[Cites 8, Cited by 0]
Madhya Pradesh High Court
Dwarka Prasad Tiwari vs The State Of Madhya Pradesh on 13 January, 2026
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2026:MPHC-JBP:3095
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 13th OF JANUARY, 2026
WRIT PETITION No. 21913 of 2017
DWARKA PRASAD TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Kaushki Mishra - Advocate for the petitioner.
Shri K.V.S. Sunil Rao - Panel Lawyer for the respondent/State.
ORDER
The petitioner, who was a class-III employee, is questioning the
recovery after retirement, who was superannuated on 30/11/2016. Counsel
for the petitioner contends that the said course was not available with the
respondents as there could not have been any recovery from the retired
employee in view of the decision of the Apex Court in the case of State of
Punjab and others vs Rafiq Masih and others reported in 2015 (4) SCC 334
as well as in view of decision of the Full Bench of this Court in W.A. No.
815 of 2017 (State of M.P. and others Vs. Jagdish Prasad Dubey) vide order
dated 06.03.2024. It is contended by the counsel that in such circumstances,
the respondent concerned be directed to take decision on the representation
of the petitioner contained in P/5 in the light of decision of Apex Court in
the case of Rafiq Masih (supra) and decision of Full Bench of this Court in
the case Jagdish Prasad Dubey (supra) .
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2 . Per contra, counsel for the State has opposed the prayer and
submitted that, as there exists an undertaking at the time of his
retirement, therefore, in view of the aforesaid, the petitioner is precluded
from questioning the recovery.
3. Having considered the submission and perusal of the record reflects
that it is a case where the recovery was carried out after retirement and such
eventualities were taken note of by the Apex Court in the case of State of
Punjab and others v. Rafiq Masih (White Washer) and others reported in
(2015) 4 SCC 334 wherein the Apex Court held in paragraph 18 as under:
"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 hereinabove, 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.
(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
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harsh or arbitrary to such an extent, as would far outweigh the
equitable balance of the employer's right to recover."
4 . Thereafter, the controversy came up for consideration before the
Full Bench of this Court as well in Jagdish Prasad (Supra) wherein the
following questions were framed by the Full Bench:-
"1. Whether the recovery can be ordered to be affected from the
pensionary benefits or from the salary in view of an undertaking
or Indemnity Bond taken by the employer before the grant of
benefit of pay refixation.
2. Whether the recovery on account of excess payment to an
employee can be made in exercise of power conferred under Rule
65 of M.P Civil Services Pension Rules, 1976.
3. Whether the undertaking sought at the time of grant of financial
benefits on account of refixation of pay is a forced undertaking
and thus not enforceable in light of judgment of Supreme Court in
(1986) 3 SCC 136 (Central Inland Water Transport Corporation
Limited and Another Vs. Brojo Nath Ganguly and Another)."
5. The aforesaid three questions were answered by the Full Bench
of this Court in following manner:-
"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.
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(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.
6. The Apex Court also again in the case of Jogeswar Sahoo
(supra) held in paragraph as under:
"7. The issue falling for our consideration is not about the legality
of the retrospective promotion and the financial benefit granted to
the appellants on 10.05.2017. The issue for consideration is
whether recovery of the amount extended to the appellants while
they were in service is justified after their retirement and that too
without affording any opportunity of hearing.
8. The law in this regard has been settled by this Court in catena of
judgments rendered time and again; Sahib Ram vs. State of
Haryana, Shyam Babu Verma vs. Union of India, Union of India
vs. M. Bhaskar and V. Gangaram vs. Regional Jt. Director and in a
recent decision in the matter of Thomas Daniel vs. State of Kerala
& Ors.
* * * * *
11. In the case at hand, the appellants were working on the post of
Stenographers when the subject illegal payment was made to
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them. It is not reflected in the record that such payment was made
to the appellants on account of any fraud or misrepresentation by
them. It seems, when the financial benefit was extended to the
appellants by the District Judge, Cuttack, the same was
subsequently not approved by the High Court which resulted in
the subsequent order of recovery. It is also not in dispute that the
payment was made in the year 2017 whereas the recovery was
directed in the year 2023. However, in the meanwhile, the
appellants have retired in the year 2020. It is also an admitted
position that the appellants were not afforded any opportunity of
hearing before issuing the order of recovery. The appellants
having superannuated on a ministerial post of Stenographer were
admittedly not holding any gazetted post as such applying the
principle enunciated by this Court in the above quoted judgment,
the recovery is found unsustainable."
5. In view of the aforesaid law laid down by the Apex Court as well as
Full Bench in Jagdish Prasad (Supra) , there could not have been recovery
from the retired employee. Accordingly, the impugned order dated
24.04.2017 contained in Annexure P/1 stands quashed. The amount, if any,
recovered on the strength of the impugned order dated 24.04.2017, be
refunded to the petitioner within 60 days from today, along with the interest
of 6% per annum.
6. Accordingly, the petition stands allowed.
(MANINDER S. BHATTI)
JUDGE
sp
