[Cites 6, Cited by 0]
Madhya Pradesh High Court
G.L. Hindoliya vs The State Of Madhya Pradesh on 21 January, 2026
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1 WP. No. 413 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
ON THE 21st OF JANUARY, 2026
WRIT PETITION No. 413 of 2017
G.L. HINDOLIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yogesh Singhal - Advocate for petitioner.
Shri Prabhat Pateriya - Government Advocate for respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s):-
"It is therefore, most humbly prayed that this petition may kindly be allowed
and the respondents be directed to grant the 100% full pension forthwith
alongwith arrears with interest and gratuity amount alongwith 24% per annum.
Any other relief in the peculiar facts and circumstances of the case may kindly
be granted."
2. Learned counsel for petitioner submits that petitioner stood retired on
31.08.2016 from the post of SNMS, a Class-III post, from the office of
respondent No.4, i.e., the Chief Medical Officer, Sagar, District Sagar. It is
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further submitted that without affording any opportunity of hearing and without
issuing any show-cause notice to petitioner, the respondents paid only 90%
provisional pension and did not pay the gratuity amount to petitioner. It is further
submitted that after filing of the present petition, the respondents paid the
gratuity amount. It is further submitted that an impugned recovery of Rs.
2,43,009/-, as mentioned in the PPO, has been directed to be effected. It is further
submitted that petitioner retired from a Class-III post and that recovery initiated
after retirement, on the basis of an objection raised by the Treasury Officer, is not
permissible. It is further submitted that the alleged excess amount was paid on
account of wrong pay fixation of the petitioner's salary with effect from October,
1999 till June, 2014. however, petitioner is not responsible for wrong fixation.
To strengthen his submission, learned counsel for petitioner placed reliance on
the Full Bench decision 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.
3. Per contra, learned counsel for the State opposed the prayer and submitted
that the excess amount was paid on account of erroneous fixation of salary and
therefore, the respondents are entitled to recover the amount paid in excess. It is
further submitted by him that at the time of preparation of pension papers, he had
given consent for recovery in case of excess payment (Annexure R-3). It is
further submitted that the said undertaking had been given by petitioner
voluntarily therefore the principle laid down by Hon'ble Apex Court in the case
of State of Punjab Vs. Rafiq Masih (White Washer), (2015) 4 SCC 334 is not
applicable in case of petitioner.
4. Considered the submissions put forth by learned counsel for the parties and
perused the record.
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5. The Full Bench of this Court in the case of Jagdish Prasad Dubey
(supra), has dealt with the similar issue 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 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."
6. The Apex Court has also dealt with the similar issue in the case of Rafiq
Masih (White Washer) (supra), wherein, the Apex Court held 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
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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.
(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."
7. The Supreme Court in the case of Jogeswar Sahoo and others Vs.
District Judge, Cuttack and others reported in 2025 (3) M.P.L.J. (S.C.) 25 has
held as under:
"11. In the case at hand, the appellants were working on the post of
Stenographers when the subject illegal payment was made to 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
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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."
8. The co-ordinate Bench of this Court has already decided the matter
pertaining to the undertaking in the case of Ravindra Kumar Joshi Vs. The
State of Madhya Pradesh and others [Writ Petition No.17831/2019 vide
order dated 13.05.2024], relevant of which is reproduced below for ready
reference and convenience:
8. .............It is brought on record by the respondents that at the
time of extending benefit of time scale pay, petitioner has submitted
an undertaking which is placed on record by the learned counsel for
respondents/State and as per the undertaking, the petitioner had
undertaken to repay the amount, if it was found that the same was
extended to him erroneously. In the matter of High Court of Punjab
and Haryana Vs. Jagdev Singh (supra), the Apex Court has held
that if any undertaking is submitted at the time of grant of financial
benefits on account of refixation of pay, the amount is refundable to
the Government or the same is adjustable in future, and therefore, the
action of the respondent/Department appears to be correct. Full
Bench of this Court, in the matter of State of Madhya Pradesh and
others Vs. Jadish Prasad Dubey and others (supra) has answered
the question No.3 by holding that the undertaking given by the
employee at the time of grant of financial benefits on account of
refixation of pay is forced and the same is not forcible in the light of
the Judgment of Hon'ble Supreme Court in the case of Central
Inland Water Transport Corporation Ltd. and another Vs. Brojo
Nath Ganguly and another (1986) 3 SCC 136, unless the
undertaking is given voluntarily meaning thereby that if undertaking
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is given voluntarily, recovery is permissible and if undertaking is
forced, then no recovery is permissible.
9. In the present matter, respondent/State has not established that
petitioner had given undertaking voluntarily. Therefore, the
undertaking shall be treated as obtained forcefully and therefore,
there is no circumstance available in the case to consider the
undertaking, which was not given voluntarily. On the strength of
undertaking, recovery can not be affected."
9. Wrong pay fixation was carried out from October, 1999 & petitioner had
not furnished undertaking while fixation on October, 1999 (as there is no such
undertaking appended in the record). In absence of any specific undertaking at
the time of making payment of such amount i.e. October, 1999, the petitioner
would be entitled to the benefit of the dictum of Apex Court in the case of Rafiq
Masih (White Washer) (supra). Undertaking (Annexure R-3) was furnished by
petitioner after his retirement & he did not furnish any undertaking at the time of
extending the benefits of pay to him i.e. October, 1999. Thus, it is clear that
undertaking was furnished by petitioner at the time of retirement and he did not
furnish any undertaking at the time of extending the benefit of pay to him. The
undertaking furnished by petitioner at the time of his retirement cannot be said to
be an undertaking for which recovery of excess payment which has been made
long back would become effective. The said undertaking would not benefit the
respondents and the recovery being made from the petitioner is consequently
illegal.
10. Petitioner stood retired on 31.8.2016. Recovery pertains to the period from
October, 1999 to June,2014 and it was initiated without giving any show-cause
notice to him or an opportunity of being heard. Furthermore, petitioner-employee
was a Class III employee (S.N.M.S.). In view of the aforesaid legal position, the
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impugned recovery is not permissible. Therefore, while setting aside the
impugned recovery, the respondents are directed to refund the amount of
Rs.2,43,009/- to petitioner. The respondents shall pay interest @ 6% per annum
on Rs.2,43,009/- w.e.f. the date of retirement till actual payment.
11. Let the said exercise, as directed above, be completed within a period of 90
days from the date of submission of certified copy of this order.
12. The petition is, accordingly, disposed of.
(Anand Singh Bahrawat)
Judge
Ahmad
