Madhya Pradesh High Court
Kunwar Singh Yadav vs Home Department (Police) on 16 January, 2025
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 16th OF JANUARY, 2025
WRIT PETITION No. 6678 of 2016
KUNWAR SINGH YADAV
Versus
HOME DEPARTMENT (POLICE) AND OTHERS
Appearance:
Shri Abhishek Tugnawat - advocate for L.Rs of the petitioner.
Ms.Pranjali Yajurvedi - PL for State.
ORDER
The original petition was filed by employee Kunwar Singh Yadav
challenging the order of recovery Annexure P/1 and re-fixation of pay
Annexure P/2. During the pendency of the petition he died and his L.Rs
have been brought on record.
Counsel for petitioner argued that the impugned recovery is being
made on the basis of the wrong grant of benefit of time scale of pay. The
said recovery is being made after the retirement of the petitioner and,
therefore, the same is contrary to the judgment passed by the Apex Court in
the case of State of Punjab Vs. Rafiq Masih (2014) 8 SCC 883 . It is further
argued that there is no misrepresentation or suppression of fact on the part of
the petitioner and it is not the case of the respondents that the petitioner has
made any cheating or misrepresentation with the respondents.
Counsel for respondents argued that as per Circular of the Finance
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Department dated 01st April, 2008, the petitioner was not entitled for the
benefit of the time scale of pay because he had already got two promotions.
He further relied on an undertaking Annexure R/3 stating that as per the said
undertaking, the petitioner had agreed for recovery of the excess payment
on account of wrong fixation of time scale of pay.
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
Rule 65 of the Rules of 1976 towards revision of pay
which has been extended to a Government servant
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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. It
is submitted that the issue involved in the present case is squarely covered by
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the Apex Court in the judgment passed in the case of State of Punjab Vs.
Rafiq Masih(white washer) reported in (2015) 4 SCC 334.
After hearing learned counsel for the parties and in the light of the
aforesaid enunciation of law, this Court finds that the recovery on the basis
of an undertaking which was obtained in the year 2009 cannot be made after
the retirement of the petitioner. The impugned recovery order Annexure P/2
is quashed. The respondents are directed to refund the recovered amount
with 6% interest within period of 3 months and also finalize retiral dues of
the petitioner in accordance with law after issuing revised PPO.
With the aforesaid, present petition is allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
