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Madhya Pradesh High Court · body

2018 DIGILAW 350 (MP)

Tara Bai v. State of M. P.

2018-03-22

VIJAY KUMAR SHUKLA

body2018
ORDER 1. In the instant petition preferred under Article 226 of the Constitution of India a challenge has been made to the order dated 24.2.2016, Annexure-P-1, passed by the Superintendent of Police, Damoh, whereby the alleged excess payment made to the husband of the petitioner for the period August, 1989 to June 2015 has been sought to be recovered. 2. The facts of the case briefly stated, are that the husband of the petitioner – Late Dilip Singh Thakur was working on the post“of Sub-Inspector. He was retired on 30.6.2015. It is stated that on 15.10.2015 the husband of the petitioner moved a complaint in the office of the respondent No. 6 for releasing arrears including pension. On 27.12.2015 he expired and by order dated 15.3.2016 the respondent No. 6 issued an order in respect of releasing of the pension of the petitioner. After death of the husband of the petitioner pension account was opened and by the impugned order (Annexure-P-1) a sum of Rs. 4,81,674/- has been recovered from the retiral claims of the husband of the petitioner. 3. Counsel for the State submits that an objection was raised by the Treasury, in the case of the husband of the petitioner, regarding fixation of pay-scale, therefore, the case was re-opened and revised. Thereafter, a fresh order was issued and recovery of the excess amount was made from the claims of the retiral dues of the husband of the petitioner. Counsel for the State further submits that an undertaking was obtained from the petitioner vide Annexure-R/1 and indemnity bond duly filled up by the husband of the petitioner. 4. Learned counsel for the petitioner vehemently urged that recovery from a retired Government servant is contrary to the law laid down by the apex Court in the case of State of Punjab v. Rafiq Masih, [ AIR 2015 SC 696 = (2015) 4 SCC 334 ]. He further relies on an order passed by a Division Bench of this Court in the case of State of M.P. and others v. Chandreshwar Prasad Singh [(W.A. No.1232/2017, decided on 15-12-2017)]. Reliance is also placed on a recent judgment passed by this Court in the case of Chandra Mani Prasad Mishra v. The State of Madhya Pradesh and others [(W.P. No.13915/2016, dated 23-2-2018)]. 5. Reliance is also placed on a recent judgment passed by this Court in the case of Chandra Mani Prasad Mishra v. The State of Madhya Pradesh and others [(W.P. No.13915/2016, dated 23-2-2018)]. 5. The Division Bench of this Court in the case of State of M.P. and others v. Chandreshwar Prasad Singh (supra), has taken note of the judgment rendered in the case of State of Punjab and Haryana v. Jagdev Singh [ (2016)14 SCC 267 ] and relying on the judgment passed by the apex Court in the case of Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another, [(1986) 3 SCC 136] has held that in case of an undertaking being sought by the employer, an employee has no option but to give an undertaking so as to avail benefit of pay fixation and, therefore, it cannot be said to be a voluntary act. 6. Further, a Single Bench of this Court in the case of Vijay Shankar Trivedi v. State of M.P. [(W.P. No.2395/2017)] had considered the submissions regarding rule 65 of the Pension rules has held that the said rule would not apply in the case of a retired Government servant. The same has been followed by another Single Bench of this Court in Chandramani Prasad Mishra (supra). 7. In view of the order passed passed by a Division Bench of this Court in State of M.P. and others v. Chandreshwar Prasad Singh (supra), it is held that the recovery sought to be made from the retiral dues of the husband of the petitioner after his retirement is not sustainable. Accordingly, the impugned order (Annexure-P-1) is quashed. If any amount has been deducted from the retiral dues of the husband of the petitioner, the same be returned to the petitioner within a period of three months from the date of production of certified copy of the order passed today. 8. Accordingly, the writ petition is allowed. There shall be no order as to costs.