[Cites 8, Cited by 0]
Madhya Pradesh High Court
Shankar Dayal Mishra(Dead) Through Lrs ... vs The State Of Madhya Pradesh on 8 December, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:63965
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 8 th OF DECEMBER, 2025
WRIT PETITION No. 11786 of 2016
SHANKAR DAYAL MISHRA(DEAD) THROUGH LRS SMT.
RAJKUMARI MISHRA(DEAD) THROUGH LRS. JITENDRA KUMAR
MISHR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dharmendra Kumar Pandey - Advocate for the petitioner.
Shri Pradeep Singh G.A. appeared for respondent.
ORDER
Counsel contends that the issue involved in the petition is no more res
integra inasmuch as, there cannot be any recovery from Class-III employee
after superannuation as laid down by the Apex Court in State of Punjab and
Ors. Vs. Rafiq Masih and Ors. reported in 2015 (4) SCC 334 as well as Full
Bench of this Court in WA No.815/2017 (State of M.P. and Ors. Vs. Jagdish
Prasad Dubey) dated 06/03/2024.
2. Counsel for the State submits that as there exists undertaking as
well as indemnity bond so executed by the petitioners, they cannot dispute
the same.
3. Having considered the submissions and perused the record reflects
that the order of recovery is being assailed in the petition. The issue
pertaining to recovery from employees who were holding the post of Class-
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III employees, after retirement came up for hearing before the Apex Court in
the case of Rafiq Masih (Supra) wherein the Apec Court held in paragraph
18 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).
( i i ) 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."
4. Again the controversy came up for consideration before the Full
Bench of this Court in W.A. No. 815 of 2017 (State of M.P. & others Vs.
Jagdish Prasad Dubey), wherein, by order dated 06.03.2024, the Full Bench
of this Court formulated the following three questions for consideration:
"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
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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)."
5. The aforesaid three questions were answered by the Full Bench of
this Court in following terms :
"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
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given voluntarily."
6. The Apex Court also again in the case of Jogeswar Sahoo & Ors.
Vs. The Disrict Judge, Cuttack & Ors. - (2025) INSC 449 held in below
mentioned paragraphs as under:
"7. The issue falling for our consideration is not about
the legality of the retrospective promotion and the
financial benefit granted to the appellants on
10.05.2017. The issue for consideration is whether
recovery of the amount extended to the appellants while
they were in service is justified after their retirement
and that too without affording any opportunity of
hearing.
8. The law in this regard has been settled by this Court
in catena of judgments rendered time and again; Sahib
Ram vs. State of Haryana, Shyam Babu Verma vs.
Union of India, Union of India vs. M. Bhaskar and V.
Gangaram vs. Regional Jt. Director and in a recent
decision in the matter of Thomas Daniel vs. State of
Kerala & Ors.
*****
11. In the case at hand, the appellants were working on
the post of Stenographers when the subject illegal
payment was made to them. It is not reflected in the
record that such payment was made to the appellants on
account of any fraud or misrepresentation by them. It
seems, when the financial benefit was extended to the
appellants by the District Judge, Cuttack, the same was
subsequently not approved by the High Court which
resulted in the subsequent order of recovery. It is also
not in dispute that the payment was made in the year
2017 whereas the recovery was directed in the year
2023. However, in the meanwhile, the appellants have
retired in the year 2020. It is also an admitted position
that the appellants were not afforded any opportunity of
hearing before issuing the order of recovery. The
appellants having superannuated on a ministerial post of
Stenographer were admittedly not holding any gazetted
post as such applying the principle enunciated by this
Court in the above quoted judgment, the recovery is
found unsustainable."
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7 . Thus in view of the aforesaid law laid down by the Apex Court as
well as Full Bench of this Court, it is evident that under the garb of
undertaking, the respondents were unjustified in recovering the amount from
the terminal dues of the petitioners. Accordingly, the impugned PPO so far
as it relates to recovery, stands quashed. The amount recovered on the
strength of impugned PPO be refunded to the petitioners within a period of
60 days from the date of submission of this order, along with the interest @
6% per annum.
8. Accordingly, the petition stands disposed of.
(MANINDER S. BHATTI)
JUDGE
Astha
