Madhya Pradesh High Court
Rakesh Kumar Awasthy vs The State Of Madhya Pradesh on 31 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 31 st OF MAY, 2024
WRIT PETITION No. 15508 of 2024
BETWEEN:-
RAKESH KUMAR AWASTHY S/O LATE SHRI S.N.
AWASTHY, AGED ABOUT 65 YEARS, OCCUPATION:
RETIRED GOVERNMENT SERVANT 243 ADARSH
NAGAR GWARIGHAT ROAD (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAMRESH KATARE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
SECRETARY DEPARTMENT OF TECHNICAL
EDUCATION DEPARTMENT DISTRICT BHOPAL
(MADHYA PRADESH)
2. DIRECTOR DIRECTORATE OF TECHNICAL
EDUCATION ARERA HILLS, BHOPAL (MADHYA
PRADESH)
3. KALANIKETAN POLYTECHNIC JABALPUR
THROUGH ITS PRINCIPAL KALANIKETAN MARG,
SOUTH CIVIL LINES, JABALPUR (MADHYA
PRADESH)
4. GOVERNMENT POLYTECHNIC, DINDORI
THROUGH ITS PRINCIPAL AMARKANTAK ROAD,
MAHAVEER TOLA, GRAM KUNDA BICHHIYA
(MADHYA PRADESH)
5. DISTRICT TREASURY OFFICER COLLECTORATE
JABALPUR (MADHYA PRADESH)
6. PRINCIPAL ACCOUNTANT GENERAL (A AND E) II
MADHYA PRADESH GWALIOR INDIAN AUDIT
AND ACCOUNTS DEPARTMENT LEKHA BHAWAN
JHANSI ROAD, GWALIOR (MADHYA PRADESH)
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 6/1/2024
4:53:15 PM
2
.....RESPONDENTS
(BY SHRI DARSHAN SONI - GOVERNMENT ADVOCATE )
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition has been filed challenging the order of recovery
(Annexure P-7) and also a further direction is sought for early settlement of
retiral dues of petitioner who has retired on 30.11.2023 on attaining age of
superannuation.
2. The learned counsel for the petitioner submits that petitioner retired
as In-Charge Principal in Govt. Polytechnic College on 30.11.2023. Before his
retirement, certain advances were taken by him on different dates which were
pointed out to him by order (Annexure P-4) dated 28.07.2023 and he duly made
the said payments prior to retirement in September, 2023. It is the case of the
petitioner that despite having made these payments of advances, the
respondents have not settled the retiral dues of the petitioner. When he pressed
for settlement of retiral dues, then the respondents have now come up with
another order (Annexure P-7) whereby it has been pointed out that the
petitioner has taken advance salary in the year 2011 to the tune of Rs.43,587/-
but that amount has not been repaid by the petitioner till date. Hence, that
amount should be repaid with interest i.e. total amount of Rs. 1,17,384/- so that
necessary action can be taken for settlement of retiral dues of the petitioner.
3. Learned counsel for the petitioner further submits that in terms of
judgment of Hon'ble Apex Court in the case of State of Punjab and Ors. Vs.
Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334 recovery from
retired employee is bad in law and deserves to be quashed.
4. Per Contra, the learned State counsel submits that petitioner having
taken advance, is bound to refund the said amount and he cannot take the
benefit of judgment of Rafiq Masih (supra).
5. Heard the learned counsel for the parties and perused the record.
6. After hearing learned counsel for the parties, it is evident that
petitioner had taken advance salary in the year 2011 which was to be recovered
in equal installments. However, neither the recovery took place nor the petitioner
refunded the amount. Now the said amount is being demanded with interest. So
far as reliance on the judgment of Rafiq Masih (supra) is concerned, in para-
18 the Hon'ble Apex Court has 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) xxxx xxxx
(ii) xxxx xxxx
(iii) xxxx xxxx
(iv) xxxx xxxx
(v) xxxx xxxx"
(Emphasis Supplied)
7. Thus, the aforesaid judgment would apply only in those cases
where the payments have been mistakenly made by the employer in excess of
entitlement of the employee. It will not apply where the employee has
consciously taken some amount with clear understanding that the employee
would have to refund the amount. In the present case, the petitioner has taken
advance salary and it is not a case of erroneous or mistaken payment made to
the employee but is a case of conscious payment taken by the employee from
the employer in excess of his entitlement. Now the petitioner cannot take the
benefit of factum of his retirement to avoid the payment.
8. In view of the above, the challenge to recovery order (Annexure P-7)
is repelled and the petition so far as it relates to recovery order (Annexure P-7)
is concerned, is dismissed.
9. At this stage, learned counsel for the petitioner submits that
respondents have levied exorbitant interest on the amount. Even if the petitioner
had not refunded the amount, then the respondents could always have
recovered the amount from salary and the rate of interest charged is more than
12% and is even more than the interest paid on fixed deposit. The petitioner
was holding substantive post of Lecturer and he should not be saddled with
such exorbitant interest.
10. The prayer appears to be reasonable on the quantum of interest. It
is ordered that the respondents shall be entitled to recover the amount of
advance i.e. Rs.43,587/- with simple interest of 6% per annum.
11. So far as the prayer relating to non-payment of retiral dues is
concerned, it appears from the pleadings in petition that apart from the pending
recovery, there is no other just cause for delay in settlement of retiral dues. The
petitioner has already submitted a representation to the respondent No.3.
12. The Director Technical Education, Principal Kalaniketan
Polytechnic Jabalpur and District Treasury Officer, Jabalpur are directed to
dwell upon representation (Annexure P-10) in the matter of payment of retiral
dues and ensure settlement of all retiral dues due to the petitioner as per his
entitlement within a period of two months from the date of production of
certified copy of this order. In case there is a valid impediment, then petitioner
may be informed about the same. The recovery as proposed towards salary
advance may be adjusted from the final payment of retiral dues. The settlement
of retiral dues may not be delayed on account of pendency of recovery of
advance taken by the petitioner.
13. With the aforesaid directions, petition stands disposed of.
(VIVEK JAIN)
JUDGE
nks
