Madhya Pradesh High Court
Ganpatlal Katta vs Principal Secretary State Of M.P. And 4 ... on 13 November, 2017
1
WP No.2244/2013
13.11.2017
Shri V.K. Patvari, learned counsel for petitioner.
Shri A.Soni, learned counsel for State.
Heard finally with consent.
By this writ petition, the petitioner has challenged the
recovery of a sum of Rs. 69,290/- which has been directed
at the time of his retirement.
The case of the petitioner is that he was initially
appointed as Surveillance Worker in the year 1974 and was
promoted as Surveillance Inspector in 1980 and Lab
Technician in 1982 and thereafter was given the upgraded
pay scale and the pay was fixed. The petitioner had retired
on 30th April, 2011 and while finalising the petitioner's
pensionary dues, a sum of Rs.69,290/- has been
recovered.
The respondents have filed their reply taking the
stand that he had received two promotions, therefore, he was not entitled to the time scale of pay, hence the said benefit of time scale of pay which was granted to the petitioner has been withdrawn.
Learned counsel for petitioner submits that no opportunity of hearing has been given to the petitioner and that the recovery at this stage will cause serious hardship and that the petitioner is confining his challenge to recovery only and not pressing the challenge to pay fixation.
As against this, learned counsel for respondents submits that since the excess amount was paid to the petitioner on account of wrong grant of time scale of pay, hence it is sought to be recovered. He further submits that 2 the recovery has rightly been directed.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the said wrong grant of time pay scale was not on account of any misrepresentation or fraud at the instance of the petitioner. It is undisputed that before passing the impugned order no opportunity of hearing has been given to the petitioner. That apart, it is also noticed that the supreme court in the matter of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc 2015(1)MPHT 130(SC) considering the issue of recovery of the amount and hardship caused in consequent thereto in similar circumstances has held 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 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).
(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.3
(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 case of the petitioner is squarely covered by sub- para (I), (ii) and (iii) of the aforesaid para. Hence, in view of the judgment of the supreme court, the respondents cannot be permitted to make the recovery at this stage. The petitioner has retired from service and the recovery at this stage will cause serious hardship to the petitioner.
Having regard to the aforesaid, the writ petition is allowed. The impugned order of recovery is set aside, but pay fixation is maintained. The amount already recovered in pursuance to the impugned order be refunded to the petitioner within a period of three months from the date of receipt of certified copy of this order.
c.c as per rules.
(PRAKASH SHRIVASTAVA) Judge Digitally signed by Varghese Mathew Varghese DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Mathew 2.5.4.20=b06e85e8115fd7cc0bb34a08 88d1d430f979382d4c898692d55d8db b4d9b937e, cn=Varghese Mathew Date: 2017.11.15 13:55:22 +05'30'