Madhya Pradesh High Court
Amar Lal Jatav (Sc) vs The State Of Madhya Pradesh on 6 September, 2017
WP-15800-2015
(AMAR LAL JATAV (SC) Vs THE STATE OF MADHYA PRADESH)
06-09-2017
Smt. Amrit Kaur Ruprah, learned counsel for the
petitioner.
Shri Sudeep Deb, learned Govt. Advocate for the
respondents/State.
The petitioner has filed the present petition challenging the order dated 07.09.2015 passed by the respondents thereby recovering an amount of Rs. 3,34,354/- from retiral dues of the petitioner.
The petitioner was initially appointed on the post of Gram Sewak on 16.06.1977. He was, thereafter, promoted to the post of Senior Agricultural Development Officer. The petitioner retired on 30.06.2015 on attaining the age of superannuation. Before retirement of the petitioner, the respondents have passed an order dated 07.09.2015 thereby recovering an amount of Rs. 3,34,354/- from the gratuity of the petitioner on the ground of wrong fixation of the pay of the petitioner. Being aggrieved by that order, the petitioner has filed the present petition.
Learned counsel appearing on behalf the petitioner relied on the judgement passed by the Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334. She submits that as per this judgement, recovery from retired and Class-III employee is impermissible in law. She further submits that amount which the respondents are sought to be recovered is of 29 years. She further submits that there is no misrepresentation on the part of the petitioner, therefore, such amount could not be recovered from the retiral dues of the petitioner.
The respondents have field their reply and in the said reply, the respondents have submitted that the authority concerned have found that the payment of Rs. 3,34,354/- was paid in excess to the petitioner and this mistake has come to their knowledge at the time of collecting the dues from the service book of the petitioner. It has further been submitted that the petitioner has also furnished an undertaking that if excess amount is paid to him then the same will be recovered from the retiral dues of the petitioner, therefore, the impugned order has rightly been passed against the petitioner. I have heard learned counsel for the parties and perused the record. From perusal of the record, it reveal that the Apex Court in the case of State of Punjab and Others (supra) in para 18 has held as under:-
â18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class-III and Class-IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.â Thus, as per the said judgement, recovery from retired and Class-III employee is impermissible in law. So far as, furnishing of indemnity bond by the petitioner is concerned, as per the said indemnity bond before passing any order of recovery, opportunity hearing is required to be given to the petitioner. However, in the present case, no such notice or any opportunity of hearing is given to the petitioner before passing the impugned order of recovery.
Thus, in light of the aforesaid facts and circumstances of the case, the present writ petition is allowed. The impugned order dated 07.09.2015 passed by the respondents is hereby set aside. Respondents are directed to release the entire retiral dues to the petitioner including the pension also. The same be paid to the petitioner within a period of three months from the date of receipt of certified copy of the order. Certified copy as per rules.
(MISS VANDANA KASREKAR) JUDGE ashish