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Madhya Pradesh High Court · body

2023 DIGILAW 962 (MP)

Manish Jaiswal v. State of M. P.

2023-12-01

RAJ MOHAN SINGH

body2023
ORDER 1. The petitioner has preferred this writ petition, assailing the order dated 13.3.2019 (Annexure P-2) passed by the respondent No.4/Divisional Forest Officer, Shahdol. 2. Perusal of the order dated 13.3.2019 shows that the pay fixation of the petitioner was found to be erroneous and an amount of Rs.1,42,318/- was directed to be deposited along with an interest by means of challan before 25.3.2019. In the event of failure to do so within the time prescribed, the amount along with interest shall be recovered from the monthly salary of the petitioner. 3. Learned counsel for the petitioner submits that the pay fixation was done for the period with effect from July 2009 to December 2015. The petitioner had no role to play in the aforesaid fixation and he never misrepresented before the respondent/department nor was any fraud played by the petitioner in any manner in the context of the getting pay fixation from the respondent/department. The petitioner is a Class-III employee working as Forest Guard in the respondent department. Besides the order in question, interest @ 12% per annum from June 2011 has been levied on the alleged recoverable amount, which according to the learned counsel for the petitioner is hit by doctrine of “Audi Alteram Partem”. No notice was ever issued by the respondent No.4 before passing the order dated 11.3.2019. The petitioner was initially appointed as Forest Guard on probation, and on 18.8.2008 on completion of probation period, the petitioner was confirmed and since then he is holding Class-III post. No departmental enquiry was ever conducted against the petitioner nor was any misconduct alleged at any point of time. 4. The pay fixation for the period July 2009 to December 2015 was a voluntarily act of the respondent/department in which the petitioner has not played any role whatsoever. The recovery is sought to be effected on the basis of alleged undertaking given by the petitioner on 14.11.2017. 5. Learned counsel for the petitioner submits that consequent to the aforesaid undertaking, the impugned order has been passed on 11.3.2019 i.e. the day on which even recovery based on the alleged wrong fixation of pay scale had become time barred. Even otherwise the alleged undertaking does not relate to the alleged wrong fixation of pay from July 2009 to December 2015. 6. Even otherwise the alleged undertaking does not relate to the alleged wrong fixation of pay from July 2009 to December 2015. 6. Bare perusal of the undertaking would show that the same was in respect of the benefits arising out of 7th Pay Commission with effect from 1.1.2016 and does not cover the pay fixation from July 2009 to December 2015. The undertaking dated 14.11.2017 is reproduced here as under :--. izi=&rhu opu i= ¼ Undertaking ½ eq>s ;g Kkr gS fd fnukad 1-1-2016 ls Lohd`r e/;izns'k osru iqujh{k.k fu;e 2017 ds izko/kkuksa ds varxZr esjk tks osru fu;ru vHkh iqujhf{kr osru esfVªDl esa fd;k x;k gS og vufUre ¼ Provisional ½ gSA esa opu nsrk@nsrh gw¡ fd eSa jkT; 'kklu dks og laiw.kZ jkf'k tks fd osru fu;ru eas vfu;ferrk ds dkj.k rFkk vU; dksbZ Hkh /kujkf'k tks fd bl izdkj osru fu;ru ds dkj.k eq>s vf/kd Hkqxrku fd xbZ gS] 'kklu ds funsZ'kksa ds vuq:i fu/kkZfjr jkf'k okil d:axk@d:axh rFkk bl izdkj dh jkf'k esjs ns; Lorksa ls ftuesa isa'ku] xzsP;qVh ,oa vodk'k uxnhdj.k dh jkf'k Hkh lfEefyr gS] dkVh tk ldsxhA eSa ;g Hkh opu nsrk@nsrh g¡w fd ;fn mDrkuqlkj esjs }kjk ns; jkf'k dks esa ykSVkus esa vleFkZ jgrk@jgrh gw¡] rks bl ns; jkf'k dh okilh ds fy, esa vius mRrjkf/kdkfj;ksa] fu"ikndksa] izfrfuf/k;kasa vkSj leuqnsf'kfr;ksa dks vkc) djrk@djrh gw¡ eSa ;g Hkh lgefr nsrk@nsrh gw¡ fd esjs }kjk ns; jkf'k eq>ls jktLo fd cdk;k ds :i es olwy dj yh tk,A 7. Evidently, the following important aspects are attached to the present case :-- (a) The fixation of pay with effect from July 2009 to December 2015 was a voluntarily act of the respondent/department. (b) The petitioner has not played any overtact in getting the aforesaid fixation done by means of any misrepresentation or fraud. (c) The petitioner being a Class-III employee is protected from such recovery, which has been made mistakenly in excess of his entitlement. The case of the petitioner is covered under the situations of hardship as enumerated in the case of State of Punjab and others v. Rafiq Masih, reported in (2015) 4 SCC 334 . Para 18 of the aforesaid judgment reads 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. Para 18 of the aforesaid judgment reads 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 hereinabove, 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 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.” (d) The alleged undertaking even in view of the nature of recital made does not relate to the period from July 2009 to December 2015, and the undertaking even if considered to be on its face value, could have been made applicable with perspective effect. The undertaking is in respect of the benefits drawn by the petitioner, which accrued to him on account of implementation of the 7th Pay Commission. (e) The impugned order has been passed without affording any reasonable opportunity of hearing to the petitioner, and the same is hit by the doctrine of “Audi Alteram Partem”. 8. In view of the aforesaid factual position, the ratio of the High Court of Punjab & Haryana and others v. Jagdev Singh, reported in 2016(4) SCT 286 in the context of giving undertaking is also misplaced, as the undertaking in question does not relate to the period in question. The undertaking being given on 14.11.2017 is prospective in nature and cannot be applied with retrospective effect i.e. for the period from July 2009 to December 2015. 9. The undertaking being given on 14.11.2017 is prospective in nature and cannot be applied with retrospective effect i.e. for the period from July 2009 to December 2015. 9. The mandate of law as laid down in the case of Rafiq Masih (supra), does not contemplate any such recovery to be effected from the petitioner, even if the petitioner is in service. The undertaking dated 14.11.2017 has also no legs to stand in the light of the circumstances in which the undertaking was given i.e. for the benefits accrued and paid to the petitioner on account of implementation of 7th Pay Commission. There is no undertaking for the period July 2009 to December 2015, and by any stretch of imagination, the same cannot be applied for the period in question. Vide order dated 2.4.2019, the operation of the impugned order has already been stayed. 10. Taking into consideration the facts and circumstances of the instant case I find that the impugned order is totally illegal inasmuch as that the same is against the spirit of ratio of Rafiq Masih’s case (supra). The impugned order besides being illegal is also hit by the doctrine of “Audi Alteram Partem”. The order is also found to be totally non-speaking on the face of it. 11. For the reasons recorded hereinabove I deem it appropriate to quash the impugned order dated 13.3.2019 (Annexure P-2) and the petitioner is not liable to pay any such amount, which has been allegedly paid to him on account of fixation of pay for the period from July 2009 to December 2015. Consequently, the writ petition is allowed.