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Madhya Pradesh High Court · body

2016 DIGILAW 992 (MP)

Om Prakash Verma v. Tribal Welfare Department

2016-11-04

VIVEK RUSIA

body2016
JUDGMENT : Vivek Rusia, J. 1. The petitioner has filed the present petition being aggrieved by the recovery of Rs. 3,01,840/- from the gratuity by order dated 14.12.2015 on the ground of wrong pay fixation. 2. The petitioner stood retired from service from the post of Driver after attaining the age of superannuation on 31.12.2015. At that time of payment of retiral dues, an amount was Rs. 3,01,840/- has been deducted from his gratuity, vide impugned order dated 14.12.2015. 3. After notice, respondent filed reply, in which, it is stated that while implementing the 6th pay-scale, the petitioner's pay was required to be fixed @ Rs. 8,600/- but due to fault of the then accountant it was fixed @ Rs. 9,680/- and due to which the excess amount has been paid and the petitioner is not entitled for the same. 4. In the return, a reliance was placed over the judgment of the Hon'ble Supreme Court in the matter of Chandi Prasad vs. State of Uttrakhand, (2012) 8 SCC 417 on the point that such recovery is permissible after retirement if the employee is not entitled. 5. Shri Zamindar, learned counsel for the petitioner submits that in view of law laid down in case of State of Punjab and Others vs. Rafiq Masih (White Washer), Civil Appeal No. 11527/2014, order dated 18.12.2014, the Hon'ble Supreme Court held that recovery would be not permissible in case of employee belonging to Class III and IV. 6. In reply, Shri Rohit Mangal, learned counsel for the respondent has placed reliance over the judgment passed in the case of High Court of Punjab and Haryana and Others vs. Jagdev Singh, 2016 SCC 748 , in which, the Supreme Court has held that when the officer has given an undertaking that the payment which was made at the first instance is found to have been made in excess, would be refunded, then the judgment passed in the case of State of Punjab and Others vs. Rafiq Masih (Supra), would not apply. 7. I have heard learned counsel for the parties. In the case of State of Punjab and Others vs. Rafiq Masih (Supra), the Hon'ble Supreme Court has considered facts of number of cases, in which, excess payment has been paid to the employees/officers due to various reasons like wrongful fixation, revision of pay etc. 7. I have heard learned counsel for the parties. In the case of State of Punjab and Others vs. Rafiq Masih (Supra), the Hon'ble Supreme Court has considered facts of number of cases, in which, excess payment has been paid to the employees/officers due to various reasons like wrongful fixation, revision of pay etc. and after dealing with all such situations, the apex Court has summarized all cases into 5 categories and issued directions in para 12 and held that in these cases recovery is impermissible. Para 12 of the aforesaid judgment is reproduced below: "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. 8. So far as the case of High Court of Punjab & Haryana and Others (supra) is concerned, in para 11 of the order, it has been specifically held that the principle enunciated in proposition (ii) and para 12 of the case of State of Punjab and Others vs. Rafiq Masih (supra) cannot be applied to such a situation where the officer has given an undertaking while opting for revised pay scale. 9. Para 11 of the aforesaid judgment is reproduced below: "11. 9. Para 11 of the aforesaid judgment is reproduced below: "11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking." 10. In present case, petitioner, being a Class-IV employee would fall under principle (i) of para 12 mentioned in the case of State of Punjab and Others vs. Rafiq Masih (Supra) as reproduced above. 11. Hence, the writ petition filed by the petitioner is liable to be allowed as petitioner is a Class-IV employee and is not responsible for wrong fixation of pay by the respondent. 12. In view of the aforesaid, recovery order dated 14.12.2015 (Annexure P/1) is set aside. The respondents are directed to refund the amount of Rs. 3,01,840/- to the petitioner within a period of 45 days from production of certified copy of this order. The writ Petition is allowed. No order as to costs. CC as per rules.