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Madhya Pradesh High Court · body

2020 DIGILAW 1259 (MP)

Shankar Lal Yogi v. State of M. P.

2020-12-05

S.A.DHARMADHIKARI

body2020
ORDER 1. In pursuance of the directions issued by the apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government. 2. With the consent of rival parties, the matter is heard finally. 3. In this petition under Article 226 of Constitution of India, the petitioner has assailed pension payment order so far as recovery of Rs. 1, 96, 980/- is concerned, which has been made from the retiral dues (gratuity) of the petitioner. 4. Brief facts giving rise to filing of present petition is that the petitioner is aggrieved by order of recovery after retirement. The grievance of the petitioner is that neither affording any opportunity of hearing nor issuance of show cause notice, the said amount has been deducted from the retiral dues (gratuity) of the petitioner. The petitioner was neither found guilty of any misconduct nor held guilty for any offence in the criminal proceedings. The inaction on the part of the respondents is in flagrant violation of principles of natural justice. The petitioner has superannuated in February, 2016. The petitioner further contends that the said amount cannot be recovered from the retiral dues of the petitioner because there is no misrepresentation or fault on the part of the petitioner. The said recovery has been done without prior approval of the Governor which is violation of Rule 9 of the Pension Rules, 1976. He further contends that the Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer), (2015) 1 M.P.H.T 130 (SC) has held that no recovery can be effected from the retrial dues of the employee after his retirement. In view of above, it is prayed that recovery of Rs.1,96,980/- already made from the retiral dues (gratuity) of the petitioner needs to be refunded along with interest. 5. On the other hand, learned State counsel by filing return contended that originally petitioner was appointed as Constable w.e.f. 2.4.1976 and he remained posted in different units in the District Police Force in District Shivpuri. 5. On the other hand, learned State counsel by filing return contended that originally petitioner was appointed as Constable w.e.f. 2.4.1976 and he remained posted in different units in the District Police Force in District Shivpuri. After implementation of Revision of Pay Rules, 1990, the pay of the petitioner was wrongly fixed w.e.f. 1.1.1986 and he continued to receive the payment, due to such incorrect pay fixation, however, after retirement when the service book of the petitioner was forwarded for verification before the Joint Director, Treasury, Accounts and Pension, on verification, the Joint Director, Treasury, Accounts and Pension, raised objection about incorrect pay fixation w.e.f. 1.1.1986 and as per direction of Joint Director, Treasury, Accounts and Pension, the pay fixation of the petitioner has been corrected and vide order dated 25.1.2016, before retirement of petitioner, correct pay fixation was made and therefore, amount of recovery of Rs. 1, 96, 980/- has been made. Moreover, petitioner has also given undertaking that in case any excess amount is being paid to the petitioner then the respondents would be at liberty to recover the same from the petitioner. 6. From the facts of the case, it is clear that pay of the petitioner was fixed w.e.f. 1.1.1986. There is no allegation that the same was fixed due to the collusion with anybody. Moreover, the undertaking given by the petitioner at the time of retirement cannot be said to be undertaking of pay fixation, which was given in the year 1986, therefore, the instant petition deserves to be allowed. 7. The Hon'ble Supreme Court in the case of Syed Abdul Qadir and others v State of Bihar and others, reported in (2009) 3 SCC 475 , has held as under with regard to right of the employer to recover the excess amount paid to an employee on account of wrong fixation of pay ;- “The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recover of the amount paid in excess. (Para. 58) The excess amount that has been paid to the appellant teachers, was not because of any misrepresentation of fraud on their part and the appellants also had no knowledge that the amount that was being paid to the them was more than what they were entitled to. The Finance Department of the respondent State has admitted that it was a bonafide mistake. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants can not be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the respondent Government. It has also been brought to the Court's notice 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, recovery of the amount that has been paid in excess to the appellant teachers is prohibited. Amount that has already been recovered has to be refunded to the employees concerned. These directions would also apply to those similarly situated teachers who have not moved the Court.” (Paras 59 to 61) 8. In the case of State of Punjab and others etc. v. Rafiq Masih (White Washer) etc. (supra), it was contended that out of several contingencies specified in the said judgment, the petitioner comes within the category of Class III employee and the recovery from retired employee, or employees who are due to retire within one year of the order of recovery, therefore, the said recovery is not permissible. The relevant extract is reproduced below :- “12. 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. The relevant extract is reproduced below :- “12. 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 ready reference, summarise the following few situations, wherein recoveries by the employers, 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. (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.” 9. As per the principle of law laid down by the Supreme Court, in my opinion, recovery of an amount of Rs. 1,96,980/- from the retiral dues of the petitioner is illegal. Consequently, the petition is allowed. The respondents are directed to refund the amount of Rs. 1,96,980/- to the petitioner within a period of three months from the date of receipt of certified copy of this order passed today. In case, the amount is not refunded within the aforesaid period, the same shall carry interest @ 9 % per annum till the date of payment. No order as to costs. Arun Katare for petitioner; Vinay Kumar, Panel lawyer for respondents/State.