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Madhya Pradesh High Court · body

2016 DIGILAW 272 (MP)

Kamlabai v. Public Health Department

2016-04-01

PRAKASH SHRIVASTAVA

body2016
ORDER 1. This writ petition has been filed by the petitioner challenging the recovery of a sum of Rs.49,406/- directed against the petitioner after his retirement. 2. In brief, the case of the petitioner is that she was working on the post of Sweeper and had retired from service on 31.12.2012 and thereafter the impugned recovery has been directed. 3. Respondents have filed the reply taking a stand that at the time of giving benefit of the 6th Pay Commission in the year 2006 the pay of the petitioner was wrongly fixed at Rs.5980/-, whereas she was entitled to a pay of Rs.5840/- and since the wrong pay fixation was made and the excess payment was made, therefore, the recovery has been directed against the petitioner. 4. Learned counsel appearing for the petitioner submits that the impugned recovery has been directed against the petitioner without any opportunity of hearing and that the benefit was extended to the petitioner not on account of any misrepresentation or fraud. He has further submitted that the impugned recovery after her retirement, will cause serious hardship to the petitioner. 5. He has further submitted that the impugned recovery after her retirement, will cause serious hardship to the petitioner. He has placed reliance upon the judgment of the Supreme Court in the matter of Shyam Babu Verma v. Union of India and others, reported in (1994)2 SCC 521 , in the matter of Sahibram v. State of Hariyana and others, reported in (1994)2 SCC 52, in the matter of Syade Abdul Qadir and others v. State of Bihar and others, reported in (2009)3 SCC 475 . 6. Counsel for the respondents submits that since the benefit was wrongly extended, therefore, it has been withdrawn. He has placed reliance upon the judgment of the Supreme Court in the matter of Chandi Prasad Uniyal and others v. State of Uttarakhand and others, reported in (2012)8 SCC 417 . 7. Having heard the learned counsel for parties and on the perusal of the record, it is found that no opportunity of hearing was given to the petitioner before passing the impugned order. 7. Having heard the learned counsel for parties and on the perusal of the record, it is found that no opportunity of hearing was given to the petitioner before passing the impugned order. It has further been found that though the plea of misrepresentation or fraud on the part of the petitioner not sustainable in view of the judgment of the Supreme Court in the matter of Chandi prasad Uniyal (supra), but it is a case of great hardship since the recovery is sought to be made after retirement of the petitioner. The division bench of this Court by the judgment dated 9th November 2012 in Writ Appeal No.168/2012 (State of M.P. and others v. Om Prakash S/o Daulat Singh Pure) has considered the judgment of the Supreme Court in the matter of Chandi Prasad Uniyial (supra), as well as the issue of hardship and has held as under :- “7. We have gone through the order passed by the Supreme Court in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others (supra). We find that the Supreme Court in the said judgment has observed the directions contained in the case of Syed Abdul Qadir [ (2009) 3 SCC 475 ] and [Col.B.J. Akkara (2006)11 SCC 709 ], as also in the case of Shyam Babu Verma [ (1994)2 SCC 521 ] and Sahib Ram [(1994)2 SCC 52] wherein the department is restrained from recovery of excess amount keeping in view the peculiar facts and circumstances of the case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them. 8. In the present case also, the benefit extended to the writ petitioner was sought to be recovered on his retirement. In our considered view, this if allowed to stand, would cause great hardship to a retired employee. 9. In the circumstances, we are of the view that no case for interference in the order passed by learned Single Judge is made out. 10. As a result, the appeal fails and is hereby dismissed”. 8. The present case is also a case similar to the one which has been decided by Division Bench of this Court as above. This is also a case of great hardship when the amount is sought to be recovered after the retirement of the petitioner. 9. 10. As a result, the appeal fails and is hereby dismissed”. 8. The present case is also a case similar to the one which has been decided by Division Bench of this Court as above. This is also a case of great hardship when the amount is sought to be recovered after the retirement of the petitioner. 9. The supreme Court in the matter of State of Punjab and others v. Rafiq Masih (White Washer), reported in 2015(1) MPHT 130 (SC), has enumerated certain categories of employees where the recovery on the ground of excess payment made by mistake cannot be effected and has held as under :- “12. 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. (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.” 10. The petitioner's case is covered by the above judgment, hence the recovery cannot be sustained. 11. Considering the aforesaid, the writ petition is allowed and the impugned recovery for a sum of Rs.49,406/- is hereby set aside. However, the pay fixation is maintained. The petitioner's case is covered by the above judgment, hence the recovery cannot be sustained. 11. Considering the aforesaid, the writ petition is allowed and the impugned recovery for a sum of Rs.49,406/- is hereby set aside. However, the pay fixation is maintained. The respondents are directed to refund the said amount recovered in pursuance to the impugned order along with interest @ 6%, within a period of three months from the date of receipt of certified copy of this order.