Madhya Pradesh High Court
Ratan Singh Bhagat vs The State Of Madhya Pradesh on 9 February, 2018
THE HIGH COURT OF MADHYA PRADESH
W.P.NO. 9285/2014
Indore, Dt. 9.2.2018
Shri V.K.Patwari, counsel for the petitioner.
Shri Abhinav Malhotra, counsel for the
respondent/State.
The petitioner who is a retired employee has come before this court being aggrieved by the 28.10.2014 whereby recovery of a sum of Rs.1,39,988/- has been directed against the petitioner.
The case of the petitioner is that petitioner retired from the post of Multipurpose Health Worker which is a Class-III post on 31.10.2014 on reaching the age of superannuation and while settling the pensionary dues of the petitioner, the respondents have passed the impugned order on the ground that on 1.4.1986 petitioner was granted the payscale of Rs.950-1530/- and was fixed at Rs.1000/- whereas he should be fixed at Rs.950/-. The respondents have filed the pay fixation done earlier and revised pay fixation done in the case of the petitioner.
Learned counsel for petitioner submits that the impugned recovery has been directed against the petitioner without any opportunity of hearing and that the benefit was extended to the petitioner not on account of any misrepresentation or fraud. He has further submitted that the impugned recovery after his retirement, will cause serious hardship to the petitioner. He has placed reliance upon the judgment of the Supreme Court in the matter of Shyam Babu Verma Vs. Union of India and others reported in 1994(2) SCC 521, in the matter of Sahibram Vs. State of Hariyana and others reported in 1994(2) SCC 52, in the matter of Syade Abdul Qadir and others Vs. State of Bihar and others reported in 2009(3) SCC 475.
Counsel for the respondents submits that since the benefit was wrongly extended, therefore, it has been withdrawn. He has placed reliance upon the judgment of the Supreme Court in the matter of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in 2012(8) SCC 417.
This court has carefully gone through the pay fixation done by the respondents.
Undisputedly there is a mistake committed by the Department in the matter of pay fixation but the fact remains that the petitioner was a class-III and low paid employee and is now surviving on meager amount of pension and impugned recovery order after the retirement of the petitioner will cause great hardship to the petitioner.
The division bench of this court by the judgment dated 9th November 2012 in W.A. No.168/2012 (State of M.P. and others Vs. Om Prakash S/o Daulat Singh Pure) has considered the judgment of the Supreme Court in the matter of Chandi Prasad Uniyial (supra) as well as the issue of hardship and has held as under:-
"7. We have gone through the order passed by the Supeme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others (supra). We find that the Supreme Court in the said judgment has observed the directions contained in the case of Syed Abdul Qadir (2009) 3 SCC 475 and Col. B.J. Akkara (2006) 11 SCC 709 as also in the case of Shyam Babu Verma 1994(2) SCC 521 and Sahib Ram 1994(2) SCC 52 wherein the department is restrained from recovery of excess amount keeping in view the peculiar facts and circumstances of the case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
8. In the present case also, the benefit extended to the writ petition was sought to be recovered on his retirement. In our considered view, this if allowed to stand, would cause great hardship to a retired employee.
9. In the circumstances, we are of the view that no case for interference in the order passed by the learned Single Judge is made out.
10. As a result, the appeal fails and is hereby dismissed."
The present case is also a case similar to the one which has been decided by Division Bench of this Court as above. The supreme court also recently in judgment in the matter of State of Punjab Vs. Rafiq Masih reported in AIR(SC) 2015- 696 has categorised the cases of the employees where hardships may be caused to them on account of the recovery due to the payment mistakenly made by the employer by holding 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 ex- cess of their entitlement. Be that as it may, based on the deci- sions 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 re- quired 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." As the petitioner is not only a class-III employee but he is also a retired employee and recovery has been directed after his retirement, and that too for the period since 1986 to 2014, therefore in view of sub paras (i),(ii) & (iii) of the above judgment the impugned recovery cannot be sustained.
Keeping in view the fact that the petitioner had retired on 31/10/2014 and after the retirement the respondents have passed the impugned order of recovery, therefore, it is found that it is a case where serious hardship will be caused to the petitioner who is a retired employee if the respondents are permitted to recover the amount in pursuance to the impugned order.
Considering the aforesaid, the writ petition is allowed and the impugned recovery for a sum of Rs.1,39,988/- is hereby set aside. However, pay fixation is maintained. The respondents are directed to refund the amount recovered in pursuance to the impugned order within a period of three months from the date of receipt of certified copy of this order.
C.C. as per rules.
(S.C.Sharma) Judge mk Digitally signed by Mukta Koushal Date: 2018.02.14 10:46:19 +05'30'