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Madhya Pradesh High Court · body

2017 DIGILAW 1044 (MP)

State of M. P. v. Laxman Prasad Sharma

2017-09-27

S.K.AWASTHI, SANJAY YADAV

body2017
ORDER 1. Heard on I.A. No. 4753/2017, an application under section 5 of Limitation Act for condoning the delay of 270 days in filing the intra Court appeal. 2. Taking into consideration the explanation tendered in paragraphs 2 and 3 of the application, sufficient ground is made out. Consequently, I.A. No. 4753/2017 is allowed and the delay is condoned. 3. With the consent of learned counsel for the parties, matter is heard finally. 4. This intra Court appeal takes exception to the order dated 4.11.2016 passed in Writ Petition No.3391/2016(S) whether the challenge was to an order dated 30.8.2015 and calculation sheet annexed along with the impugned order, whereby recovery of Rs.31,095/- was ordered from the gratuity of the petitioner on the ground that because of wrong fixation of pay as on 1.1.2006 the petitioner has drawn more wages than he was entitled for. The order was quashed on the basis of the decision of the Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer), reported in (2015)4 SCC 334 =(2015)1 MPHT (SC), with a finding that the petitioner was not found involved in wrong fixation of his salary. 5. The appellant takes exception to the extent that at the time of fixation of the salary of the petitioner, the petitioner had given an undertaking that in case of wrong fixation the petitioner would be accountable to refund the amount and the appellant/State would be entitled to recover the same. 5. The appellant takes exception to the extent that at the time of fixation of the salary of the petitioner, the petitioner had given an undertaking that in case of wrong fixation the petitioner would be accountable to refund the amount and the appellant/State would be entitled to recover the same. The undertaking given by the petitioner has been brought on record as Annexure A-1, which is in following term: eq>s ;g Kkr gS fd fnukad 1-1-2006 ls Lohd`r e/; izns'k osru iqujh{k.k fu;e] 2009 ds izko/kkuksa ds varxZr esjk tks osru fu;ru vHkh iqujhf{kr osru <k¡ps esa fd;k x;k gS og vufUre gSA eSa opu nsrk@nsrh gw¡ fd eSa jkT; 'kklu dks og laiw.kZ jkf'k tks fd osru fu;ru esa vfu;ferrk ds dkj.k rFkk vU; dksbZ Hkh /kujkf'k tks fd bl izdkj osru fu;ru ds dkj.k eq>s vf/kd Hkqxrku dh xbZ gks] 'kklu ds funsZ'kksa ds vuq:i fu/kkZfjr jkf'k okil d:¡xk@d:¡xh rFkk bl izdkj dh jkf'k esjs ns; LoRoksa ls ftuesa isa'ku] xzsP;wVh ,oa vodk'k uxnhdj.k dh jkf'k Hkh lfEefyr gS] dkVh tk ldsxhA eSa ;g Hkh opu nsrk@nsrh gw¡ fd ;fn mDrkuqlkj esjs }kjk ns; jkf'k dks] eSa ykSVkus esa vleFkZ jgrk@jgrh gw¡] rks bl ns; jkf'k dh okilh ds fy;s eSa vius mRrjkf/kdkfj;ksa] fu"ikndksa] izfrfuf/k;ksa vkSj leuqnsf'kfr;ksa dks vkc) djrk@djrh gw¡A eSa ;g Hkh lgefr nsrk@nsrh gw¡ fd esjs }kjk ns; jkf'k eq>ls jktLo dh cdk;k ds :i esa olwy dj yh tk,A 6. It is further contended that the issuance of order of recovery which clearly depicted therein that the entitlement of the respondent/petitioner and fixation which was effected in the year 2006 and because of erroneous fixation the same was calculated right from 1.1.2006 till the age of superannuation which was 1.7.2015. The impugned order dated 30.8.2015 which contains a table in respect of the entitlement of the petitioner and salary which was fixed in his favour, is reproduced below:- osru tks fn;k x;k osrueku 4500&125&70000 osru tks fn;k tkuk Fkk 4500&125&70000 fnukad osru fnukad osru 1-1-2006 10230$2800¾13030 1-1-2006 10000$2800¾12800 1-7-2006 10230$2800¾13430 1-7-2006 10390$2800¾13190 1-7-2007 10630$2800¾13840 1-7-2007 10790$2800¾13590 1-7-2008 11040$2800¾14260 1-7-2008 11200$2800¾14000 1-7-2009 11890$2800¾14690 1-7-2009 11620$2800¾14420 1-7-2010 12340$2800¾15140 1-7-2010 12060$2800¾14860 1-7-2011 12800$2800¾15690 1-7-2011 12510$2800¾15310 1-7-2012 13270$2800¾16070 1-7-2012 12970$2800¾15770 1-7-2013 13760$2800¾16560 1-7-2013 13450$2800¾16070 1-7-2014 14260$2800¾17060 1-7-2014 13950$2800¾16560 1-7-2015 14780$2800¾17580 1-7-2015 14950$2800¾17060 7. The appellant has relied upon the decision of the Supreme Court in the case of High Court of Punjab and Haryana v. Jagdev Singh, reported in AIR (2016) SC 3523. 8. Though, it is contended on behalf of respondent/petitioner that there was no fault of petitioner in getting pay fixation as on 1.1.2006, however, the fact remains that the petitioner had given an undertaking that in case of wrong fixation he would be accountable to pay the excess amount and the respondent/petitioner having failed to establish his entitlement of pay which was granted (and later corrected) the recovery cannot be faulted with. 9. It is, however, contended on behalf of respondent/petitioner that he is deprived of various other benefits for which he is entitled such as benefit of Kramonnati. 10. However, since said issue was not raised by the petitioner and the petition was only against the recovery which was ordered on 30.8.2017 and the same was refundable on the basis of undertaking given by the petitioner and petitioner having failed to establish that the fixation which was earlier done in his favour was just and proper, we are not inclined to grant stamp of approval to the decision in Writ Petition No.3391/2016. Consequently, the impugned order dated 4.11.2016 passed in Writ Petition No.3391/2016 is set aside. The order of recovery dated 30.8.2015 is upheld. The appellant shall recover the said amount of Rs.31,095/- from the gratuity of the petitioner and settle the retrial dues within a period of three months from the date of communication of this order. 11. Needless to say that in case if the petitioner has any grievance in respect of non grant of service benefit, he is at liberty to take recourse to law in accordance with law. 12. It is made clear that the appellant shall recover the said amount without adding interest to it. Praveen Newaskar, Government Advocate for State; Jitendra Sharma for respondent.