Madhya Pradesh High Court
Ram Siya Kanojia vs The State Of Madhya Pradesh on 10 October, 2012
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No. 18268/2011(s)
Ram Siya Kanojia
Vs.
State of Madhya Pradesh and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Ramnaresh Vishwakarma, learned counsel for the
petitioner.
Shri Samdarshi Tiwari, learned Government Advocate for
the respondents No. 1 to 5.
ORDER
(10.10.2012) The petitioner has come before this Court ventilating his grievance against the order dated 06.07.2010 Annexure P-4, by which after his retirement, verifying the pay of the petitioner, it has been held that the petitioner was paid the amount in excess to the amount due to him as wrong fixation was done. It is contended that the petitioner was not responsible for such excess payment of salary as neither the salary was revised by him in the revised pay scale nor he made 2 any representation in that respect. If at the time of retirement such an objection was raised, the same was not to be accepted in terms of the law laid down by the Apex Court in the case of Sahib Ram Vs. State of Haryana and others, 1995 Supp (1) SCC 18. It is contended that in similar circumstances, this Court in the case of Bholaram Barmaiya Vs. State of M.P. and others, W.P. No. 14627/2007 and in other analogous petitions has passed the order on 25.01.2011 quashing such order of recovery. It is contended that only because of such act, since the recovery is ordered against the petitioner, the same is liable to be quashed.
2. Per contra, it is contended by learned Government Advocate that the revision of pay Rules were made and the salary of the petitioner was fixed way back in the said revised pay scale. Such revision was done erroneously and excess payment of salary was made to the petitioner. At the time of retirement, it was found that the petitioner was paid an amount of Rs. 53,727/- in excess to the amount payable to him and, therefore, it was directed that the said amount be recovered in 297 instalments from the pension of the petitioner. The said return of the respondents was not found sufficient, therefore, on the orders of this Court, an additional return has been filed by the respondents categorically 3 demonstrating that the petitioner was required to furnish an undertaking as prescribed under the relevant revision of pay Rules and such undertakings were given by the petitioner on 16.04.1983 and 31.05.1990. In the said undertaking, it was categorically said that the revision of pay of the petitioner was provisional and if after finalization of pay fixation, it is found that excess amount was paid to the petitioner, the same will be refunded by the petitioner or else it would be recovered from the salary of the petitioner or from the pension and gratuity. In case of death of the person concerned, it was further prescribed in the undertaking that the recovery would be made from the legal heirs and the said amount would be recovered treating it as arrears of land revenue. It is thus contended by the respondents that in view of the aforesaid clear undertaking, the petitioner was required to refund the amount, but since the said amount was not refunded, ultimately the recovery was ordered from the retiral dues of the petitioner. It is contended that such a claim made by the petitioner in the writ petition is misconceived and as such the petition is liable to be dismissed.
3. After hearing learned counsel for the parties at length and after perusing the record, this Court is of the considered opinion that such a stand taken by the 4 respondents cannot be accepted at all. Firstly, it was the duty on the part of the respondents-authorities to get the pay fixation of the petitioner finalized as soon as the same was made and the same was required to be pre-audited and post- audited by the competent authority of the respondents. These are the specific provisions made in the Financial Code issued by the State Government in exercise of its power under the Financial Act. It is nowhere indicated in the return that at any point of time the pay of the petitioner after its revision was finalized. The undertaking obtained from the petitioner was applicable upto the period the pay revision was not finalized. However, it was not the responsibility of the petitioner to get his pay revision finalized from the competent authority. Again it was the gross lapses on the part of respondents-authorities of not finalizing the pay revision of the petitioner timely. For any such act, only on the strength of such undertaking obtained from the petitioner, after his retirement nothing could be recovered from the petitioner.
4. The law in this respect is very clear. In the case of Sahib Ram (supra), the Apex Court has categorically prescribed that the recoveries from the employees can be affected only if it is found that the employee concerned was responsible for causing such loss to the State exchequer or that he has 5 misrepresented the fact before the authorities for obtaining any benefit for himself. This particular aspect was again considered by this Court in the case of Mahendra Kumar Dubey Vs. State of M.P. and others, W.P. (s) No. 3075/2003, in which it was observed thus:-
"With respect to recovery of amount due to wrong fixation of special pay/allowance, the Apex Court in Sahib Ram V. State of Haryana and others, 1995 Supp (1) SCC 18, has laid down that in the case pay-scale has been given without any misrepresentation and benefit of higher pay scale was given by wrong construction made by the principle, it would not be appropriate to recover the amount from the employee. The Apex Court has held thus :-
"5. 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 principle for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.
The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
6
5. The Apex Court has also considered these aspects in earlier occasions and also in the case of Shyam Babu Verma and others Vs. Union of India and others, 1994 (2) SCC
521. The Apex Court has laid down thus:-
" 11. 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.330-560 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. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."
6. The aforesaid decision and pronouncement of law have been considered by the Division Bench of this Court in the case of Sukhram Madhekar Vs. State of M.P. and others in W.A. No. 1722/2007 and taking into consideration the law laid down by the Apex Court in the case of Sahib Ram (supra), it has been categorically held that if the pay fixation was erroneously done and the same was not rectified at the relevant time, after the retirement no recovery whatsoever 7 could be made from the persons like petitioner. However, it is always open to the State Government to make recovery of any loss caused to the State exchequer on account of negligence or failure to discharge of duties by the responsible officers who were required to approve the revision of pay of the petitioner timely and who have not cared to do so at the relevant time. At the most, nothing can be recovered from the petitioner.
7. Consequently, this writ petition is allowed. The order impugned directing the recovery of any amount alleged to have been paid in excess to the petitioner is hereby quashed. If any amount is recovered from the pension of petitioner, the same be refunded back to him within a period of one month from the date of receipt of certified copy of the order passed today. The petition is allowed and disposed of. There shall be no order as to costs.
(K.K. TRIVEDI) Judge b 8 9 HIGH COURT OF MADHYA PRADESH :
JABALPUR.Writ Petition No. 26314/2003 O.A. No. 1237/2001
Mahavir Prasad Jain Vs. State of Madhya Pradesh and others.
ORDER Post it for /09/2012 (K. K. Trivedi) Judge /09/2012