Madhya Pradesh High Court
Banbari Singh Yadav vs The State Of Madhya Pradesh on 6 March, 2018
THE HIGH COURT OF MADHYA PRADESH
W.P. No.22249/2015
Jabalpur, Dated: 06/03/2018
Shri Rahul Mishra, learned counsel for the petitioner.
Shri Rahul Mishra, Government Advocate for the State.
In this petition filed under Article 226 of the Constitution,
challenge is made to the order Annexure P/2 and Annexure P/3
whereby respondents have decided to recover the amount from the
retiral dues of the petitioner.
Petitioner has challenged the recovery on the ground that (i) before taking adverse decision of recovery, principles of natural justice were not followed; (ii) no reason or break-up is given in the order of recovery; (iii) recovery is impermissible from a Class-II/IV or retired employee; (iv) the alleged undertaking does not recover the case of the petitioner and such undertaking in the light of recent judgment of Division Bench of this Court passed in W.A. No.58/2017 (Smt. Shanti Bavari vs. State of M.P. and others) amounts to an "unconscionable contract".
The petitioner has challenged the order dated 21.12.2015 Annexure P/8 by way of amendment. During the course of arguments, the petitioner pressed his relief to the extent of recovery only.
The other side opposed the relief on the basis of return filed. This is not in dispute that before inflicting recovery, no opportunity of hearing was given nor any reason or break-up was given in the impugned order of recovery. In State of Punjab and others Vs. Rafique Masih (white washer)- (2015) 4 SCC-334), the recovery was held to be impermissible in following situation:
"(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, where 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 Division Bench held that undertaking cannot be a ground to recover the amount of over payment. Looking from any angle, impugned recovery cannot sustain judicial scrutiny. Accordingly, impugned recovery is set aside. If any amount is already recovered from the petitioner, it shall be refunded to the petitioner within 90 days from the date of production of copy of this order, failing which it will carry 12% p.a. interest.
Petition is allowed.
(Sujoy Paul ) Judge YS Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2018.03.08 16:02:07 +05'30'