Madhya Pradesh High Court
Gopal Prasad Adiwasi vs The State Of Madhya Pradesh on 16 October, 2015
WP-8650-2013
(GOPAL PRASAD ADIWASI Vs THE STATE OF MADHYA PRADESH)
16-10-2015
Shri Amit Chaturvedi, learned counsel for the petitioner.
Shri A.P. Singh, learned G.A. for the respondent/State.
Being aggrieved by the order of recovery Annexure P/1 and the action of respondent to adjust the gratuity and Departmental Provident Fund (DPF) in lieu thereof, petitioner has filed this petition seeking quashment of the said recovery and to release the adjusted amount of recovery as well as DPF.
It is not in dispute that the petitioner was a Class IV employee working in the respondent/department. As per return filed by the respondent, it is inter alia contended that the superannuation of the petitioner was due on 31.10.2008 but on account of furnishing a certificate of date of birth signed by Sarpanch, he continued upto 7.11.2011 for a period of three years even after the actual date of retirement recorded in the service book. However, the difference of the salary paid to him during such period has rightly been ordered to be recovered. Learned counsel for the petitioner has strenuously urged that even the stand taken by the State Government is accepted as correct, in that case also, if petitioner has worked after the date of retirement, he would be entitled to get the salary otherwise, it would be a Begar as enshrined in Article 23 of the Constitution of India. In addition thereto, being class IV employee, recovery in view of the judgment of Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334 is not permissible.
In view of the aforesaid, the order of recovery may be quashed and the amount of gratuity and DPF adjusted in lieu of recovery may be ordered to be released with interest.
After hearing learned counsel appearing on behalf of both the parties, I find much substance in the argument as advanced by the learned counsel for the petitioner.
It is to be observed here that if an employee has illegally worked even after attaining the age of superannuation, however, for such period, he would be entitled to get wages. In addition recovery after retirement from Class IV employee is not permissible. In this regard, para-12 of the judgment of the Supreme Court passed in Rafiq Masih (supra) is relevant, however, reproduced 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, summarize 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.'' In view of the aforesaid, recovery from the employees belonging to Class-III and Class-IV services or from the retired employees is not permissible. The case of the present petitioner falls within the aforesaid two conditions as laid down by the Apex Court. As per clause (I) and (II) of the aforesaid, being a Class IV employee after retirement, the recovery is not permissible.
In consequence thereto, allowing this petition order of recovery is quashed and it is directed that the alleged amount of salary adjusted from DPF and Gratuity be released alongwith the usual interest @ 7.5% till its realization within a period of three months from the date of communication of this order.
C.c. as per rules.
(J.K. MAHESHWARI) JUDGE