Madhya Pradesh High Court
The State Of Madhya Pradesh vs Chandrashwar Prasad Singh on 15 December, 2017
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W.A.No.1232/2017
Jabalpur, Dated : 15.12.2017
Shri Sanjay Dwivedi, Deputy Advocate General for the
appellants/State.
I.A.No.17698/2017
Present is an application for condonation of delay of 28 days
in filing of the appeal.
For the reasons stated in the application, we are satisfied that
sufficient ground is made out to condone the delay. Consequently,
the application is allowed and the delay in filing the appeal is
condoned.
W.A.No.1232/2017
The challenge in the present appeal is to an order passed by
the learned Single Bench on 16.08.2017 whereby recovery of
Rs.87,354/- on account of excess payment in the matter of pay-
fixation was set aside relying upon an order passed by the Supreme
Court in the case reported as (2015) 4 SCC 334 (State of Punjab v.
Rafiq Masih).
Learned counsel for the appellants relies upon a later
judgment of the Supreme Court reported as (2016) 14 SCC 267
(High Court of Punjab and Haryana and others vs. Jagdev
Singh) to contend that as the writ petitioner has given an
undertaking to the effect that the pay-fixation is provisional and that
if after final fixation, if any recovery is to be effected, the same can
be effected from the benefits payable to the writ petitioner and also
from his legal heirs, if the situation so arises, therefore, the order
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passed by the learned Single Judge is not sustainable and that the
State has a right to recover the amount of excess payment made
earlier.
We find that the said judgment relied upon by learned counsel
for the State has no applicability in the facts of the present case as
the undertaking itself is unconscionable writing obtained by the
State. The employee has no option but to submit undertaking to
avail the benefit of pay-fixation. In a judgment of the Supreme
Court reported as (1986) 3 SCC 136 (Central Inland Water
Transport Corporation Limited and Another v. Brojo Nath
Ganguly and Another), a condition in the appointment letter that
the Corporation could terminate the services of the employees
without prior notice if it was satisfied that the employee was unfit
medically or was guilty of any subordination in respect of other
misconduct, was found to be illegal. The Supreme Court held as
under:-
"68. We now turn to the second question which falls for
determination in these Appeals, namely, whether an
unconscionable term in a contract of employment entered into
with the Corporation, which is "the State" within the meaning
of the expression in Article 12, is void as being violative of
Article 14. What is challenged under this head is clause (i) of
Rule 9 of the said Rules. This challenge levelled by the
Respondent in each of these two Appeals succeeded in the
High Court.
xxx xxx
78. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair 3 advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.
xxx xxx
93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay [(1974) 1 WLR 1308], however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others v. Prahlad Rai and others, [1960] 1 S.C.R. 861 reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873):
"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was 4 achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail."
The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void."
In view of the aforesaid judgment, we find that since the employee has no option but to give undertaking so as to avail the benefit of pay-fixation, it cannot be said to be voluntary act thus, such undertaking cannot be made basis for sustaining the recovery of Rs.87,354/-.
In view of the said fact, we do not find any error in the order passed by the learned Single Bench warranting interference in the present appeal. The same is dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
shukla
Digitally signed by
SUDESH KUMAR
SHUKLA
Date: 2017.12.18
13:21:47 +05'30'