Madhya Pradesh High Court
The State Of Madhya Pradesh vs Abdul Hamid Nagori on 24 January, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:1813
1 WA-201-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 24th OF JANUARY, 2025
WRIT APPEAL No. 201 of 2025
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
ABDUL HAMID NAGORI
Appearance:
Shri Sudeep Bhargava - Dy. Advocate General for the
appellant(s)/State.
Shri Ranjeet Sen - Advocate for the respondent.
ORDER
Per: Justice Vijay Kumar Shukla
Heard on I.A No.596/2025 which is an application for condonation
of delay of 425 days.
1. It is stated in the application that the time had been consumed in
filing the appeal in seeking opinion from the concerned administrative
department and thereafter from the law department. Therefore, the appeal
could not be filed in time.
2. Learned counsel for the respondent opposes the prayer submitting
that delay in filing the appeal has not been sufficiently explained and
therefore, this appeal is liable to be dismissed on the ground of huge delay.
3. After hearing learned counsel for the parties, we considered it
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appropriate to address the appeal on merit instead of dismissing the appeal
on the question of limitation. The appeal is heard on admission.
4. This appeal is filed against the order passed by learned single
judge in which the petition filed by the petitioner challenging the order of
recovery of Rs.2,30,707/- has been allowed and the appellants have been
directed to refund the said amount alongwith interest at the rate of 6% p.a
from the date of recovery till the date of repayment to the petitioner.
5. Learned counsel for the appellant argued that learned single judge
has allowed the petition considering the judgment passed by the Apex Court
in the case of State of Punjab and others vs. Rafiq Masih (White Washer)
(2015) Volume 4 SCC 334 , whereas the aforesaid judgment would not apply
to the case of the respondent/employee because he was not working on the
post of Class-III or Class- IV. He further argued that the aforesaid, judgment
was delivered by the Apex Court in the light of the Rules prevailing in the
State of Punjab and was not in respect of the State of Madhya Pradesh.
Counsel for the appellant also submits that the learned single judge has not
taken into consideration the Rule 65 of M.P Civil Services (Pension) Rules,
1976 (herein after referred to as the 'Rule of 65'), as the excess payment
made to an employee on account of leave fixation of pay can be recovered as
an ascertainable due under Rule 65.
6. Per contra, learned counsel for the respondent argued that
respondent/employee was not working on Class-II post. However, he further
submitted that aforesaid recovery is sought to be made from the petitioner on
the ground of wrong fixation of pay whereas, there was no fault of the
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3 WA-201-2025
respondent/employee. It is not the case of the respondent that any
misrepresentation, fraud or cheating was committed by the employee in
respect of fixation of pay.
7. After hearing learned counsel for both the parties, so far as
arguments of learned counsel for the appellant regarding applicability of the
judgment passed in the case of State of Punjab and others vs. Rafiq Masih
(supra) and the other contention regarding applicability of Rule 65 and 66 of
the M.P Civil Services (Pension) Rules, 1976 are kept open.
8. This appeal is being decided on the submission made by the
learned counsel for the respondent that the recovery cannot be made from the
employee as there was no fault, cheating or misrepresentation committed by
him. So far as, the recovery of an employee on account of re-fixation of pay
is concerned, the law relating to same is no longer res-integra that an excess
payment on account of wrong fixation pay cannot be recovered from an
employee if, there is no fault, misrepresentation or cheating by the employee.
The respondent 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) India, 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 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 Prasad Vs. National Institute of
Education Planning, (2010) 14 SCC 323.
9. On the anvil of the aforesaid judgment, the facts of the present
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4 WA-201-2025
case are examined. We find that it is not the case of the appellants that there
was any fault, misrepresentation or cheating by the respondent and therefore,
the recovery is quashed. Accordingly, we do not find any ground to interfere
with the order passed by the learned single judge so far it relates to the
quashment of the recovery and direction to pay the said amount to the
respondent alongwith interest at the rate of 6% p.a from the date of recovery
till the date of repayment to the petitioner.
10. With the aforesaid, this writ appeal stands dismissed.
(VIJAY KUMAR SHUKLA) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
