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2024 DIGILAW 480 (MP)

State of Madhya Pradesh v. Rajnish Dwivedi

2024-07-03

AMAR NATH (KESHARWANI), SHEEL NAGU

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ORDER Per: THE ACTING CHIEF JUSTICE 1. This writ appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam 2005 filed by the State is against the final order dated 8.3.2022 passed in Writ Petition No.16193 of 2017 by which the learned Single Judge has quashed the recovery and directed the recovered amount to be refunded with interest. 2. Pertinently, the recovery was made by an order passed on 18.8.2017 against respondent/class-III employee who was due for superannuation on 31.10.2017. 3. Learned counsel for the State has relied upon three Judge Bench decision of this Court in a bunch of writ appeals including W.A. No.815 of 2017 (The State of M.P. and others v. Jagdish Prasad Dubey) [reported in 2024(2) JLJ 200 ] where due to cleavage of opinion between different Benches, the matter was referred for resolution and the said three Judge Bench answered the questions raised in the following manner : “Answers to the questions referred 35.(a) Question No.1 is answered by holding that recovery can be effected from the pensionary benefits or from the salary based on the undertaking or the indemnity bond given by the employee before the grant of benefit of pay refixation. The question of hardship of a Government servant has to be taken note of in pursuance to the judgment passed by the Larger Bench of the Hon’ble Supreme Court in the case of Syed Abdul Qadir (supra). The time period as fixed in the case of Rafiq Masih (supra) reported in (2015) 4 SCC 334 requires to be followed. Conversely an undertaking given at the stage of payment of retiral dues with reference to the refixation of pay or increments done decades ago cannot be enforced. (b) Question No.2 is answered by holding that recovery can be made towards the excess payment made in terms of Rules 65 and 66 of the Rules of 1976 provided that the entire procedures as contemplated in Chapter VIII of the Rules of 1976 are followed by the employer. However, no recovery can be made in pursuance to Rule 65 of the Rules of 1976 towards revision of pay which has been extended to a Government servant much earlier. In such cases, recovery can be made in terms of the answer to Question No.1. However, no recovery can be made in pursuance to Rule 65 of the Rules of 1976 towards revision of pay which has been extended to a Government servant much earlier. In such cases, recovery can be made in terms of the answer to Question No.1. (c) Question No.3 is answered by holding that the undertaking given by the employee at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and is therefore not enforceable in the light of the judgment of the Hon’ble Supreme Court in the case of Central Inland Water Transport Corporation Limited (supra) unless the undertaking is given voluntarily.” (Emphasis supplied) 4. Learned counsel for the State submits that the undertaking has undoubtedly been given by the employee at the time of re-fixation of his pay sometime in 1990 and, therefore, it is submitted that the employee is bound by the said undertaking thereby entitling the State to recover the excess payment made consequent upon fixation of pay in 1990. 5. After hearing learned counsel for the State, it appears that respondent-employee is protected by the time period prescribed in State of Punjab and others etc. v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 where apex Court has held 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 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 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.” 6. From the above, it is evident that no recovery can take place from any class-III employee irrespective of the fact whether any undertaking has been given or not, if such recovery is made within one year of retirement. 6.1 The recovery in the present case was made on 18.08.2017 whereas the respondent-employee was due for retirement on 31.10.2017. 7 . In view of above, the present writ appeal having no substance is dismissed as such.