Madhya Pradesh High Court
Savita Mehto vs The State Of Madhya Pradesh on 4 April, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:16650
1 WA-2278-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 4 th OF APRIL, 2025
WRIT APPEAL No. 2278 of 2024
SAVITA MEHTO
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shankar Dayal Mishra - Advocate for Appellant.
Shri Piyush Jain - Government Advocate for Respondents/State.
ORDER
Per: Justice Vinay Saraf
1. The appellant has preferred the instant intra court appeal being
dissatisfied with the order passed by learned Single Judge, whereby the
petition preferred by the appellant was dismissed to the extent that the
recovery of principal amount component was upheld, whereas the interest
component was quashed.
2. With the consent of the parties, arguments heard for the purpose of
final disposal of the case.
3. The short facts of the case are that the husband of the appellant late
Shri Pramod Kumar Mehto was holding the post of Head Constable and
posted in the office of Director General of Police, Range Bhopal (Urban)
Bhopal. The husband of the appellant died on 22.12.2018 due to illness and
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when his widow i.e. the present appellant applied for payment of death
benefits and family pension etc., at the time of issuance of PPO dated
03.02.2021, the respondent department initiated recovery of Rs.21,69,036/-
comprising Rs. 14,27,155/- towards principal recoverable amount and
Rs.7,41,881/- towards interest on the basis of reassessment of the salary paid
to the deceased husband of the appellant. The appellant challenged the action
of the respondent department in WP No.25666/2023, which was dismissed
by order dated 03.07.2024 therefore, the present appeal has been preferred.
4. Learned counsel for appellant submits that the action of recovery of
amount Rs.21,69,036/- by the respondent department on the ground that the
deceased husband of the appellant was wrongly paid the amount is erroneous
and contrary to the settled position of law that no such amount can be
recovered either at the time of superannuation of the employee or from the
amount payable to the legal heirs of the employee. He further submits that
due to prolonged ailment of late Shri Pramod Kumar Mehto before he
succumbed to the illness on 22.12.2018, the period of 1007 days was
declared to be leave without pay on 13.02.2018 and the department has
initiated the recovery of the amount of salary paid to the deceased during the
said period. He further submits that the second ground of recovery was
communicated by the department that the husband of the appellant was
punished in a departmental enquiry with reduction of one increment with
cumulative effect, but the department kept on making payment to him with
increased increment without implementation of the order of punishment
dated 13.12.2011. He further submits that the alleged erroneous payment was
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not made to the deceased husband of the appellant on account of any
misrepresentation or miscommunication by the employee and he was not
liable for alleged erroneous payment. He further submits that after the death
of the employee, the said amount cannot be recovered from the death
benefits payable to the widow of the employee and, therefore, the action of
the respondent department is contrary to the settled position of law. He relied
on the judgment of Apex Court delivered in the matter of State of Punjab v.
Rafiq Masih reported in (2015) 4 SCC 334, wherein the Apex Court has held
that the recovery from the retired or deceased employee from pensionary
benefits is bad in law. The relevant paragraph of the judgment reads 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) 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.
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5. Learned counsel for appellant submits that the learned Single Judge
has committed error in holding that the amount can be recovered from the
death benefits payable to the widow of the deceased employee and not
quashing the principal recovery amount. He prays for setting aside the
impugned order passed by learned Single Judge with a prayer to quash the
recovery in its entirety.
6. Learned Government Advocate appearing on behalf of State
supported the order passed by learned Single Judge and submits that in the
present matter, the departmental enquiry was initiated against the deceased
employee and by order dated 13.12.2011, the employee was punished with
reduction of one increment with cumulative effect however, the department
continued to pay him the higher amount without implementation of the said
order. He further submits that similarly the period of illness was allowed by
the department as leave without pay, but during this period also he was paid
the salary therefore, the department initiated the recovery of Rs.14,27,155/-
and charged interest thereupon of Rs.7,41,881/-, thus the total recovery
amount is Rs.21,69,036/- from the death benefits payable to the widow of the
employee. He further submits that as in the present matter, recovery is based
upon the departmental inquiry and punishment order, the judgment delivered
by the Apex Court in the matter of Rafiq Masih (supra) is not applicable and
the facts of the present case are distinguishable.
7. After considering the arguments advanced by both the parties and
after perusal of record, it is apparent that the facts of the case are not in
dispute and the only question involved in the present matter is whether a
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recovery can be made from the death benefits of the deceased employee of
Group-D on the ground that he was paid increased amount despite
punishment order and during the period of leave without pay, salary was paid
to him. The Apex Court in the matter of Syed Abdul Qadir v. State of Bihar
(2009) 3 SCC 475 has held that the issue of recovery revolved on the action
being iniquitous. The Apex Court has held that when the excess unauthorized
payment is deducted within a short period of time, it would be open for the
employer to recover the same and if the payment be paid for a long duration
of time, it would be iniquitous to make any recovery. It further held that it
would be almost impossible for an employee to bear the financial burden of a
refund of payment received wrongfully for a long span of time. The Apex
Court further held that the government employee is primarily dependent on
his wages and if a deduction is to be made from the salary, it should not be a
deduction which would make it difficult for employee to provide for the
needs of his family. The relevant para of the judgment reads as under :
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was
not because of any misrepresentation or fraud on their part and the appellants also
had no knowledge that the amount that was being paid to them was more than what
they were entitled to. It would not be out of place to mention here that the Finance
Department had, in its counter-affidavit, admitted that it was a bona fide mistake on
their part. The excess payment made was the result of wrong interpretation of the
Rule that was applicable to them, for which the appellants cannot be held
responsible. Rather, the whole confusion was because of inaction, negligence and
carelessness of the officials concerned of the Government of Bihar. Learned counsel
appearing on behalf of the appellant teachers submitted that majority of the
beneficiaries have either retired or are on the verge of it. Keeping in view the
peculiar facts and circumstances of the case at hand and to avoid any hardship to the
appellant teachers, we are of the view that no recovery of the amount that has been
paid in excess to the appellant teachers should be made.
8. The Apex Court in the matter of Thomas Daniel v. State of Kerela
reported in 2022 SCC Online SC 536 has held that if the excess amount was
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not paid on account of any misrepresentation or fraud of the employee or if
such excess amount was paid by the employer by applying a wrong principal
or on the basis of a wrong interpretation of rule or order, such excess
payment of emoluments or allowances are not recoverable. It is further held
by the Apex Court that this relief against the recovery is not granted in case
of any right of the employees, but in equity, exercising judicial discretion to
provide relief to the employees from the hardship that will be caused if the
recovery is ordered. Coming to the facts of the present case, it is not in
dispute that the order of punishment was issued on 13.12.2011 however, till
the death of employee, the department continued to pay the excess amount to
the deceased police constable without implementation of order dated
13.12.2011. Be that as it may, the same may be ground for recovery, but the
fact remains that the recovery was made on the ground of excess payment of
increased increment amount despite order passed in departmental enquiry on
13.12.2011. The employee cannot be held responsible for the said excess
payment. Said amount was not paid to the employee due to any
misrepresentation on his behalf and, therefore, it does not make any
difference that reason of recovery was failure on the part of the department to
implement the punishment order or any other reason because of which the
department made the excess payment to the employee. Similarly, despite
order of leave without pay, the salary was paid to the deceased during the
period of his illness, the deceased cannot be held liable for the same and on
the contrary the equity demands that the amount which was paid to the
deceased erroneously during the period of his illness, should not be permitted
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to be recovered, as the same must have been spent by him for treatment.
9. Further the Apex Court in a recent judgment delivered in the matter
o f Jogeswar Sahoo and others v. The District Judge, Cuttack and others
reported in 2025 Supreme (Online) (SC) 210 has reiterated that the payments
were mistakenly being made by the employer in excess of their entitlement,
the same is not recoverable in the some situations. The Apex Court held that
the recovery from the employee belonging to Class-III and Class-IV service
(Group-C and Group-D) is not permissible. In the case in hand, the recovery
is initiated on the basis of punishment order passed in departmental enquiry
on 13.12.2011. The employee cannot be held liable for not implementing the
said punishment order and making payment of excess mount to the
employee erroneously. Similarly, due to long illness, the period was
sanctioned as leave without pay however, the salary was paid to the
employee cannot be recovered as the employee is not liable for payment of
salary for the said period. The deceased employee was posted as Head
Constable and was a Group-D employee and, therefore, great hardship would
be caused to the widow of deceased employee, if the amount is recovered
from the death benefits. The present matter is squarely covered by the
judgment delivered by the Apex Court in the matter of Rafiq Masih (supra)
and in our considered view the learned Single Judge has committed error in
not quashing the recovery.
10. So far as the indemnity and undertaking signed by the appellant is
concerned, the same is also not helpful to the department as the same were
not executed by the employee and have been signed by the appellant, the
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same were got signed by the department from the appellant treating her
as employee. It appears that the indemnity bond and undertaking were not
signed by the appellant voluntarily or after understanding the contents of the
same. Hence, the same cannot be given a seal of approval. Even otherwise,
this is not a case where the employee himself has executed any indemnity or
undertaking, but same was executed by his widow after his death, therefore,
the undertaking or indemnity cannot be made basis for recovery of the extra
amount paid to the employee. Since widow of employee had no option but to
give an undertaking so as to avail the death benefits, it cannot be said to be a
voluntary act, therefore, such an undertaking cannot be made the basis of
sustaining the recovery. Full Bench of this Court in the matter of State of
M.P. and Ors. v. Jagdish Prasad Dubey (2024) SCC Online MP 1567 has
held as under :
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) (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. I.
(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.
11. In the above conspectus, the present appeal succeeds. The
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impugned action of the respondent department initiating the recovery of
Rs.21,69,036/- from the death benefits payable to the appellant is hereby
quashed. The order passed by learned Single Judge in W.P. No.25666 of
2023 on 03.07.2024 is also set aside. Appeal is allowed. The respondents are
directed to make the payment of death benefit and pension to the appellant
within a period of three months from today. No order as to costs.
(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE
Shub
