Madhya Pradesh High Court
Sundarlal Mandeliya vs The State Of Madhya Pradesh on 21 January, 2025
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2025:MPHC-GWL:1165
1 WP-2743-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 21 st OF JANUARY, 2025
WRIT PETITION No. 2743 of 2019
SUNDARLAL MANDELIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Harish Dixit - Senior Advocate with Shri Parth Dixit - Advocate for the
petitioner.
Shri B. M. Patel - Government Advocate for the respondents/State.
ORDER
Both the parties heard finally.
2. Petitioner has preferred this petition under Article 226 of the Constitution of India seeking following reliefs:
"(i) Quashing order dated 09.08.2018 (Annexure P/1) and dated 29.08.2017 (Annexure P/7) to the extent of recovery of excess amount paid to the petitioner.
(ii) Directing respondents to return the amount already recovered from the petitioner in pursuance of order dated 09.08.2018.
(iii) Any other relief which this Hon'ble Court finds appropriate in the matter.
(iv) Costs."
3. Brief facts of the case are that petitioner was initially appointed on the post of Clerk (Grade-II) vide order dated 04.07.1984 (Annexure P/2). He has Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1165 2 WP-2743-2019 passed Hindi Shorthand Examination from Rajya Vayavasayik Pariksha Parishad and having National Trade Certificate in Hindi Shorthand from National Council for Training in Vocational Trades. Vide order dated 01.06.1993 (Annexure P/5), he was granted regular pay scale w.e.f. 30.12.1988 and same benefit has been given to a similarly situated employee by order dated 16.12.2003 (Annexure P/6) passed by this Court. He has never submitted any undertaking indemnifying the respondent in respect of pay fixation made in accordance with order dated 01.06.1993, but the respondent vide impugned order dated 09.08.2018 (Annexure P/1) imposed recovery of Rs.11,03,354/- on account of excess payment paid to the petitioner due to wrong fixation of pay and respondent No.3 has proceeded recover the said amount from the salary of the petitioner. The order of recovery is contrary to the principle of law laid down by Hon'ble Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 and also contrary to the law laid down by Hon'ble Apex Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh reported in (2016) SCC Online SC 748. Being aggrieved by the aforesaid, petitioner has preferred this petition.
4. Learned counsel for the respondents/State opposed the prayer and prayed for its rejection by submitting in their return that petitioner has not passed Hindi Typing Examination, therefore, earlier his pay fixation has wrongly been done in the year 1993 and due to non-passing of Hindi Typing Examination, case of the petitioner was not considered for the purpose of seniority and increment. When the pay of the petitioner was revised in revised pay scale then service book was sent for verification before the Joint Director, Treasury and Accounts and on the basis of objection made by Joint Director that petitioner has not qualified Hindi Typing Examination from recognized Board, therefore, he is not entitled for increment, Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1165 3 WP-2743-2019 hence the impugned order has been passed for cancellation of increment granted to the petitioner. Accordingly, recovery of amount of Rs.11,03,354/- was found to be made from the salary of the petitioner on account of wrong payment due to incorrect pay fixation by granting the increments from 1988, therefore, petitioner is not entitled for the aforesaid relief in the light of the law laid down by Full Bench of this Court in the case of State of M.P. and others vs. Jamuna Prasad Tiwari and others reported in 2018 (2) JLJ 509 and apart from the above, undertaking was given by the petitioner that in case, any excess payment is made, same shall be recovered from the salary and other payments. Thus, the petitioner cannot challenge the aforesaid recovery in the light of law laid down by Hon'ble Apex Court in the case of Jagdev Singh (supra) . Recovery has rightly been made from the petitioner and this petition is misconceived and deserves to be dismissed.
5. Learned counsel for the petitioner also contended in his rejoinder that he has not given any undertaking at the time of alleged wrong pay fixation. Subsequent undertaking at the time of revision of pay does not give authority to the respondents to recover excess amount.
6. Both the parties are heard at length and perused the entire record with due care.
7. From perusal of appointment order of the petitioner dated 04.07.1984 (Annexure P-2), it appears that he has been appointed on the post of Clerk (Grade- II) with a condition that petitioner shall be paid minimum of the pay till passing departmental Hindi Typing Test and will be entitled for regular pay scale from the next day of date of passing Hindi Typing Test. From perusal of the order dated 01.06.1993 issued by the Collector, Shivpuri (Annexure P-5), it appears that in that order, it has been categorically mentioned that petitioner has passed the Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1165 4 WP-2743-2019 departmental Typing Examination on 30.12.1988, therefore, he has been granted regular pay scale w.e.f. 30.12.1988, but later on, respondent No. 3 issued the impugned order dated 09.08.2018 (Annexure P-1) stating that though the petitioner has not passed departmental Hindi Typing Examination, therefore, due to wrong pay fixation, refixation of increment has been done as per the objection made by Joint Director, Treasury and Accounts and imposed recovery of Rs.11,03,254/- on account of excess payment to the petitioner due to wrong pay fixation, but from perusal of entire record, it appears that respondent in the year 1993 categorically admits that petitioner has passed the departmental Hindi Typing Test on 30.12.1988, later on petitioner was remained in service for a period of more than 25 years and he has been granted time to time increments and other benefits of pay scale. During the period of aforesaid 25 years, respondent has not given any notice to the petitioner and not initiated any enquiry against the petitioner that he has not passed the departmental Hindi Typing Test. Nothing has been found on record that the aforesaid order dated 01.06.1993 for fixation has been passed due to any misrepresentation or fraud on the part of the petitioner, therefore, the petitioner cannot be made liable for the aforesaid wrong pay fixation, which has been done by the respondents.
8. It is also contended by respondent that the recovery has been made from the petitioner on the basis of undertaking furnished by the petitioner as he was paid excess payment on account of pay fixation.
9. In the case of State of M.P. and Others Vs. Jagdish Prasad Dubey passed in WA No.815/2017 and other connected matters by order dated 6.3.2024, it has been held by the Full Bench of this Court as under :-
"26. The guidelines would indicate that an undertaking has to be Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1165 5 WP-2743-2019 furnished by the employee to the effect that he will refund the excess payment made to him. It is only on furnishing of such an undertaking, the payment towards revision of pay would be made to him. Therefore, this goes to indicate that an undertaking is required to be furnished at the time when the revision of pay has taken place. The same is also reflected in the judgment in the case of Jagdev Singh (supra). Therefore, the undertaking which is being furnished at the time of extending the benefits of revision of pay to an employee is required to be taken note of. The indemnity bond in the form of an undertaking furnished at the fag end of service career cannot be said to be an undertaking for which the recovery of excess payment which has been made decades ago could become effective. The judgment of the Larger Bench of the Hon'ble Supreme Court in the case of Syed Abdul Qadir (supra) has to be followed. Prior to initiating recovery, exceptional circumstances as pointed out in the aforesaid case are also required to be considered.
27. Hence for all these reasons, we answer the Question No.1 to the effect that recovery can be ordered to be effected from the pensionary benefits or from the salary in view of the undertaking or indemnity bond given by the employee at the stage when the grant of benefit of pay refixation is made."
10. The Hon'ble Apex Court in the case of Rafiq Masih (White Washer) (supra) [para 13, 14, 15 and 18], no recovery can be made from the petitioner/appellant, a Class III Employee, as at no point of time he had given undertaking either at initial stage of employment or at the time of fixation of pay.
Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:1165 6 WP-2743-2019
11. In view of the Clause 18(i), 18(ii) and 18(iii) of Rafiq Masih (White Washer) (supra) quoted below, no recovery can be made from the petitioner:
"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 6 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 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."
12. In the present case, undertaking, which has allegedly been furnished by the petitioner, is of the year 1996, whereas his incorrect pay fixation was made in the year 1993. Thus, the undertaking furnished by the petitioner is not at the time of extending the benefit of pay and increment to him. The aforesaid undertaking furnished by the petitioner at earlier stage cannot be said to be an undertaking, for which recovery of excess payment which has been made long back would become effective. The said undertaking does not give benefit the respondent and the recovery being made from the petitioner is consequently illegal.
13. As a result, petition deserves to be and is accordingly allowed. The Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:1165 7 WP-2743-2019 impugned action directing the recovery to be made from the petitioner vide order dated 09.08.2018 (Annexure P-1) is hereby set aside and amount recovered from the petitioner be refunded to him along with interest of 6% per annum from the date of recovery till the date of payment. Let the same be done within a period of three months from the date of receipt of certified copy of this order.
14. Petition is accordingly allowed and disposed of.
(ANIL VERMA) JUDGE Abhi Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 22-01-2025 05:59:44 PM