Madhya Pradesh High Court
Agni Prasad Kshatriya vs The State Of Madhya Pradesh on 30 May, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 30 th OF MAY, 2024
WRIT PETITION No. 1267 of 2019
BETWEEN:-
AGNI PRASAD KSHATRIYA S/O SHRI B.B. KSHATRIYA,
AGED ABOUT 63 YEARS, OCCUPATION: RETIRED AS
FORESTER O/O DIVISIONAL FOREST OFFICER (SOUTH
TERRITORIAL) FOREST DIVISION BALAGHAT
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY DEPARTMENT OF
FOREST MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. PRINCIPAL CHIEF CONSERVATOR OF FOREST
FOREST DEPARTMENT SATPURA BHAWAN
BHOPAL (MADHYA PRADESH)
3. DIVISIONAL FOREST OFFICER SOUTH
TERRITORIAL FOREST DIVISION DISTT.
BALAGHAT (MADHYA PRADESH)
4. DISTRICT PENSION OFFICER BALAGHAT DISTT.
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIJAY KUMAR SHUKLA - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Challenge in the present petition is made to recovery order from the retiral
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dues of the petitioner vide Annexure P-1 to the tune of Rs. 1,58,152/. The
petitioner is a retired Forester and the excess payment has been ordered from
the retiral dues of the petitioner.
2. Learned counsel for the petitioner while assailing the aforesaid
recovery has placed reliance on the judgment of the Hon'ble Apex Court in the
case of Rafiq Masih Vs. State of Punjab and others 2015 (1) MPHT 130
(SC). It is contended that the recovery has been ordered for excess payment,
which was made during the course of service period of the petitioner and it was
not on account of any fraud or misrepresentation on part of the petitioner. It is
further contended that the petitioner was Forester, which is a Class - III post
and as per the aforesaid judgment of the Hon'ble Supreme Court such
recoveries from Class - III/IV employees are bad-in-law and thus, the said
recovery deserves to be set aside.
3. In the present case, the reply of the State makes it evident that the
wrongful fixation was carried out in the year 1989. It may be true that this
wrongful fixation might be having cascading effect throughout the service career
of the petitioner, but the fact remains that the wrongful fixation, which is sought
to be corrected and recovery ordered as a consequence was carried out in the
year 1989.
4. As per the reply filed by the State, it is pleaded that at the time of
preparation of pension and gratuity papers of the petitioner at the time of
retirement it was found that while granting the benefit of revision of pay in 1989,
there was wrongful fixation of pay at higher side. Thus, on that account
objection was raised by District Pension Officer and recovery was ordered of
the excess payment that was erroneously made. The State has also relied on
undertaking and Indemnity bond annexed with the reply.
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5. Upon hearing the parties it is seen that the petitioner has retired from
service on 31.03.2016. The recovery ordered against the petitioner relates to
wrongful fixation carried out in the year 1989 as apparent from reply. The
indemnity bond has been submitted by the petitioner in the year 2017 i.e. after
retirement which is at the time of settlement of retiral dues. There is no
undertaking on record taken at the time of wrongful fixation carried out in the
year 1989, but was taken at time of revision under VII Pay Commission w.e.f
01.01.2016. Thus, in the opinion of this Court, the indemnity bond and
undertaking given by the petitioner in the year 2017 & 2018 is of no
consequence to justify the recovery in the present case.
6. So far as the other contentions raised by the State, i.e. Rule 65 of M.P.
Civil Services Pension Rules is concerned, all these aspects have been recently
considered by Full Bench of this Court in W.A. No.815/2017 vide judgment
dated 06.03.2024. The Full Bench had the occasion to consider the following
questions:-
"1. Whether the recovery can be ordered to be affected
from the pensionary benefits or from the salary in view of
an undertaking or Indemnity Bond taken by the employer
before the grant of benefit of pay refixation.
2. Whether the recovery on account of excess payment to
an employee can be made in exercise of power conferred
under Rule 65 of M.P Civil Services Pension Rules, 1976.
3. Whether the undertaking sought at the time of grant of
financial benefits on account of refixation of pay is a
forced undertaking and thus not enforceable in light of
judgment of Supreme Court in (1986) 3 SCC 136 (Central
Inland Water Transport Corporation Limited and Another
Vs. Brojo Nath Ganguly and Another)
4. Any other question which is raised for decision before
the Larger Bench or which the Larger Bench considers
arising out of the issues canvased."
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7. After exhaustive consideration of the entire law on the subject, the Full
Bench has answered the aforesaid questions in the following manner:-
"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.
8.Thus, in view of the law settled by the Full Bench as well as in the light
of the judgment of Hon'ble Apex Court in the case of Rafiq Masih (supra),
the impugned recovery cannot be given stamp of approval, even in terms of
Rule 65 of M.P. Civil Services Pension Rules. The State has not come out with
any plea that procedure contemplated under chapter VIII of Pension Rules has
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been followed.
9. Consequently, the petition is allowed a n d the recovery of Rs.
1,58,152/- as ordered vide Annexure P-1 as noted in the PPO is set aside. If the
amount has already been recovered, the same shall be refunded to the petitioner
within three months from the date of production of certified copy of this order,
failing which the amount shall carry interest @ 8% per annum from the date of
this order till actual payment.
(VIVEK JAIN)
JUDGE
MISHRA
