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Madhya Pradesh High Court · body

2019 DIGILAW 429 (MP)

Balesh Kumar Jhawar v. State of M. P.

2019-06-20

VISHAL MISHRA

body2019
ORDER 1. With the consent of parties, the matter is finally heard. 2. Being aggrieved by the illegal and arbitrary action on the part of the respondents whereby they are intending to recover a sum of Rs. 4,99,097/- from the retiral dues of the petitioner whereas in terms of the policy framed by the State Government itself, the petitioner was duly extended the benefits of Kramonati. The petitioner was retired on 31.5.2016, therefore, the action of the respondent is highly illegal and bad in law. Therefore, has prayed for quashment of the aforesaid order. 3. It is stated by the petitioner that he was holding the post of Lab Technician and was posted at District Hospital, Morena and after attaining the age of superannuation, stood retired on 31.5.2016. The initial appointment of the petitioner was in the year 1979 on the post of Lab Assistant and in the year 1980 the petitioner was promoted as Lab Technician. The State Government has issued a policy for extending the benefits of kramonnati to the officers and employees of the State Government and it was decided to extend the benefits of upgradation of pay to the employees on completion of certain period of one year without getting promotion. The case of the petitioner was duly considered by the respondents for grant of first kramonnati benefit and the petitioner was found entitled for the same and accordingly the respondents have fixed the pay of the petitioner in the pay scale of Rs. 4500-7000. 4. The contention of the petitioner is that he has never misrepresented or played fraud at any point of time, but at the time of retirement the respondents have recovered a sum of Rs. 4,99,097/- from the gratuity of the petitioner, without issuing any show cause notice and without providing any opportunity of hearing. The petitioner has further submitted that an identically placed person, namely, one Surendra Kumar Rajoria who was a Lab Technician, has been extended the benefit of kramonnati and no recovery has been made from him. Thus, the act of the respondents is arbitrary and discriminatory to the spirit of Articles 14 and 16 of the Constitution of India. The petitioner has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) and ors. Thus, the act of the respondents is arbitrary and discriminatory to the spirit of Articles 14 and 16 of the Constitution of India. The petitioner has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) and ors. reported in (2015) 4 SCC 334 and stated that recovery from a Class III employee, that too as a fraud, is not permissible. Accordingly, he prayed for quashment of the impugned order with further direction to the respondents to refund the amount of Rs. 4,99,097/- along with interest at the rate of 12% per annum. 5. Reply has been filed by the State Government and it has been pointed out that at the time of the retirement, the petitioner's service record was verified and the respondent No. 4 has raised an objection. 6. Considering the aforesaid objection the pay fixation of the petitioner was verified. A due drawn statement has been prepared which reveals that an excess payment of Rs. 3,00,078/- has been made to the petitioner which becomes to Rs. 4,99,097/- on adding interest and the aforesaid amount is required to be recovered from the petitioner. It is further contended that the petitioner was granted second kramonnati in the pay scale of Rs. 4500-7000 w.e.f. 19.4.1999 and the pay was fixed at Rs. 5,875/- whereas the petitioner has not completed 24 years of service .The pay fixation of the petitioner was wrong and he has been paid in excess despite of the fact that he was not entitled for the same. The respondents have further contended that an undertaking has been submitted by the petitioner as well as the indemnity bond stating that in case of any excess payment, he gives his consent to recover the same. Thus, the respondents have contended that the order impugned has rightly been passed as the petitioner is bound by the undertaking and does not call for any interference in the present writ petition. Accordingly, he has prayed for dismissal of the writ petition. 7. Heard the counsel for the rival parties and perused the record. 8. It is an admitted fact that the petitioner who is a Class III employee has stood retired on 31.5.2016. Accordingly, he has prayed for dismissal of the writ petition. 7. Heard the counsel for the rival parties and perused the record. 8. It is an admitted fact that the petitioner who is a Class III employee has stood retired on 31.5.2016. The indemnity bond on which the heavy reliance has been placed by the respondents, is dated 31.5.2016, which is taken the petitioner on the day of retirement. The aforesaid undertaking was taken because the post retiral dues of the petitioner will require to be settled. 9. The counsel appearing for the State could not point out the fact that the petitioner has misrepresented or played fraud at the time of revision of his pay, rather the department himself found petitioner entitled for kramonnati benefits. 10. The aspect of recovery from the retired employee has been considered by the Hon'ble Supreme Court in the case of State of Punjab and others. v. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 wherein the Hon'ble Supreme Court has laid down the following principles: "18. 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 situa-tions, wherein recoveries by the employers would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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." From the perusal of the aforesaid, it is apparently clear that the Hon'ble Supreme Court has held that the recovery from Class III and Class IV employee is impermissible. 11. Considering the aforesaid judgment of the Hon'ble Supreme Court and the fact that the petitioner stood retired in May 2016 and the amount has been subsequently recovered from the post retiral claims of the petitioner, the order impugned being unsustainable in the light of the Supreme Court judgment, accordingly the same is quashed. The authorities are directed to refund the amount recovered from the petitioner in pursuance to the impugned order along with the interest of Rs. 6% per annum within a period of 30 days. 12. The petition is allowed. 13. No order as to cost.