Madhya Pradesh High Court
Kanhaiya Lal Nayak vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 30 th OF MAY, 2024
WRIT PETITION No. 17243 of 2022
BETWEEN:-
KANHAIYA LAL NAYAK S/O SHRI PRABHU DAYAL
NAYAK, AGED ABOUT 63 YEARS, OCCUPATION: RTD.
ASSISTANT TEACHER GOVERNMENT MIDDLE SCHOOL
HARDUA SADAK BLOCK JABERA SANKUL NOHATA
DISTRICT DAMOH M.P. VILLAGE AND POST HARDUA
SADAK TEHSIL JABERA DISTRICT DAMOH (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI D.K. KHARE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
SECRETARY SCHOOL EDUCATION SOCIETY
MANTRALAYA VALLABH BHAWAN BHOPAL,
(MADHYA PRADESH)
2. DISTRICT EDUCATION OFFICER, DAMOH
DISTRICT DAMOH (MADHYA PRADESH)
3. PRINCIPAL, GOVT. MIDDLE SCHOOL HARDUA
SADAK, BLOCK JABERA, DISTRICT DAMOH
(MADHYA PRADESH)
4. BLOCK EDUCATION OFFICER, TEHSIL JABERA
DISTRICT DAMOH (MADHYA PRADESH)
5. DISTRICT PENSION OFFICER, TREASURY AND
A C C O U N T S DISTRICT DAMOH (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AKASH MALPANI - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: LORETTA RAJ
Signing time: 5/30/2024
4:15:51 PM
2
following:
ORDER
This petition has been filed seeking the following reliefs -
"(i) To call for the relevant records pertaining to instant controversy
for its kind perusal of this Hon'ble Court.
(ii) To issue an appropriate writ commanding the respondents
department to pay the recovery amount of Rs.1,92,756/- deducted from
the gratuity of petitioner along with 18% interest considering well-
being of petitioner, in the interest of justice.
(iii) Any other relief/reliefs may also be awarded in favour of the
petitioner.
(iv) Cost of the petition may also kindly be awarded."
2. The record indicates that the petitioner stood retired from the post of
Assistant Teacher on 31.08.2024 and after his superannuation, the recovery
order dated 17.03.2022 has been passed whereby recovery of Rs.1,92,756/-
was ordered. It is submitted that the recovery has been ordered by the
respondent-authority towards the excess payment made to the petitioner along
with interest.
3. The learned State counsel has submitted that if representation is submitted
by the petitioner to the concerning authorities, they will consider the grievance
of the petitioner and settle the dispute in the light of a Full Bench decision of
this Court in a reference in Writ Appeal No.815 of 2017 (State of M.P. and
others vs Jagdish Prasad Dubey) dated 06.03.2024.
4. A Full Bench of this Court in the case of State of M.P. and others vs
Jagdish Prasad Dubey (supra) while dealing with the issue as to recovery after
retirement, has held as follows :
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
(supra) unless the undertaking is given voluntarily.
5. I n view whereof, and on hearing the contentions, this Court deems it
appropriate to dispose off the writ petition by directing the petitioner to file a
representation in this regard within a period of 15 days from the date of receipt
of certified copy of this order to the respondent No.4 who, in turn, is directed
to decide the same within a period of 45 days in the light of Full Bench decision
of this Court in the case of State of M.P. and others vs Jagdish Prasad Dubey
(supra).
6. Till the decision is taken by the authorities, no recovery will be made from
the petitioner. The impugned order dated 17.03.2022 is quashed. Let a fresh
decision be taken by the respondent No.4 on the representation of the petitioner
in the light of the observations made in the Full Bench decision of this Court in
the case of State of M.P. and others vs Jagdish Prasad Dubey (supra).
7. With these observations, the petition is disposed off finally. No order as to
costs.
(VISHAL MISHRA)
JUDGE
LR
