Madhya Pradesh High Court
K.L.Makashre vs Sanchalnalaya Udhyaniki Evam ... on 1 November, 2017
1 W.P. No.4003/2017
W.P. No.4003/2017
Indore, Dated : 1.11.2017
Shri Milind Phadke, learned counsel for the petitioner.
Shri Romesh Dave, learned counsel for the State.
Heard finally.
By this writ petition the petitioner has challenged the order
dated 7.2.2017, whereby a recovery of a sum of Rs.1,64,807/-
has been done at the verge of his retirement. The petitioner has
retired on 31/3/2017.
The case of the petitioner is that he was initially appointed
as Assistant Grade-III on 10.2.1988 and on 19.7.2000 he was
granted the benefit of 1st Kramonnati and on 4.1.2010 he was
given the benefit of the 1 st Time Scale of Pay w.e.f. 1.4.2016 and
subsequently given the benefit of 2 nd Time Scale of Pay and at
the verge of his retirement the impugned order of recovery has
been passed.
The respondents have filed the reply taking the stand that
the petitioner was to be granted the benefit of the increment w.e.f. 1.1.1998 but by mistake he was given the said benefit w.e.f. 1.1.1997 which had resulted into excess payment to the petitioner and an objection was taken by the Joint Director, Accounts & Pension therefore, the impugned recovery has been directed. The respondents have also placed reliance upon the undertaking (Annexure R/8) with the plea that by the said letter the petitioner has given consent for the recovery.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the recovery is for the period 2006 to 2017 which has been made on the ground of 2 W.P. No.4003/2017 wrong pay fixation. The recovery has been made just before his retirement. The petitioner has not been given any opportunity of hearing before effecting the impugned recovery. It is also noticed that the supreme court in the matter of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc 2015(1)MPHT 130(SC) considering the issue of recovery of the amount and hardship caused in consequent thereto in similar circumstances has held as under:-
"12] 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 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."
The case of the petitioner is squarely covered by Clause 12 (i), (ii) and (iii) of the aforesaid para. Hence, in view of the judgment of the supreme court, the respondents cannot be permitted to make the recovery at this stage.
3 W.P. No.4003/2017So far as the issue of undertaking is concerned, the said undertaking was not taken at the time when the benefit of the increment was extended, but the said undertaking is undated and for the pay scale, whereas the recovery is for wrongly giving the increment from the back date, therefore, on the basis of the said undertaking the respondents cannot take the plea that the recovery is justified. The reliance placed by the respondents in the matter of High Court of Punjab & Haryana & Ors Vs. Jagdev Singh (2016)14 SCC 267 is misplaced in the facts of the present case and the same has been distinguished by the coordinate Bench while considering similar controversy in the matter of Km.Mridula Saxena Vs. State of MP & Ors passed in WP No.7497/2012 by order dated 11/5/2017. In Km. Mridula Saxena (supra) it has been held as under:-
"8- Bearing in mind the aforementioned law laid down by the Hon'ble Supreme Court in the context of aforementioned relevant considerations, if facts of the case in hand are examined, it is found that for the benefits of V Pay Commissioner w.e.f 01/01/1996 and VI pay commission w.e.f 01/01/2006, the recovery has been initiated in the month of September, 2012, purportedly, on the strength of audit objection in the year 2010, therefore, no recovery after a gap of more than 25 years could be initiated on the strength of undertakings given by the petitioner as contained in Annexure R/1, on the premise that revision of pay under V pay commission has been implemented in the year 1998 and that of VI pay commission in the year 2009. Further, looking to the law laid down by the Hon'ble Supreme Court in the aforesaid case that no recovery from the employees belonging to Class III and Class IV employees can be made due to wrong fixation of pay, this Court is of the view that the aforesaid impugned recovery cannot be sustained for more than one reasons; (a) there is no 4 W.P. No.4003/2017 explanation forthcoming in the counter-affidavit filed by the respondents about the undue delay caused in effecting recovery in the month of September 2012, in relation to the pay revisions of the years 1996 and 2006, except the alleged audit objection of the year 2010 in the service book of the petitioner (Annexure P/1), however, no prior notice or opportunity of hearing was afforded to the petitioner; (b) admittedly, it is not the case of respondents that the petitioner has misrepresented or suppressed relevant information or played fraud in furtherance of object of securing revised pay scales; and (c) it is also not the case of the respondents that the petitioner in any manner whatsoever was associated in the act of fixation of pay scales.
Under such circumstances, it will be unfair, unreasonable and iniquitous to subject the petitioner for the impugned recovery, merely on the strength of alleged undertakings given by the petitioner at the time of extension of the benefit of revision of pay scales as contained in Annexure R/1.
9. The subsequent judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) in the opinion of this court is distinguishable and not found to be applicable to the facts of the case in hand. It was a case of a judicial officer having been extended the benefit of revised pay scale with an undertaking given simultaneously, and in the light thereof, he has been held to be bound by the undertaking, therefore, his case is not found to be covered under clause (ii) of Para 18 of the judgment of Hon'ble Supreme Court in the case of Rafiq Masih & Ors (supra). Hence, the respondents cannot derive any advantage of the aforesaid later judgment of the Hon'ble Supreme Court, i.e., Jagdev Singh (supra). The petitioner herein is a Class III employee found to be covered under clause (i) of para 18 in the case of Rafiq Masih & Ors (supra) which provides that no recovery shall be made from class III and Class IV employees as quoted above. Consequently, the recovery so ordered against the petitioner is found to be not sustainable. The impugned recovery 5 W.P. No.4003/2017 (Annexure P/2) is set aside, pursuant to which, if any amount is recovered from the petitioner, the same shall be refunded to the petitioner within three weeks from the date of production of certified copy order passed by this Court. However, the respondents are set at liberty to correct the revision in pay scale of the petitioner, prospectively as the mistake committed earlier in point of time cannot be permitted to be perpetuated in all times to come; meaning thereby, the pay fixation of the petitioner may be done, in accordance with entitlement under intimation to the petitioner."
The division bench of High Court of Rajasthan at Jodhpur in D.B.Civil Special Appeal (W) No.349/2014 in the matter of Mohammed Yusuf Vs. Maharana Pratap Agriculture & Technology and another vide order dated 24/11/2016 considering the similar controversy has held as under:-
"In the case in hand it is not disputed that the fixation impugned were made atleast 10 years earlier ie. From the date the respondent University pass an order to effect recovery. It is also the position admitted that the appellants prior to their retirement were in employment of the University on the post of Technician/Junior Mechanic, the posts is Group-C cadre and the appellants stood retired from service much back in the year 2002. So far as the issue with regard to undertaking given by them is concerned, that cannot be equated with the undertaking given by the Officer whose case was dealt with by the Hon'ble Apex Court in the State of Punjab & Haryana & Ors (supra). In the case aforesaid, the person concerned was a civil judge (Junior Division) and further the undertaking given by him was in quite specific terms that any payment found to have been made in excess would be liable to be adjusted and further that fixation of the refund made was to be used for adjustment of excess payment, if any given.
In the instant matter, the undertaking said to be given is in a proforma that simply mentions for refund of over payments, if any made, on account of incorrect 6 W.P. No.4003/2017 fixation. The undertaking is a part of proforma and it is well known that the persons belonging to lower posts put signatures on such undertaking without application of mind.
In these circumstances, we are of the considered opinion that cases of the present appellants are required to be dealt with in accordance with law laid down by the Apex Court in the case of Refiq Masih (supra).
The appeals are accordingly allowed. The judgment impugned dated 24.2.2004 passed by the learned Single Bench is set aside. The writ petitions preferred by the petitioners are allowed to the extent that the respondent University shall not effect any recovery from pay/pensionary benefits/post retiral benefits or otherwise from them on account of the amount said to be paid in excess while awarding selection grades or making pay fixation."
Having regard to the aforesaid, I am of the opinion that the plea in defence taken by the State on the basis of the undertaking is without any merit.
Having regard to the aforesaid factual and legal position, in my considered opinion the impugned recovery cannot be sustained and is hereby set aside. However, pay fixation is maintained. The amount already recovered in pursuance to the impugned order be refunded to the petitioner within a period of three months from the date of receipt of certified copy of this order.
The writ petition is accordingly disposed of.
C.C. as per rules.
(Prakash Shrivastava) Judge trilok/-
Trilok Digitally signed by Trilok Singh Savner DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, Singh postalCode=452001, st=Madhya Pradesh, 2.5.4.20=5e17c79b9e2cc6e5f119cb 23d5c02e921be96a009cd5a4db8c4 Savner 3907729e8e93c, cn=Trilok Singh Savner Date: 2017.11.08 14:54:55 +05'30'