Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 385 (MP)

Krishan Kumar Sharma v. State of M. P.

2019-05-14

SANJAY YADAV

body2019
ORDER 1. At the outset, learned Government Advocate submits that an issue as the present one as to whether recovery can be effected in case of excess payment since has been referred to Larger Bench by order dated 11.4.2018 in W. A. No. 815/2017; the hearing of present case be deferred. 2. The order dated 11.4.2018 passed in W. A. No. 815/2017 reflects following questions of law referred to Larger Bench: “1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation. 2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under rule 65 of M. P. Civil Services (Pension) Rules, 1976. 3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another). 4. Any other question which is raised for decision before the Larger Bench or which the Larger Bench considers arising out of the issues canvased.” 3. The facts of the present case reveal that neither any undertaking at the time of fixation was given/taken from the employee nor is there any material on record to establish that the employee has been forced to give an undertaking. As such, issues No. 1 and 3 referred to Larger Bench are not attracted in the present case. 4. As regard to second question referred to Larger Bench as to “whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under rule 65 of M. P. Civil Services (Pension) Rules, 1976. 5. In the case at hand, the recovery is not shown to be done in purported exercise of power under rule 65 of 1976 Rules, therefore, this Court refrains from expressing any opinion as the issue is referred to Larger Bench. 6. Petitioner, a retired Sub-Inspector (Radio), has filed this petition being aggrieved of recovery of Rs. 1,47,238/- from the gratuity amount payable to him. 6. Petitioner, a retired Sub-Inspector (Radio), has filed this petition being aggrieved of recovery of Rs. 1,47,238/- from the gratuity amount payable to him. The said recovery emanates from the refixation order dated 16.11.2015 (Annexure P/2); whereby, the petitioner's pay has been revised and re-fixed with effect from 1.1.2006. The petitioner has confined his challenge only to the recovery which has arisen due to re-fixation of his salary. 7. Return is filed by the respondents stating therein that at the time of superannuation of the petitioner on 31.12.2015 the service record of the petitioner was sent for verification to Joint Director, Treasury, Accounts & Pension who raised an objection as regard to fixation of pay of the petitioner under Madhya Pradesh Pay Revision Rules, 2009. Consequently, revised pay fixation order was passed on 8.2.2016 with consequential recovery of excess amount. It is further contended that at the time of preparation of pension proposal, the petitioner submitted indemnity bond stating therein that the State would be at liberty to recover the amount. It is urged that acting thereon, the recovery is effected. 8. Considered the rival submissions. 9. Since the petitioner has not questioned the re-fixation of his pay under the Madhya Pradesh Pay Revision Rules, 2009, the only issue which arises is as to whether it will be within the competence of authority concerned to effect recovery of the excess amount said to have paid to the petitioner due to wrong fixation. 10. Evidently, there is no material commended at as would establish that the petitioner had no role to play fixing his pay scale under Madhya Pradesh Pay Revision Rules, 2009. The pay was revised by the competent authority and the petitioner has been paid accordingly. It was only after his retirement when the matter was sent to the Joint Director, Treasury, Accounts & Pension, the error in pay fixation has been noticed resulting in correction of the fixation of pay, as a result whereof the arrears have been recovered from the gratuity of the petitioner. 11. Pertinent it is to note here that while fixing the pay under the Madhya Pradesh Pay Revision Rules, 2009 no undertaking seems to have taken from the employee concerned as regard to the recovery, if any, which may crop up in future due to wrong fixation. 12. Be that as it may. 11. Pertinent it is to note here that while fixing the pay under the Madhya Pradesh Pay Revision Rules, 2009 no undertaking seems to have taken from the employee concerned as regard to the recovery, if any, which may crop up in future due to wrong fixation. 12. Be that as it may. In State of Punjab and Others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 , it is held: “16. This Court in Syed Abdul Qadir v. State of Bihar (2009) 3 SCC 475 held as follows (SCC pp. 491-92, para 59): ‘59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona-fide mistake on their part. The excess payment made was the result of wrong interpreta-tion of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and careless-ness of the officials concerned of the Government of Bihar. The learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.’ (emphasis supplied) Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir (2009) 3 SCC 475 , that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It is apparent from the conclusions drawn in Syed Abdul Qadir (2009) 3 SCC 475 , that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement,or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation.” 13. In view whereof, the recovery as effected from the gratuity of the petitioner is set aside. The respondents are directed to refund the amount of Rs. 1,47,238/- to the petitioner within a period of three months. The petitioner shall be entitled for interest on the said amount at the rate of 7.5% from the date of its recovery till the payment. 14. Petition is disposed of finally in above terms.