Madhya Pradesh High Court
Smt. Kapsi Bai vs The State Of Madhya Pradesh on 6 October, 2017
1
W.P. No.8791/2016
W.P. No.8791/2016
06.10.2017
Shri R.K.Tiwari, learned counsel for the petitioner.
Shri Manish Awasthy, learned Govt. Advocate for the
respondent.
Heard finally with consent.
By this writ petition the petitioner has challenged the order of recovery dated 30.4.2016 by which a sum of Rs.1,54,393/- has been directed to be recovered on his retirement.
The case of the petitioner is that he was initially appointed as contingency paid employee in the year 1976 and had retired on 30.4.2016 on reaching the age of superannuation. According to the petitioner, the benefit of the pay scale were granted to the petitioner from time to time during the tenure of his service but, at the time of his retirement the respondents have passed the impugned order seeking recovery of the amount on the ground that the error was committed in the pay fixation of the petitioner.
The respondents have filed their reply taking the stand that the impugned order has rightly been passed and that the petitioner had given the undertaking and also executed a 2 W.P. No.8791/2016 bond and in terms of Rule 65 of the M.P.Civil Services (Pension) Rules,1976 the respondents are entitled to recover the said amount.
Learned counsel appearing for the petitioner submits that the petitioner has not been heard before passing the impugned order and that the undertaking and the indemnity bond which is relied upon by the counsel for the respondents in the reply, is not applicable in the present case.
As against this, learned counsel for the respondent has submitted that the respondents are entitled to recover the amount in lieu of the undertaking, indemnity bond and Rule 65 of the Pension Rules as also judgment of the Supreme Court in the matter of High Court Of Punjab & Haryana Vs. Jagdev Singh reported in 2016 (14) SCC 267.
Having heard learned counsel for the parties and on perusal of the record, it is noticed that undisputedly the petitioner had retired on 30.4.2016 and the impugned order has been passed at the time of his retirement. No opportunity of hearing has been given to the petitioner before passing the impugned order.
That apart, it is also noticed that the supreme court in the 3 W.P. No.8791/2016 matter of State of Punjab vs Rafiq Masih (White Washer) reported in 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.
(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." 4 W.P. No.8791/2016 The case of the petitioner is squarely covered by Clause 12
(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.
So far as the issue of undertaking is concerned, the alleged undertaking Annexure R-2 was taken by the respondents on 30.3.2009 whereas the impugned recovery is for the period with effect from 1.12.1998 and no such undertaking was taken before extending the benefit of the pay scale. Similarly the indemnity bond Annexure R-3 was taken on 29.4.2016 that is at the time of retirement of the petitioner and indemnity bond also does not relate to the period of which the recovery has been effected,therefore, on the basis of the said undertaking and indemnity bond, the respondents cannot take the plea that the recovery is justified. The reliance placed by the respondents in the matter of High Court of Punjab & Haryana & Ors Vs. Jagdev Singh (2016) 14 SCC 267 is misplaced in the facts of the present case and the same has been distinguished by the co-ordinate Bench while considering similar controversy in the matter of Ku. Mridula Saxena Vs. State of MP & Ors passed in WP No.7497/2012 by order dated 11/5/2017. In Km. Mridula 5 W.P. No.8791/2016 (supra), it has been held as under :-
"8. Bearing in mind the aforementioned law laid down by the Hon'ble Supreme Court in the context of aforementioned relevant considerations, if facts of the case in hand are examined, it is found that for the benefits of V Pay Commissioner w.e.f. 01/01/1996 and VI pay commission w.e.f 01/01/2006, the recovery has been initiated in the month of September, 2012, purportedly, on the strength of audit objection in the year 2010, therefore, no recovery after a gap of more than 25 years could be initiated on the strength of undertakings given by the petitioner as contained in Annexure R/1, on the premise that revision of pay under V pay commission has been implemented in the year 1998 and that of VI pay commission in the year 2009. Further, looking to the law laid down by the Hon'ble Supreme Court in the aforesaid case that no recovery from the employees belonging to Class III and Class IV employees can be made due to wrong fixation of pay, this Court is of the view that the aforesaid impugned recovery cannot be sustained for more than one reasons; (a) there is no explanation forthcoming in the counter-affidavit filed by the respondents about the undue delay caused in effecting recovery in the month of September 2012, in relation to the pay revisions of the years 1996 and 2006, except the alleged audit objection of the year 2010 in the service book of the petitioner (Annexure P/1), however, no prior notice or opportunity of hearing was afforded to the petitioner; (b) admittedly, it is not the case of respondents that the petitioner has misrepresented or suppressed relevant information or played fraud in furtherance of object of securing revised pay scales; and (c) it is also not the case of the respondents that the petitioner in any manner whatsoever was associated in the act of fixation of pay scales.6 W.P. No.8791/2016
Under such circumstances, it will be unfair, unreasonable and iniquitous to subject the petitioner for the impugned recovery, merely on the strength of alleged undertakings given by the petitioner at the time of extension of the benefit of revision of pay scales as contained in Annexure R/1.
9. The subsequent judgment of the Hon'ble Supreme Court in the case of Jagdev Singh (supra) in the opinion of this court is distinguishable and not found to be applicable to the facts of the case in hand. It was a case of a judicial officer having been extended the benefit of revised pay scale with an undertaking given simultaneously, and in the light thereof, he has been held to be bound by the undertaking, therefore, his case is not found to be covered under clause (ii) of Para 18 of the judgment of Hon'ble Supreme Court in the case of Rafiq Masih & Ors (supra). Hence, the respondents cannot derive any advantage of the aforesaid later judgment of the Hon'ble Supreme Court, i.e. Jagdev Singh (supra). The petitioner herein is a Class III employee found to be covered under clause (i) of para 18 in the case of Rafiq Masih & Ors (supra) which provides that no recovery shall be made from class III and Class IV employees as quoted above. Consequently, the recovery so ordered against the petitioner is found to be not sustainable. The impugned recovery (Annexure P/2) is set aside, pursuant to which, if any amount is recovered from the petitioner, the same shall be refunded to the petitioner within three weeks from the date of production of certified copy order passed by this Court. However, the respondents are set at liberty to correct the revision in pay scale of the petitioner, prospectively as the mistake committed earlier in point of time cannot be permitted to be perpetuated in all times to come; meaning thereby, the pay fixation of the petitioner may be done, in accordance with entitlement under intimation to the 7 W.P. No.8791/2016 petitioner."
The Division Bench of this Court in WA No.649/2016 in the matter of State of MP and others Vs. Akhilesh Kumar Pandey vide judgment dated 15/11/2016 considering the similar issue in a case where the indemnity bond relied upon by the State was not given by the employee at the time of pay fixation or prior to the retirement has noted that the indemnity bond was filled up in a routine manner from every retiring employee as a precaution for settlement of his pensionary claim. Hence, such an indemnity bond is not an undertaking as contemplated by the supreme court in the case of Jagdev Singh (supra).
The division bench of High Court of Rajasthan at Jodhpur in D.B.Civil Special Appeal (W) No.349/2014 in the matter of Mohammed Yusuf Vs. Maharana Pratap Agriculture & Technology and another vide order dated 24/11/2016 considering the similar controversy has held as under:-
"In the case in hand it is not disputed that the fixation impugned were made atleast 10 years earlier ie. From the date the respondent University pass an order to effect recovery. It is also the position admitted that the appellants prior to their retirement were in employment of the University on the post of Technician/Junior Mechanic, the posts is Group-C cadre and the appellants stood retired from service much back in the year 2002. So far as the issue with 8 W.P. No.8791/2016 regard to undertaking given by them is concerned, that cannot be equated with the undertaking given by the Officer whose case was dealt with by the Hon'ble Apex Court in the State of Punjab & Haryana & Ors (supra). In the case aforesaid, the person concerned was a civil judge (Junior Division) and further the undertaking given by him was in quite specific terms that any payment found to have been made in excess would be liable to be adjusted and further that fixation of the refund made was to be used for adjustment of excess payment, if any given.
In the instant matter, the undertaking said to be given is in a proforma that simply mentions for refund of over payments, if any made, on account of incorrect fixation. The undertaking is a part of proforma and it is well known that the persons belonging to lower posts put signatures on such undertaking without application of mind.
In these circumstances, we are of the
considered opinion that cases of the present
appellants are required to be dealt with in accordance with law laid down by the Apex Court in the case of Refiq Masih (supra).
The appeals are accordingly allowed. The judgment impugned dated 24.2.2004 passed by the learned Single Bench is set aside. The writ petitions preferred by the petitioners are allowed to the extent that the respondent University shall not effect any recovery from pay/pensionary benefits/post retiral benefits or otherwise from them on account of the amount said to be paid in excess while awarding selection grades or making pay fixation." Having regard to the aforesaid, I am of the opinion that the plea in defence taken by the State on the basis of the undertaking and indemnity bond is without any merit.
9W.P. No.8791/2016
So far as the reliance of Rule 65 of the Pension Rule is concerned, this court in the matter of Dr. Ashok Kumar Parashar Vs. The State of MP passed in WP No.16633/2016 vide order dated 23rd June, 2017 has held that Rule 65 of the Pension Rules is not applicable to the retired government servant.
Having regard to the aforesaid factual and legal position, in my considered opinion the impugned recovery cannot be sustained and is hereby set aside. However, 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.
The writ petition is accordingly disposed of. C.C. as per rules.
(Prakash Shrivastava)
Judge
das
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Date: 2017.10.07 13:22:36 +05'30'