Madhya Pradesh High Court
Smt. Manjula Joshi vs Principal Secretary State Of M.P. And 2 ... on 21 June, 2016
-1-
WP No.3142/2013
21-06-2016
Parties through their counsel.
The petitioner before this court who is a retired Government
has filed this present petition being aggrieved by the recovery
order dated 21-02-2008 by which the respondents have
deducted a sum of Rs. 37230/- from her gratuity.
The petitioner was appointed as Upper Division Teacher on 04- 12-1971 and promoted to the post of Lecturer on 27-05-1885. She was further promoted as Principal High School dated 26-08-2008 and was superannuated on 31-10-2008. It is true that at the time of retirement on 08-10-2008 letter was obtained from the petitioner that in case recovery if any arises, she will pay the amount as per the recovery order passed by the State Government.
Respondents have filed a reply in the matter and they have stated that on account of an undertaking given by the petitioner on 08-10-2008 they have rightly recovered the amount from the petitioner's gratuity. The petitioner is a retired employee and after her retirement recovery has been ordered on the ground that the petitioner has received emoluments more than her entitlement because of erroneous pay fixation. It has been stated by the respondents that petitioner was granted the benefit of pay fixation under the Fundamental Rule FR-22-D and on account of erroneous pay fixation she has received Rs. 37230/- excess to her entitlement and therefore recovery is justified in light of the judgment delivered in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others reported in (2012) 8 SCC 417.
This court has carefully gone through the writ petition as well as reply filed by the respondents and it is an admitted fact -2- that the petitioner was not at fault in the mater of erroneous pay fixation and she has never misrepresented the facts, at any point of time, before the Employer, in the matter of pay fixation.
The Division Bench of this court has recently in the case of State of Madhya Pradesh and others Vs. Om Prakash decided on 09-11-2012 in paragraphs- 4 to 10, held as under :-
"04. On going through the application, we find that the delay in filing the present appeal has been satisfactorily explained. The writ petitioner was initially appointed on the post of Sub Auditor in the Cooperative Department of the State Government. He was promoted on the post of Cooperative Inspector on 12.04.1985. He was extended the benefit of 1st Kramonnati in terms of the Circular issued by the State Government dated 19.04.1999. Thereafter he was promoted to the post of Senior Cooperative Inspector on 14.07.2003. On reaching the age of superannuation on 30.06.2010 he was retired. While making payment for retiral benefits, the appellants herein refixed his pay and cancelled the benefit of time scale which was granted to him vide order dated 25.06.2009 and ordered for recovery of excess payment made to him to the tune of Rs.1,06,949/. Feeling aggrieved, the petitioner filed the aforesaid writ petition No.3051/2011 (S).
05. The learned Single Judge after considering the submissions made by learned counsel for the parties and noticing the fact that the writ petitioner was not at fault in pay fixation nor he misrepresented for getting the higher pay fixation, allowed the writ petition placing reliance on the decision in the case of Shyambabu Verma vs. Union of India 1994 (2) SCC 521 and Sahibram vs. State of Haryana 1994 (2) SCC 52.
06. It has been contended by learned Panel Lawyer for the appellant that in view of the law laid down by the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others (2012) 8 SCC 417, the order passed by the learned Single Judge deserves to be set aside.
07. 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) 3SCC 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 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.
08. 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.-3-
09. In the circumstances, we are of the view that no case for interference in the order passed by the learned Single Judge is made out.
10. As a result, the appeal fails and is hereby dismissed."
Therefore, in view of the position settled by the Division Bench in the above judgment, the recovery ordered by the respondents dated 21-10-2008 is hereby quashed. The impugned order dated 21-10-208 only to the extent the recovery is concerned is hereby quashed. However, the pay fixation of the petitioner is upheld. The petitioner shall be entitled for pensionary dues, as per the pay fixation done by the respondents. The amount recovered by the respondents be refunded back to the petitioner, within a period of ninety days, from the date of receipt of certified copy of this order.
With the aforesaid petitions stands allowed.
No order as to costs.
Certified copy as per rules.
(S. C. SHARMA) JUDGE RP