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Madhya Pradesh High Court · body

2015 DIGILAW 932 (MP)

Bhushan Prasad Dubey v. State of M. P.

2015-09-03

K.K.TRIVEDI

body2015
ORDER : K.K. Trivedi, J. IA No. 11821/2014, an application for taking documents on record is considered and allowed. The documents are taken on record. With the consent of learned counsel for the parties, heard finally. The grievance of the petitioner is that while settling his retiral dues, an amount of Rs. 4,90,061/- was recovered from the dues payable to him alleging that excess amount was paid to the petitioner. It was alleged that excess amount was paid to the petitioner with effect from 1-1-1996 to 31-8-2009 and 1-9-2009 to 31-3-2011 on account of improper fixation of pay of the petitioner while he was in service. It is contended by the petitioner that before effecting the recovery from his retiral dues, no opportunity of hearing was ever granted to him. Since he was not responsible for fixation of his pay, if at all the pay was wrongly fixed by the respondents, the excess payment was not to be recovered from him. After completing 35 years of service with the department, the petitioner has been denied the fruits of service in the aforesaid manner by deducting such amount from the retiral dues of the petitioner. 2. Even after service of notices of the writ petition, though opportunities have been granted to the respondents to file the return, no return has been filed. However, it is contended by the learned Dy. Advocate General, appearing for the respondents that because of improper fixation of pay at the time of revision, excess payment was made to the petitioner throughout his service for the aforesaid period and, therefore, in terms of the law laid-down by the Apex Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, AIR 2012 SC 2951 the said loss to the public exchequer was to be recovered in furtherance of the circular issued by the State Government. Thus, it is contended that the action taken by the respondents is just and proper. 3. After hearing learned Counsel for the parties at length, this Court is of the considered view that such a recovery was not permissible against the petitioner, that too after his retirement. In the case of State of Punjab Vs. Rafiq Masih, (2014) 10 SCJ 700 the Apex Court has summarized the situations where in certain cases even the recovery from the employee by the employer would not be permissible in law. In the case of State of Punjab Vs. Rafiq Masih, (2014) 10 SCJ 700 the Apex Court has summarized the situations where in certain cases even the recovery from the employee by the employer would not be permissible in law. The Apex Court in paragraph 18 has held thus: "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-in 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." 4. In view of the latest pronouncement of law by the Apex Court, it is clear that the recovery made from the petitioner was not justified. There is no allegation made by the respondents that the petitioner himself was responsible for wrong fixation of pay and to take advantage of such a wrong, he would not be entitled to the law laid-down by the Apex Court in the case of Rafiq Masih (White Washer) (supra). Further, for the wrong committed by the departmental authorities in the matter of fixation of pay of the petitioner, such a recovery is not permissible as the same would cause financial inconvenience after the retirement of the petitioner. 5. In view of the aforesaid, the writ petition is allowed. Further, for the wrong committed by the departmental authorities in the matter of fixation of pay of the petitioner, such a recovery is not permissible as the same would cause financial inconvenience after the retirement of the petitioner. 5. In view of the aforesaid, the writ petition is allowed. Impugned part of the communication dated 26-2-2014 and any recovery made pursuant to the said communication is hereby quashed. The respondents are directed to refund back the said amount to the petitioner within three months from today with an interest at the rate of 6% per annum. It is made clear that in case the order is not complied with within the aforesaid period, the rate of interest would enhance to 12% and in that event the respondent-State would be free to recover the same from the erring officers, who fail to comply with this order. With the aforesaid the writ petition stands allowed. No costs.