Madhya Pradesh High Court
Moosa Khan vs The State Of Madhya Pradesh on 5 August, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.13174/2018
Moosa Khan Vs. State of M.P. and others
Through Video Conferencing
Gwalior, Dated:5/08/2021
Shri Gaurav Mishra, Advocate for petitioner.
Shri Deepak Khot, Government Advocate for State.
Shri Pavan Kumar Vijayvargiya, Advocate for respondent no.2.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
"(1) That, ANNEXURE P-1 may kindly be set aside and quash the recovery and the respondents may kindly be directed to refund the amount recovered along with the 12% interest. (2) That, the re-fixation of pension done by the respondents after recovery of the access amount may also kindly be quashed.
(3) Any other suitable further orders may kindly be passed in the interest of justice. Cost may also kindly be awarded."
It is submitted by the counsel for the petitioner that by the impugned order dated 10/2/2016, it has been directed that the excess amount of Rs.10,813/- paid to the petitioner after refixation of his pension be recovered from the petitioner. It is submitted that so far as refixation of pension is concerned, although he had also challenged the same, but he would not like to press the same and he wants to confine his prayer only to the extent of recovery. It is submitted that refixation of pension was done without any misrepresentation on the part of the petitioner and the petitioner is a Class-III employee and in the light of the judgment passed by the Supreme Court in the case of 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.13174/2018 Moosa Khan Vs. State of M.P. and others State of Punjab Vs. Rafiq Masih reported in 2015 (4) SCC 334, the excess payment made to the petitioner due to incorrect fixation of pension without there being any misrepresentation on the part of the petitioner cannot be recovered. It is further submitted that there is no undertaking by the petitioner also for refund of money in case if any excess payment is made.
Per contra, the petition is vehemently opposed by the counsel for the State. However, it is fairly conceded that the pension was wrongly refixed without there being any misrepresentation on the part of the petitioner. It is fairly conceded that no undertaking was ever taken from the petitioner for refund of money in case if any excess payment is made.
Heard learned counsel for the parties.
The Supreme Court in the case of Rafiq Masih (supra) has held as under:-
"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 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).
3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.13174/2018 Moosa Khan Vs. State of M.P. and others
(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."
In the present case also, it is not the case of the respondents that any undertaking was given by the petitioner for refund of the amount, if any excess payment is made. In the light of the judgment passed by the Supreme Court in the case of Rafiq Masih (supra), this Court is of the considered opinion that since the excess payment was made without any misrepresentation on the part of the petitioner, therefore, the respondents have wrongly recovered an amount of Rs.10,813/-, which was deposited by the petitioner on 7/6/2016. Accordingly, the demand letter dated 10/2/2016 is hereby quashed. The respondents are directed to refund the amount of Rs.10,813/- to the petitioner within a period of two months from today, failing which the said amount shall carry interest at the rate of 6% per 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.13174/2018 Moosa Khan Vs. State of M.P. and others annum till the payment is made.
With aforesaid directions, the petition is finally disposed of.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.08.06 14:42:07 +05'30'