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Madhya Pradesh High Court · body

2021 DIGILAW 188 (MP)

Megha Singh Chouhan v. State of M. P.

2021-02-19

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the learned counsel for the parties the matter is finally heard. 1. Being aggrieved by the action on the part of the respondents, whereby the recovery of excess amount paid to the petitioner is directed to be made without affording any opportunity of hearing to the petitioner. The action of the respondents is arbitrary and without jurisdiction and contrary to Article 14 and 16 of the Constitution of India and is also violative of the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (white washers) 2015 (4) SCC 334 . 2. It is submitted that the petitioner was appointed on the post of Constable in the respondent-department in the year 1979. Thereafter he was promoted to Head Constable in the year 1986 and thereafter as APC in the year 2004 and thereafter as a Platoon Commander in the year 2011 and finally he was promoted to the post of Inspector in the year 2015. The respondent no. 3 has issued a order of recovery from the petitioner, but no notice of recovery or any opportunity of hearing was granted to him and money has been recovered from the post retiral benefits of the petitioner. After completing the services, the petitioner stood retired on 30.4.2017 and the respondents have made recovery of excess amount from the post retiral dues of the petitioner. The aforesaid is reflected from the pension payment order of the petitioner. It is argued that the Finance Department of Government of M.P. has issued a circular on 31.3.2016 not to recover any amount from Class III and Class IV employees. The aforesaid circular is Annexure P/3 in the petition. 3. It is submitted that in pursuance to the aforesaid circular which was lays upon the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) the authorities could not have made any recovery from the petitioner. In such circumstances the order impugned is per se illegal and has prayed for quashment of the impugned order with a further direction to the authorities to refund the amount and to repay the amount which has been recovered from the petitioner along with interest. 4. In such circumstances the order impugned is per se illegal and has prayed for quashment of the impugned order with a further direction to the authorities to refund the amount and to repay the amount which has been recovered from the petitioner along with interest. 4. Per contra counsel appearing for the State has opposed the contents of the petitioner alleging therein that the recovery has been made from the petitioner in pursuance to the excess amount paid to the petitioner at the time of grant of krammonati as subsequently the petitioner was not found entitled for grant of krammonati. The recovery is further made in pursuance to an undertaking given by the petitioner before the authorities at the time of fixation of pay dated 8.3.2009, wherein the petitioner has categorically undertaken that if any excess amount is being paid to him the same will be recovered or he will refund the same to the authorities, but despite of the same he has not complied with the aforesaid undertaking, therefore, the authorities have recovered the amount from the post retiral benefits of the petitioner. It is pointed out that recovery of Rs. 26271/- was made from the salary of the petitioner and the remaining amount was being recovered from the other post retiral benefits amounting to Rs. 1,79,313/-. He has further contended that the case of Rafiq Masih (supra) is not applicable in the facts and circumstances of the case as relevant provisions of the Pension Rules of Madhya Pradesh have not been considered. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana Vs. Jagdev Singh, AIR 2016 SC 3523 which was considered by the Division Bench of this Court in W.A. No. 340/2017 in the case of State of Madhya Pradesh and others Vs. Laxman Prasad Sharma and considering the undertaking given by the petitioner the recovery was rightly made. In such circumstances, no illegality is committed by the authorities. He has prayed for dismissal of the writ petition. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record, it is seen that the petitioner is a Class III employee stood retired after completion of the attaining the age of superannuation on 30.4.2017. He has prayed for dismissal of the writ petition. 5. Heard the learned counsel for the parties and perused the record. 6. From the perusal of the record, it is seen that the petitioner is a Class III employee stood retired after completion of the attaining the age of superannuation on 30.4.2017. The authorities while at the time of finalizing the pension of the petitioner has made the recovery from the petitioner for the excessive amount paid to him at the time of granting promotional benefits to the petitioner. The total recovery of Rs. 2,05,584/- was to be made from the petitioner. It is further seen that the recovery was directed to be made from the gratuity of the petitioner to the tune of Rs. 1,79,313/- as balance amount was already recovered from the salary of the petitioner. The Hon'ble Supreme Court in the case of Rafiq Masih (supra) with respect to recovery from Class III and Class IV employees has held as under: "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 situations, wherein recoveries by the employees, 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." 7. (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." 7. The State Government has issued the circular dated 31.3.2016 Annexure P/3 in the light of the judgment passed by the Supreme Court in the case of Rafiq Masih and has observed as under: ^^e/;izns'k 'kklu foRr foHkkx oYyHk Hkou] ea=ky; Hkksiky Øekad ,Q 11&2@2016@fu;e@pkj Hkksiky] fnukad 31-03-2016 izfr 'kklu ds leLr foHkkx v/;{k] jktLo eaMy] Xokfy;j leLr foHkkxk/;{k leLr dfe'uj leLr dysDVj] e/;izns'k fo"k; % 'kkldh; lsodksa ls cdk;k olwyh ds laca/k esa fd'rks dk fu/kkZj.kA lanHkZ % foRr foHkkx dk ifji= Øekad ,Q 11&2@2011@fu;e@pkj fnukad 31 eà 2011 rFkk Øa ,Q&12&35@2014@fu-@pkj fn- 9 tqykà 2014 1- ekuuh; loksZPp U;k;ky; }kjk flfoy vihy Øekad 11527@2014 LVsV vkWQ iatkc fo#} jQhd elhg esa ikfjr fu.kZ; fnukad 18&12&2014 esa fuEukafdr Js.kh ds 'kkldh; lsodks dk =qfVo'k gq, vf/kd Hkqxrku dh olwyh fu"ksf/kr dh gSA (1) Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 2. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 2. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. (3) The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. (4) 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 situations, wherein recoveries by the employees, 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." 2- jkT; 'kklu }kjk fu.kZ; fy;k x;k gS fd 'kkldh; lsodks ls cdk;k olwyh ds lanfHkZr funsZ'kksa dks fdz;kfUor fd;s tkus ds fy;s ekuuh; loksZPp U;k;ky; ds mi;qZDr fu.kZ; dks fopkj esa fy;k tk, ,oa izdj.k ds xq.k nks"k ds vk/kkj ij foHkkx ds Lrj ls mi;qDr vkns'k osru fu/kkZj.k esa ykijokgh vFkok tkucw>dj xM+cM+h dh fLFkfr gksus ij osru fu/kkZj.k djus okys o mlds vuqeksnu djus okys i`Fkd i`Fkd 'kkldh; lsodksa ds fo#} vuq'kklukRed dk;Zokgh djus ds mijkar vkns'k tkjh fd;s tk;sA olwyh ;fn laHko gks rks i`Fkd i`Fkd vf/kdkfj;ksa ds fy;s jkf'k fu/kkZfjr fd;k tk;sA 3- mijksDr funsZ'kksa dk dM+kà ls ikyu lqfuf'pr fd;k tkosA e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼vfu#} eqdthZ½ lfpo eåizå'kklu] foRr foHkkx** 8. Admittedly as there is no dispute with respect to the fact that the petitioner stood retired as a Class III employee. In the case of Rafiq Masih (supra) the Hon'ble Supreme Court has categorically held that no recovery can be made from the post retiral benefits of Class III and Class IV employees and the State Government has also issued a circular to the aforesaid effect. 9. In the case of Rafiq Masih (supra) the Hon'ble Supreme Court has categorically held that no recovery can be made from the post retiral benefits of Class III and Class IV employees and the State Government has also issued a circular to the aforesaid effect. 9. Considering the judgment passed by the Hon'ble Supreme Court in the aforesaid case and also the circular issued by the State Government, the order impugned whereby the recovery is directed to be made from the petitioner appears to be unsustainable. Thus, the petition is allowed. The orders impugned Annexure P/1 and P/2 are hereby quashed. Respondents are directed to refund the amount which is already recovered from the petitioner within a period of one month from the date of receipt of certified copy of this order along with interest at the rate of 6% per annum from the date of recovery till the date of its realization. 10. With the aforesaid direction the petition is allowed and disposed of. E-copy/Certified copy as per rules/directions.