Madhya Pradesh High Court
Shamim Khan vs The State Of Madhya Pradesh on 18 June, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:12174
1 WP-1352-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 18th OF JUNE, 2025
WRIT PETITION No. 1352 of 2024
SHAMIM KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Alok Katare - Advocate for the petitioner.
Shri Brij Mohan Patel - GA for the respondents/State.
ORDER
Petitioner has filed this petition challenging the recovery of amount
allegedly paid to the petitioner in excess.
2.Petitioner stood retired from service from the post of Head Constable
w.e.f. 31/8/2022. After the retirement, when the PPO was issued to the
petitioner, an amount of Rs. 71,265/- was shown as a recovery towards
excess amount paid to the petitioner. The aforesaid amount was recovered
from the retiral dues of the petitioner. Being aggrieved, the petitioner has
filed the instant writ petition.
3. Learned counsel for the petitioner submits that the recovery effected
by the respondents is illegal, firstly, on the ground that no opportunity of
hearing was afforded to the petitioner before recovering the amount.
Secondly, after having retired from service, no recovery can be effected by
the respondents from his retiral dues that to for a fixation done long time
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ago. He placed reliance upon the Full Bench decision of this Court in the
case of State of M.P. Vs. Jagdish Prasad Dubey, 2024 (2) MPLJ 198 (FB) .
He therefore, prays for setting aside of the recovery effected by the
respondents and for refund of the aforesaid amount.
4. On the other hand, learned counsel for the State referred to the reply
filed by the respondents and submits that an amount of Rs. 71,265/- was paid
to the petitioner in excess on account of erroneous fixation of his salary in
the year 2006. He submits that since the petitioner has submitted an
undertaking to refund the excess amount, the respondents were entitled to
recover the amount. He therefore, prays for dismissal of the writ petition.
5. Considered the arguments and perused the record.
6. The Full Bench in the case of Jagdish Prasad Dubey (supra) ,
considering the same controversy, issued the 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. 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
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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."
7. Thus, the respondents can recover the amount if the petitioner has
submitted the undertaking to refund the same. The documents filed
alongwith the return consist of a consent letter, indemnity bond and a
declaration letter. All these documents relates to the period at the time of
retirement of the petitioner in the year 2022.Thus, in view of Full Bench
decision of this Court, these consent letter/undertaking cannot be relied upon
for the purpose of supporting the recovery effected by the respondents.
8. Petitioner's case is also covered by the Apex Court decision in the
case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and ors.,
(2015) 4 SCC 334, wherein, the Apex Court issued the following directions
:-
"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 the employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) 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.
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(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."
9. In view of the discussion made above, the recovery made by the
respondents from the retiral dues of the petitioner is unsustainable and same
is accordingly quashed. The respondents are directed to refund the amount of
Rs. 71,265/- recovered from the petitioner alongwith interest @6% per
annum from the date of retirement of the petitioner i.e. 31/8/2022 till actual
payment of the amount.
10. Let the necessary be done by respondents no. 3 and 4 within a
period of 90 days from the date of submission of certified copy of this order.
11. Petition is disposed of accordingly.
(ASHISH SHROTI)
JUDGE
JPS/-
