Madhya Pradesh High Court
Madanlal Vishwakarma vs The State Of Madhya Pradesh on 1 October, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 1 st OF OCTOBER, 2024
WRIT PETITION No. 16965 of 2024
MADANLAL VISHWAKARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anand Agrawal - advocate for the petitioner.
Shri Prakhar Trivedi - PL for State.
ORDER
The present petition is filed under Article 226 of the Constitution of
India challenging the refixation and consequential recovery of sum of
Rs.2,27,609/- (principal amount Rs.1,78,104 + interest of Rs.49,495/-
towards excess payment made. The petitioner retired from the post of Sub
Inspector on attaining the age of 62 years on 30.6.2022.
It is argued that the recovery after the retirement from the government
servant is illegal, arbitrary and contrary to the judgment passed by the Apex
Court in the case of State of Punjab Vs. Rafiq Masih. (2015) 4 SCC 334 . It
is further argued that there is no misrepresentation or fraud committed by the
petitioner in fixation of pay and, therefore, the respondents could not have
issued the said recovery.
Counsel for respondents submits that when the pension case of the
petitioner was processed, an objection was received that on account of wrong
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pay fixation, the petitioner has been paid the aforesaid amount. Counsel for
respondents further relied on an undertaking/consent letter submitted by the
petitioner dated 14.7.2022 in which he had given his consent that the excess
amount can be recoverable from the pension, gratuity and other retiral dues
of the petitioner.
I have heard learned counsel for parties and perused the record.
The Full Bench of this Court at Principal Seat, Jabalpur in identical
matters has quashed such recovery orders by judgment dated 06.03.2024
passed in Writ Appeal No.815 of 2017 (State of Madhya Pradesh & Anr. vs.
Jagdish Prasad Dubey & Anr.) and connected writ petitions reported in 2024
SCC OnLine MP 1567, it has been held in paragraph No.35 as under:-
"Answers to the questions referred
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
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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."
In view of the aforesaid, answer of the full Bench the recovery on the
basis of undertaking/indemnity bond the recovery cannot be made on the
earlier fixation of pay. Apart from that the recovery of the excess amount
paid as salary cannot be recovered from a retired Government servant.
Admittedly in the present case procedure for recovery prescribed under Rule
65 and 66 of Chapter VIII of M.P. Civil Services Pension Rules, 1976 are
not followed.
Counsel for the petitioner submits that the the recovery from the
petitioner cannot be made as there is no misrepresentation or fraud
committed by the petitioner in fixation of pay. He has relied on the judgment
passed by the Apex Court in the case of Shyam Babu Verma Vs. Union of
india, 1994(2) SCC 521, Sahib Ram Vs. State of Haryana , 1995 Supp (1)
SCC 18, Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417
and Syed Abdul Kadir Vs. State of Bihar, (2009) 3 SCC 475 and Yogeshwar
Prasad Vs. National Institute of Education Planning, (2010) 14 SCC 323.
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In view of the above, the impugned recovery order dated 2.11.2022
is hereby quashed. The amount, if any, recovered from the petitioner be
refunded to her along with interest at the rate of 6% per annum from the date
of recovery till date of payment. Let the same be done within a period of 3
months from the date of receipt of certified copy of this order. The pay
fixation of the petitioner is however maintained.
The petition is accordingly allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
