Madhya Pradesh High Court
Vishnu Shankar Bhushan vs The State Of Madhya Pradesh on 6 February, 2025
Author: Anil Verma
Bench: Anil Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 6 th OF FEBRUARY, 2025
WRIT PETITION No. 3289 of 2019
VISHNU SHANKAR BHUSHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aditya Sharma - Advocate for the petitioner.
Shri B. M. Patel - GA for respondents/State.
ORDER
Both the parties are heard finally.
The instant petition has been preferred by petitioner under Article 226 of
the Constitution seeking the following reliefs:-
(1) That, the impugned action of recovery may kindly be
quashed.
(2) That, the respondents' authorities may kindly be directed to
refund the recovered amount which is recovered from the petitioner
alongwith 18% interest per annum.
(3) That, the impugned fixation in pursuance of which recovery
has been initiated may kindly be quashed and to fix the pension
accordingly.
(3) That, any other relief which this Hon'ble Court deems fit in
the fact and circumstances of the case may kindly be granted in the
interest of justice. Cost of the petition may kindly be granted to the
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petitioner.
Brief facts of the case are that the petitioner was initially appointed on the
post of Up-Shikshak vide order dated 05.12.1984 (Annexure P/1) in the Education
Department. He stood retired on 30.11.2017 after attaining the age of
superannuation. After retirement, petitioner submitted his clam for finalization of
his retiral dues. While finalization of the retiral due of petitioner, respondents
reached to the conclusion that the department has wrongly fixed the pay of the
petitioner on 01.01.2006. Therefore, the total amount of Rs. 1,20,843/- with
interest has to be recovered from the petitioner. And, ultimately, without issuance
of show-cause notice, and without providing any opportunity of hearing to the
petitioner, the aforesaid amount has been recovered from gratuity of the petitioner
vide issuing PPO (Annexure P/2). As per the dictum of the Hon'ble Apex Court
passed in the case of State of Punjab and ors Vs. Rafiq Masih, reported in AIR
2015 696, a recovery cannot be made from the retired employee who is due to
retire within one year. Being aggrieved by the aforesaid, petitioner has preferred
this petition.
Per contra, learned counsel for respondents/State opposed the prayed for its
rejection by submitting in their return that while preparing the PPO of the
petitioner, it has been found that petitioner had been paid an excess amount of
Rs. 1,20,843/- in lieu of the fact that during pay revision for the period from
01.01.2006 to 30.11.2017, the excess amount has been paid to the petitioner for
which he was not entitled. Therefore, as per the circular dated 31.05.2011
(Annexure P/2), the same has been recovered from the amount of the gratuity of
the petitioner. Petitioner has also submitted an undertaking to the Department at
the time of revision of pay scale that is in the year 2006. Therefore, as per the
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Judgments of the Hon'ble Apex Court in the case of High Court of Punjab and
Haryana Vs. Jagdev Singh reported at AIR 2016 SC 3523 and in the case of Rafiq
Masih (supra), the excess amount has been recovered from the retiral dues of the
petitioner. Therefore, the petition is totally misconceived and the same deserves to
dismissed being bereft of any merits.
Both the parties heard at length and perused the entire record with due care.
It is undisputed that petitioner has been retired from service on 31.11.2017
from the post of Assistant Teacher which is post of Class-III Cadre.
Law is well settled that no recovery can be made from the employees
belonging to Class -III and Class- IV, even more when they have retired or are due
to retire within one year of the order of recovery. It is also legally settled that
recovery from the employees when the excess payment has been made for the
period in excess of five years before the order of recovery is issued is not
permissible. It is also well settled that in case excess payment is not made on
account of misrepresentation or fraud on the part of the employee, the same could
not be recovered and it cannot be recovered without giving any opportunity of
hearing also. In the case of State of Punjab and Others Vs. Rafiq Masih (White
Washer) reported in 2015 (1) MPHT 130 (SC) , wherein the Apex Court in Para-
12 has postulated certain categories and observed that the recovery from them is
impermissible. Para-12 is relevant, which is reproduced thus:
"12. 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
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few situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from employees belonging to Class- III and Class-
IV service (or 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 employers right to recover."
Thus, from the aforesaid dictum it can be gathered that recovery from the
retired employee or employees who are due to retire is impermissible also when
there is no misrepresentation on the part of the person concerned, at the time of
claiming benefit in his favour.
In the instant matter, the undertaking of the petitioner Annexure R/1, it
appears that no date has been mentioned in the column of date and that is kept
vacant. From perusal of the PPO (Annexure P/2) and computation chat of arrears,
it appears that excess amount has been recovered from the petitioner for the period
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from 2006 to 2017 till the superannuation of the petitioner. Thus, undertaking
furnished by the petitioner was not executed at the time of extending the benefits
of pay to him. Therefore, the undertaking furnished by the husband of the
petitioner at earlier occasion cannot be said to be an undertaking for recovery of
excess payment which has been paid long back would become effective. The said
undertaking does not benefits the respondents and the recovery made from the
husband of the petitioner is consequently illegal.
As a result, the present petition deserves to be and is hereby allowed. The
impugned action directing recovery of an amount of Rs. 120843/- be made from
petitioner vide PPO (Annexure P/2) is hereby set aside and the amount already
recovered from the petitioner be refunded back to petitioner with an interest of 6%
per annum from the date of recovery till the date actual repayment. Let the same
be done within a period of three months from the date of receipt of certified copy
of this order.
With the aforesaid, the instant petition stands allowed and disposed of.
(ANIL VERMA)
JUDGE
Vishal
