Madhya Pradesh High Court
Rajendra Singh Kushwah vs The State Of Madhya Pradesh on 18 June, 2025
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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. 13241 of 2022
RAJENDRA SINGH KUSHWAH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.K. Sharma - learned counsel for the petitioner.
Shri N.K. Gupta- learned Government Advocate for the
respondents/State.
ORDER
1. The petitioner has filed this petition under Article 226 of the
Constitution of India whereby the amount of Rs.3,40,047/- has been directed to be
recovered from the petitioner on account of wrong fixation of salary.
2. The petitioner retired from the post of Head Constable w.e.f.
31/12/2021. After his retirement, the impugned order was issued on 02/02/2022
thereby directing recovery of amount Rs.3,40,047/- which is alleged to have been
paid in excess to the petitioner on account of erroneous fixation of his salary. The
respondents have filed a calculation chart as Annexure R/2 which reflects that the
excess amount paid to the petitioner relates to the year 2016 onwards. Annexure
R/4 shows that the respondents have also charged interest on the excess amount
paid to the petitioner.
3. The learned counsel for the petitioner challenging the action of the
respondents submitted that recovery effected from the petitioner's retiral dues is
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unsustainable in law firstly on the ground that no opportunity of hearing was
given to the petitioner. Secondly, he submitted that after retirement of the
petitioner, recovery cannot be made from his retiral dues in view of the Full
Bench judgment of this Court in the case of State of Madhya Pradesh & others
Vs. Jagdish Prasad Dubey reported in (2024)2 M.P.L.J. 198 . He also relied upon
the judgment of the Apex Court in the case of State of Punjab Vs. Rafiq Masih
(White Washer) reported in (2015)4 SCC 334 . He, therefore, submits that the
impugned order of recovery is unsustainable in law and is liable to be set-aside.
4. On the other hand, learned Government Advocate for the
respondents/State supports the impugned order and submits that the petitioner was
erroneously paid excess amount of salary which has been directed to be recovered
from the petitioner. He submits that the petitioner has submitted indemnity bond
filed as Annexure R/3 and therefore, the petitioner is bound by undertaking given
by him. In view of the aforesaid, he submits that the action of the respondents in
recovering excess amount from the petitioner's retiral dues is legal and valid and
no interference is warranted in the instant case.
5. Considered the arguments and perused the record.
6. The Full Bench in the case of Jagdish Prasad Dubey (supra) has dealt
with the similar controversy and held as under:-
"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
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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.
Converselyan 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 given voluntarily."
7. In view of the aforesaid, the indemnity bond filed as Annexure R/3
cannot be relied upon by respondents inasmuch as the same was taken at the time
of retirement of the petitioner and does not relate to the period to which the
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alleged wrong fixation of the petitioner's salary was done. Thus, in view of the
law laid down by the Full Bench, recovery effected by the respondents after
retirement of the petitioner is unsustainable in the law. Further, the Apex Court in
the case of Rafiq Masih (supra) has issued 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 employees belonging to Class-III
and Class-IV service (or Group 'C' and 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.
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(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."
8. In view of the aforesaid legal position, the impugned order dated
02/02/2022 passed by the respondents directing recovery of excess amount is thus
unsustainable in law and accordingly, is set-aside. The respondents no.3 is
directed to refund the aforesaid amount to the petitioner with interest at the rate of
6% per annum from the date of retirement of the petitioner i.e. 31/12/2021 till the
actual date of payment. Let the same be done within a period of 90 days from the
date of furnishing certified copy of this order.
9. With the aforesaid, this writ petition is disposed off.
(ASHISH SHROTI)
JUDGE
rahul
