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Madhya Pradesh High Court · body

2024 DIGILAW 757 (MP)

Sangita Agnihotri v. State of M. P.

2024-12-05

VIJAY KUMAR SHUKLA

body2024
ORDER 1. The petitioner is challenging the order of recovery from deceased employee on the ground of wrong fixation of pay. 2. The facts of the case are that the husband of the petitioner was initially appointed as Assistant Sub-Inspector (M) and thereafter he was promoted on the post of Sub-Inspector (M). He died in harness on 20.10.2015 when he was working on the post of Sub-Inspector (M) in the office of Superintendent of Police Special Branch (Rail), Indore. 3. Counsel for the petitioner submits that on 15.3.2016, the respondents proposed to be recovered an amount Rs.20,96,548/- (principal Rs.12,79,696/- + Rs.8,16,852/- interest) from her deceased husband without there being any fault on the part of the deceased employee under various heads as excess payment alleged to have been made during the service of the husband of the petitioner and the recovery was done from the arrears of pension, GPF, leave encashment on 5.4.2023. By order dated 15.3.2016, 5.4.2023 and 26.4.2023 the respondents proposed to be recovered the amount against her husband. 4. Counsel for the State submits that the respondents have recovered only the principal part out of the said amount from the retiral dues of the deceased employee. 5. Counsel for the petitioner submits that the recovery cannot be made in the light of the judgement passed by the apex Court in the case of State of Punjab v. Rafique Masih (White Washer) , (2015) 4 SCC 334 . He further submits that it is not the case of the respondents that the deceased employee has made any misrepresentation or cheating with the department. 6. After hearing learned counsel for the parties and considering the fact that it is not the case of the respondents that there was any misrepresentation of fact or any fraud or cheating played by the petitioner with the department. 7. 6. After hearing learned counsel for the parties and considering the fact that it is not the case of the respondents that there was any misrepresentation of fact or any fraud or cheating played by the petitioner with the department. 7. The Full Bench of this Court at Principal Seat, Jabalpur in identical matters has quashed such recovery orders by judgment dated 6.3.2024 passed in Writ Appeal No.815 of 2017 (State of Madhya radesh and Another v. Jagdish Prasad Dubey and Another) and connected writ petitions reported in 2024 SCC online MP 1567, it has been held in paragraph No.35 as under: "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 and Another v. Brojo Nath Ganguly and Another, reported in (1986) 3 SCC 136 unless the undertaking is given oluntarily." 7. In the case of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 , the Apex Court while observing that the petitioners therein were not entitled to the higher pay scales, had come to the conclusion that since the amount has already been paid to the petitioner, for no fault of theirs, the said amount shall not be recovered by the respondent/Union of India. The observation made by the apex Court in the said case is as under:- ''Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-506 but as they have received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them.'' 8. In the case of Sahib Verma v. State of Haryana (1995) Supp. (1) SCC 18, the apex Court once again held that although the employee did not possess the required educational qualification, yet the Principal granting him the relaxation,, had paid the salary on the revised pay scale. It was further observed that the said payment was not on account of misrepresentation by the employee, but by a mistake committed by the department and, therefore, the recovery could not have been made. It was further observed that the said payment was not on account of misrepresentation by the employee, but by a mistake committed by the department and, therefore, the recovery could not have been made. The relevant observation of the apex Court is reproduced as under:- ''Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which appellant cannot be held to be fault. Under the circumstances the amount paid till date may not be recovered from the appellant." 9. In the case of Syed Abdul Kadir v. State of Bihar (2009) 3 SCC 475 , the apex Court held that recovery of excess payment from a retired government servant cannot be made if there is no mis-representation or fault on the part of the employee. 10. In view of the aforesaid enunciation of law and the fact that it is not the case of the respondents that the deceased employee has made any misrepresentation or cheating with the department, therefore, the recovery of an amount of Rs.12,79,696/- is quashed. Since the amount has already been recovered from the pension leave encashment, GPF and other emoluments, the same is directed to be refunded to the petitioner along with 6% interest from the date it has become due till the same is paid. Let the aforesaid exercise be done within a period of three months from the date of communication of the order passed today. 11. With the aforesaid, the petition is allowed and disposed off soumya