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2018 DIGILAW 286 (MP)

Ratanlal Tyagi v. State of M. P.

2018-03-08

S.A.DHARMADHIKARI

body2018
ORDER 1. With the consent of parties, this petition is disposed of finally. 2. The petitioner who was working as Sub-Engineer, Class-III employee stood retired w.e.f. 30.11.2017, has approached this Court against recovery of Rs. 2,22,211/- from his retiral dues on the premise that during his service tenure excess payment was made. 3. Return has been filed by the respondents in which it is stated that at the time of checking service book of the petitioner for fixation of pension and other retiral dues, the Joint Director Treasury and Accounts, Morena took an objection that his pay fixation as on 1.7.1989 was to be done in accordance with FR – 22A-2, while it was done as per the provisions of Rule 22A-1, which is erroneous. Moreover, the benefit of family planning was also wrongly granted. On receiving such objections, the pay has been revised and it was found that excess payment of Rs. 1,46,582/- has been made to the petitioner and interest has been calculated at Rs. 75,629/- and a total sum of Rs. 2,22,211/- has been ordered to be recovered from the petitioner. It is further submitted that petitioner has signed an undertaking wherein it is clearly mentioned that any over payment in pay fixation is recoverable from the petitioner. 4. Learned counsel for the petitioner challenges the aforesaid recovery on the strength of judgment of Hon'ble the Supreme Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) etc. [ AIR 2015 SC 696 = (2015)1 MPHT 130 (SC)], wherein it has been held as under : "While it is not possible to postulate all situations of hardships where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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. (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." (Emphasis supplied) 5. Learned counsel has relied upon clauses (i) and (iii) above to bolster his submissions. It is submitted that neither during petitioner's entire service career nor at the time of revision of pay scale any undertaking was ever furnished by the petitioner. That apart, the entire recovery without any notice and opportunity of hearing is patently illegal for want of observance of principles of natural justice. Therefore, the impugned recovery, deserves to be quashed. 6. Per contra Shri Yogesh Singhal contends that an indemnity bond/undertaking was submitted by the petitioner (Annexure R-3) on 20.5.2009 whereunder petitioner has undertaken that any loss or damage or over payment in pensionary benefits or otherwise in pay revision, if discovered, may be recovered from him. The benefit of aforesaid dictum of the apex Court cannot be claimed in the light of judgment of Hon'ble Supreme Court in the case of High Court of Punjab and Haryana v. Jagdev Singh passed in Civil Appeal No. 3500 of 2006 (Annexure R-2), wherein the Hon'ble Supreme Court while addressing upon similar issue in the light of Rafiq Masih's case (supra), has held that at the time of revision of pay since the petitioner therein had given an undertaking that any payment found to be in excess shall be liable to be adjusted, the benefit of aforesaid judgment cannot be extended under such circumstances. With the aforesaid submissions, learned Government Advocate submits that no illegality has been committed while ordering recovery. 7. In response, Shri D.P. Singh contends that judgment of Hon'ble Supreme Court in the case of Jagdev Singh (supra), is distinguishable on facts and has no application to factual matrix in hand, inasmuch as, at the time of extension of benefit of revised pay scale neither any undertaking was required from the petitioner nor petitioner furnished any such undertaking. 7. In response, Shri D.P. Singh contends that judgment of Hon'ble Supreme Court in the case of Jagdev Singh (supra), is distinguishable on facts and has no application to factual matrix in hand, inasmuch as, at the time of extension of benefit of revised pay scale neither any undertaking was required from the petitioner nor petitioner furnished any such undertaking. As such, the judgment of the apex Court in the case of Rafiq Masih (supra), has full application. 8. Heard. 9. Looking to the factual matrix in hand, it is evident that the impugned recovery has been ordered in the context of alleged excess payment made in the year 1989 consequent upon revision of pay scale. Admittedly, no undertaking of the nature as referred to in paragraph 9 of the judgment in Jagdev Singh's case (supra), was either asked for or furnished by the petitioner. Under these circumstances, judgment of apex Court in the case of Rafiq Masih (supra), has full application to the facts in hand firstly for the reason that neither the petitioner was given any notice nor opportunity before ordering recovery. Secondly, the aforesaid recovery allegedly in the context of revision of pay scale cannot be made as the same is covered by clauses (i) and (iii) of the said judgment, as quoted above. 10. Consequently, petition is allowed. The impugned order of recovery is quashed. Respondents are directed to refund the amount recovered (if any) from the petitioner with interest at the rate of 6% per annum from the date of recovery till its payment, within six weeks from the date of submission of certified copy of this order by the petitioner. The petition, accordingly, stands allowed.