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Madhya Pradesh High Court · body

2022 DIGILAW 613 (MP)

N. P. S. Sisodia v. State of M. P.

2022-04-18

S.A.DHARMADHIKARI

body2022
ORDER 1. Heard finally with the consent of both the parties. 2. By filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:- i. This Hon’ble Court may kindly be pleased to call for the entire relevant record from the possession of the respondents, for kind perusal; ii. This Hon’ble Court may kindly be pleased to quash and set aside the impugned orders dated 31.12.2015 (Annexure-P/1) and 6.1.2016 (Annexure-P/2); iii. This Hon’ble Court may kindly be pleased to command and direct the respondents that the impugned recovery be forthwith remitted to petitioner with interest thereon @18% p.a. till its realization; iv. This Hon’ble Court may kindly be pleased to command and direct the respondents for restoration of pension of petitioner by recording two advance increments as were part of the salary of the petitioner and all retiral dues can be calculated accordingly, arrears, if thereon be granted to the petitioner with interest @18% p.a.; v. Any other relief flowing from the facts and circumstances of the case may please be awarded along with the costs of the proceedings to meet the larger interest of justice. 3. Brief facts leading to filing of this case are that the petitioner was directly recruited and posted as Assistant Engineer (Civil) on a Class II Gazetted post on 18.9.1979. Thereafter, he had been performing his duties to the utmost satisfaction of all concerned till his superannuation i.e. 31.12.2015. Before superannuation, the petitioner was promoted as Executive Engineer in April, 2015. Thereafter, a query was raised to the effect that whether the petitioner would be entitled for two advance increments as granted to him earlier. In response to the query, the respondent No.3 by the impugned order dated 31.12.2015 advised the respondent No.4 that the petitioner is not entitled to grant the increment in question. In view of the aforesaid, the respondent No.2 passed an order dated 6.1.2016 for deduction of Rs.4,12,803/- pertaining to the two increments given to the petitioner with interest thereon and the said amount to be deducted out of gratuity payable to the petitioner. Hence, this petition. 4. Learned counsel for the petitioner contended that the impugned order of recovery is not only detrimental to the petitioner but at the same time there is also deduction in the amount of salary and consequent deduction in the amount of pension. Hence, this petition. 4. Learned counsel for the petitioner contended that the impugned order of recovery is not only detrimental to the petitioner but at the same time there is also deduction in the amount of salary and consequent deduction in the amount of pension. Learned counsel for the petitioner further submitted that there is no misrepresentation on the part of the petitioner and, therefore, the order of recovery from his retiral dues is not sustainable in the light of decision of the apex Court in the case of State of Punjab and others v. Rafiq Masih (White Washer) etc ( (2015) 4 SCC 334 ). It is submitted that no undertaking whatsoever with regard to recovery towards wrong fixation was given by the petitioner at any point of time. It is further submitted that respondents have not paid a single penny towards his retiral dues i.e. pension, gratuity, leave encashment etc. and withheld the entire amount due on retirement only towards recovery of Rs.4,12,803/-. As such, the impugned order of recovery is liable to be quashed and the respondents may further be directed to release the entire retiral dues with interest on its delayed payment. 5. On the other hand, learned counsel for the respondents opposed the prayer and submitted that the undertaking was given by the petitioner at the time of retirement and in view of the undertaking, the matter is pending before the Larger Bench. Hence, the respondents have rightly withdrawn the two advance increments granted to the petitioner. To buttress his submissions, learned counsel for the respondents has placed reliance on decision of the apex Court in the case of Chandi Prasad Uniyal and others v. State of Uttarakhand and others ( (2012) 8 SCC 417 ), wherein it is held that payment made due to irregular/wrong pay fixation due to mistake of Authorities concerned can be recovered. As such, the petition is liable to be dismissed. 6. In reply, learned counsel for the petitioner submitted that no undertaking was furnished at the time of grant of two advance increments, therefore, the undertaking furnished at the time of retiral dues would not come to the rescue of the respondents. 7. Heard, learned counsel for the parties. 8. As such, the petition is liable to be dismissed. 6. In reply, learned counsel for the petitioner submitted that no undertaking was furnished at the time of grant of two advance increments, therefore, the undertaking furnished at the time of retiral dues would not come to the rescue of the respondents. 7. Heard, learned counsel for the parties. 8. The issue regarding recovery from the employees either in service or after attaining the age of superannuation is no more res integra and has been settled in the case of Rafiq Masih (supra) wherein the apex Court in Para-12 has postulated certain categories and observed that the recovery from them is impermissible. Para -12 is relevant, which is reproduced thus:- “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 decision referred to herein above, we may, as a 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 the retired employees, or 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. (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.” (Emphasis supplied) 9. Admittedly, in the case in hand, no undertaking has been given by the petitioner. The ratio laid down in the case of Chandi Prasad Uniyal (Supra) is of no avail to the respondents/State, inasmuch as the same has been considered by the apex Court in the case of Rafiq Masih (supra) and thereafter the guidelines, as quoted above, have been framed. The ratio laid down in the case of Chandi Prasad Uniyal (Supra) is of no avail to the respondents/State, inasmuch as the same has been considered by the apex Court in the case of Rafiq Masih (supra) and thereafter the guidelines, as quoted above, have been framed. Moreover, the respondents could not have withheld the retiral dues of the petitioner including full pension, gratuity etc. As such, the impugned action of the respondents could not withstand the scrutiny of law and is liable to be set aside. 10. In view of the aforesaid, recovery order dated 26.12.2015 (Annexure P/6) is hereby quashed. Respondents are also directed to refund the amount of Rs.4,12,803/-, if already recovered. 11. Respondents are further directed to restore the pension of the petitioner by recording two advance increments as were part of the salary and calculate all the retiral dues accordingly. Arrears, if any, be paid to the petitioner within three months from the date of receipt of certified copy of the order. 12. So far as the payment of interest on delayed payment of retiral dues is concerned, the apex Court in a recent decision in the case of The State of Andhra Pradesh and another v. Smt. Dinavah Lakshmi Kameswari (Civil Appeal No.399 of 2021) arising out of Special Leave to Appeal (C) No.12553/2020 has held as under:- 14. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that the rate of 12% per annum which has been fixed by the High Court should be suitably scaled down. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that the rate of 12% per annum which has been fixed by the High Court should be suitably scaled down. While learned counsel for the respondents submits that the award of interest was on account of the action of the Government which was contrary to law, we are of the view that the payment of interest cannot be used as a means to penalize the State Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate. 15. We accordingly order and direct that in substitution of the interest rate of 12% per annum which has been awarded by the High Court, the Government of Andhra Pradesh shall pay simple interest computed at the rate of 6% per annum on account of deferred salaries and pensions which a period of thirty days from today. This direction shall, however in the facts and circumstances, be confined to categories 3, 4, 5 and 6 of GOMs No.26 dated 31 March 2020. We clarify that interest shall be paid to all pensioners of the State at the rate of 6% per annum on the deferred portion, for the period of delay. Having regard to the prevailing bank interest, the rate of 12% per annum which has been fixed by the High Court, would need to be and is accordingly reduced. 13. In view of the aforesaid, petitioner shall also be paid simple interest computed at the rate of 6% per annum on the delayed payment of entire retiral dues from the date of his entitlement till final payment is made within the aforesaid period of three months. 14. The petition stands allowed to the extent indicated hereinabove. 15. No order as to costs.