Madhya Pradesh High Court
Ram Laxman Prajapati vs The State Of Madhya Pradesh Thr on 3 November, 2017
W.P. No.2877/2016
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
W.P. No.2877/2016
Ram Laxman Prajapati
Vs.
State of M.P. & Others
Coram:
Hon. Shri Justice S.A.Dharmadhikari
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Shri Nirmal Sharma, Advocate for the
petitioner.
Shri Abhishek Mishra, G.A. for the
respondents-State.
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ORDER
3/11/2017 In this petition, under Article 226 of the Constitution of India, petitioner has not challenged any specific order, but seeks a direction to re-fix his pay in the pay-scale of Rs.515- 800 from the initial date of appointment, with further direction to the respondents to refund the amount of Rs.1,41,000/- recovered from him on account of excess amount allegedly paid to him along with interest.
2. Petitioner was initially appointed on the post of Assistant Revenue Inspector in the year 1979 in the payscale of Rs.155-252. Thereafter, in the year 1981, the paysale was revised and, accordingly, pay of the petitioner was fixed in the payscale of Rs.515-800. Petitioner continued to discharge his duties, but in the year 1985, he was terminated without W.P. No.2877/2016 (2) assigning any reasons. The termination order was challenged by the petitioner before State Administrative Tribunal and the dispute went up to the Apex Court. The Apex Court allowed the SLP and directed the State to re-instate the services of the petitioner by way of absorption on the post of Tracer/Chainman. Accordingly, petitioner was absorbed and re-engaged as Tracer in the pay-scale of Rs.515-800. Subsequently, the pay-scale of Rs.515-800 was revised to Rs.870-1420. Thereafter, again the same was revised from time to time. Petitioner was promoted to the post of Revenue Inspector in the year 2010 and superannuated on 30/6/14. At the time of superannuation, retiral dues of the petitioner were finalized and while finalizing the same, respondents re-fixed the pay of the petitioner in the pay-scale of Rs.485-770 without any reason and on the basis of such improper fixation, initiated recovery on the ground that excess payment had been made to the petitioner.
3. The contention of learned counsel for the petitioner is that the aforesaid re-fixation is bad in law since last 37 years respondents had not pointed out any anomaly in the pay fixation of the petitioner. After re-engagement on the post of Tracer, pay of the petitioner was fixed in the pay-scale of Rs.515-800, which as indicated above, was revised from time to time and thereafter at the time of retirement, his pay has been erroneously fixed in the payscale of Rs.485-770. The respondents, at the time of retirement of the petitioner have also recovered a sum of Rs.1,41,000/- from his retiral dues on account of such erroneous pay fixation made by them. It is submitted that indisputably at the time of pay fixation from time to time, petitioner had not given any undertaking with regard to recovery of excess payment. Petitioner is not at W.P. No.2877/2016 (3) fault. In any case, petitioner could not have been fixed in the payscale of Rs.485-770 as pre-revised payscale of Tracer was Rs.515-800. He further submitted that apart from the aforesaid illegality, the petitioner has not been granted benefit of time bound payscale after completion of 10/20/30 years of service even though he has put in 37 years of service. Similarly situated employees have already been granted the said benefit. Such inaction on the part of respondents is violative of Article 14 of the Constitution of India.
4. On the other hand, State has submitted counter- affidavit to contend that since there was no need to continue the petitioner on the post of Assistant Revenue Inspector, vide order dated 31/5/1988, therefore, the post of Assistant Revenue Inspector was abolished. The said order was assailed up to the Apex Court and on the directions of the Apex Court, petitioner was re-engaged on the post of Chainman and thereafter was posted on the post of Tracer in the payscale of Rs.870-1420. It is submitted that since excess payment had been made to the petitioner, recovery has been initiated against him. In view of the aforesaid factual situation, it is submitted that finalization and re-fixation of the petitioner at the time of retirement was proper and therefore no relief can be granted as sought for.
5. Indisputably, petitioner is a pensioner and is a retired employee. The recovery has been effected after retirement without affording any opportunity of hearing to him. This Court in the case of Rajaram Vs. Ministry of Homes (Police) reported in 2016(III) MPWN 124 in paragraphs No.6 to 10 has held as under:-
W.P. No.2877/2016 (4)"6. 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 after the retirement of the petitioner. The division bench of this court by the judgment dated 9th 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 52wherein 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".
W.P. No.2877/2016 (5)7. 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.
8. 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.
9. Keeping in view the fact that the petitioner had retired on 31/5/16 and thereafter the respondents have passed the impugned order of recovery, it is found that it 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.
10. Considering the aforesaid, the writ petition is allowed and the impugned recovery for a sum of Rs.2,78,171/- 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 three months from the date of receipt of certified copy of this order."
6. In light of the aforesaid judgment and also keeping in view the judgment delivered by the Apex Court in the case of State of Punjab Vs. Rafiq Masih reported in (2015) 4 SCC
334), it is held that the recovery is bound to cause undue hardship to the retired employee. The petitioner was never responsible in the matter of pay-fixation nor has given any consent whatsoever of any kind in the matter while in service.
7. Resultantly, the order (Annexure P/9) dated 30/1/16 so W.P. No.2877/2016 (6) far as it relates to recovery from the petitioner is hereby quashed and the amount of Rs.1,41,707/- recovered from the petitioner is directed to be refunded to him within a period of 90 days from the date of receipt of certified copy of this order. In case the aforesaid amount is not refunded to the petitioner within 90 days, petitioner shall be entitled to interest at the rate of 8% per annum from the date of superannuation till the date such amount is refunded to him. So far as the relief of time bound scales/financial up-gradation is concerned, petitioner is set at liberty to file a representation in this regard before the competent Authority and the Authority concerned shall be well advised to decide the same by a self contained speaking order, in accordance with law, as expeditiously as possible.
With the aforesaid, the petition stands disposed of.
(S.A.Dharmadhikari) Judge (and)