (MADHYA PRADESH)
.....PETITIONER
(MS. ANJALI JAMKHEDKAR, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. HOME DEPARTMENT PRINCIPAL SECRETARY
VALLABHA BHAWAN BHOPAL (MADHYA
PRADESH)
2. DIRECTOR GENERAL OF M.P. BHOPAL (MADHYA
PRADESH)
3. INSPECTOR GENERAL OF POLICE UJJAIN ZONE,
UJJAIN (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE DEWAS (MADHYA
PRADESH)
5. DISTRICT PENSION OFFICER, DEWAS (MADHYA
PRADESH)
.....RESPONDENTS
( MS. HARSHLATA SONI, GOVT. ADVOCATE)
T h is petition coming on for order this day, t h e cou rt passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been
preferred by the petitioner against the order dated 21.2.2019 passed by
respondent no.4, whereby a total sum of Rs.29,67,672/- (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 1981. He is thus a class III employee. From perusal of the
impugned order, 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 1981 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 34 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 order dated 21.2.2019 is 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.
07. The petition is accordingly allowed and disposed off.
(SUBODH ABHYANKAR)
JUDGE
das
