Madhya Pradesh High Court
Smt. Vimla vs Public Health And Family Welfare ... on 20 April, 2016
1
W.P. No.7483/2015
20.4.2016
Shri V. Patidar, learned counsel for the petitioner.
Shri R. Dave, learned counsel for the State.
Heard finally with consent.
This writ petition has been filed by the petitioner
challenging the recovery of sum of Rs. 3,60,263/-.
The case of petitioner is that she was working as Staff
nurse and had retired on 30/4/15 on reaching the age of
superannuation and after her retirement, the impugned
recovery has been directed.
A reply has been filed by respondents stating therein that
the petitioner was wrongly given the pay scale of Rs. 9300- 34,800/- Grade pay Rs. 4200/- for which she was not entitled, therefore, the impugned recovery has been directed.
Learned counsel appearing for the 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 her 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Counsel for the respondents submits that since the 2 benefit was wrongly extended, therefore, it has been withdrawn.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. Having heard the learned counsel for parties and on the perusal of the record, it is found that no opportunity of hearing was given to the petitioner before passing the impugned order. It has further been found that though the plea of misrepresentation or fraud on the part of the petitioner is not sustainable in view of the judgment of the Supreme Court in the matter of Chandi prasad Uniyal (supra), but it is a case of great hardship since the recovery is sought to be made at the fag end of service of the petitioner. The division bench of this court by the judgment dated 9 th 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 Supreme 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 3 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 petitioner 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 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. This is also a case of great hardship when the amount is sought to be recovered at the fag end of service after the retirement of the petitioner.
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 and in the said judgment the retired employees are covered by the said category.
Keeping in view the fact that the petitioner had retired on 30.4.2015 and vide order dated 14.5.2015, the respondents have passed the impugned order of recovery, it is found that it 4 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 of sum of Rs. 3,60,263/- is hereby set aside. However, the pay fixation is maintained. The respondents are directed to refund the amount, if any, recovered in pursuance to the impugned order within a period of 90 days from the date of receipt of certified copy of this order.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ