Madhya Pradesh High Court
Kailash Bairagi vs The State Of Madhya Pradesh on 6 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:16726
1 WP-35444-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 6 th OF AUGUST, 2025
WRIT PETITION No. 35444 of 2024
KAILASH BAIRAGI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Himanshu Sharma - Advocate for the petitioner.
Mr. N.K. Gupta - GA for the State.
ORDER
The petitioner is aggrieved by the action of the respondents in
recovery of an amount of Rs.5,59,281/-, which also includes amount of
Rs.1,32,916/- towards the interest on the excess amount paid.
2. Learned counsel for the petitioner submitted that the petitioner
retired from the post of Assistant Sub Inspector w.e.f 30.06.2022. Thereafter,
respondents directed recovery of Rs.5,59,281/- from his retiral dues. From
the copy of passbook filed along with the writ petition, it is gathered that the
amount has been deducted from the amount of his retiral dues and the
balance amount has been credited in the petitioner's account. Learned
counsel for the petitioner submitted that the statement of calculation of
excess amount filed as Annexure P/6 goes to show that there was some
mistake in fixation of petitioner's salary in January, 1995, which is resulted
in making payment of excess amount. He submitted that even though, there
NEUTRAL CITATION NO. 2025:MPHC-GWL:16726
2 WP-35444-2024
may be some mistake in fixing of salary, however, the excess amount cannot
be recovered from his retiral dues in view of the Full Bench judgment in the
case of State of Madhya Pradesh & others Vs. Jagdish Prasad Dubey, (2024) 2
M.P.L.J. 198 , as also in the case of State of Punjab Vs. Rafiq Masih (White
Washer), (2015) 4 SCC 334. He therefore, prays for direction to the respondents
to refund the amount deducted from his retiral dues.
3. On the other hand, learned counsel for the respondents supports the
impugned action of the respondents and submitted that the petitioner was
paid excess amount on account of wrong fixation of his salary, therefore, the
respondents are entitled to recover the excess amount. Learned counsel
placed reliance upon the indemnity bond and the consent letter executed by
the petitioner and submitted that petitioner is bound by the undertaking given
by him. He therefore, prays for dismissal of the writ petition.
4. Considered the arguments and perused the record.
5. The Full Bench of this Court in the case of Jagdish Prasad Dubey
(Supra) has considered the similar issue and has issued following directions :
"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. Converselyan 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.
NEUTRAL CITATION NO. 2025:MPHC-GWL:16726
3 WP-35444-2024
(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."
6. In view of the law laid down by the Full Bench, if the indemnity
bond and consent letter being relied upon by the respondents are seen, it is
found that they are executed after the retirement of the petitioner. Thus, for
the purposes of recovering an amount towards excess amount relating to the
period commencing from 01.01.1995, the indemnity bond/consent letter
cannot be used by the respondents. The Apex Court in the case of Rafiq
Masih (supra), the Court 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 herein
above, we may, as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV
NEUTRAL CITATION NO. 2025:MPHC-GWL:16726
4 WP-35444-2024
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to
retire within one year, of the order of recovery.
(iii) Recovery from 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."
7. In view of the aforesaid legal position, the recovery of amount from
the retiral dues of the petitioner is unsustainable in law. Accordingly, this
petition is allowed. Action of recovery of excess amount is set
aside. Respondents are directed to refund the amount of Rs.5,59,281/-
together with interest @ 6 % per annum w.e.f. 30.06.2022 till actual
payment.
(ASHISH SHROTI)
JUDGE
bj/-
