Madhya Pradesh High Court
Indrajeet Singh Chaoda vs The State Of Madhya Pradesh on 12 January, 2022
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
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HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT
JABALPUR
1. Case Number and parties 1. W.P. No.13509/2020 (Krishna Kumar Tiwari and
name others Vs. State of M.P. and others)
2. W.P. No.13560/2020 (Raghuveer Prasad Markam and
others Vs. State of M.P. and others)
3. W.P. No.13643/2020 (Rampadam Sharma and others
Vs. State of M.P. and others)
4. W.P. No.13684/2020 (Vijay Mana and others Vs. State
of M.P. and others)
5. W.P. No.13698/2020 (Anoop Singh and others vs.
State of M.P. and others)
6. W.P. No.13781/2020 (Santosh Kushwaha and others
vs. The State of M.P. and others)
7. W.P. No.13972/2020 (Jagendra Pratap Singh and
others vs. The State of M.P. and others)
8. W.P. No.14065/2020 (Umesh Tiwari and others vs.
The State of M.P. and others)
9. W.P. No.14094/2020 (Virendra Singh Kayanidhi and
others vs. The State of M.P. and others)
10. W.P. No.14192/2020 (Chain Singh Banti and others
vs. The State of M.P. and others)
11. W.P. No.14194/2020 (Ajay Choudhari and others vs.
The State of M.P. and others)
12. W.P. No.14195/2020 (Anshuman Singh and others vs.
The State of M.P. and others)
13. W.P. No.14477/2020 (Sangram Singh and others vs.
The State of M.P. and others)
14. W.P. No.14485/2020 (Ramdev Rawat and others vs.
The State of M.P. and others)
15. W.P. No.14581/2020 (Ramesh Dhurve and others vs.
The State of M.P. and others)
16. W.P. No.14823/2020 (Sandeep Yadav and others vs.
The State of M.P. & Ors.)
17. W.P. No.14835/2020 (Parimal Singh and others vs.
The State of M.P. and others)
18. W.P. No.14841/2020 (Vinod Tumram and others vs.
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The State of M.P. and others)
19. W.P. No.14974/2020 (Raghuveer Singh Gurjar and
others vs. The State of M.P. and others)
20. W.P. No.15102/2020 (Akhilesh Yadav and others vs.
The State of M.P. and others)
21. W.P. No.15104/2020 (Santosh Barkare and others vs.
The State of M.P. & Ors.)
22. W.P. No.15146/2020 (Bhuwneshwar Tiwari and
others vs. The State of M.P. and others)
23. W.P. No.15150/2020 (Aman Babu and others vs. The
State of M.P. and others)
24. W.P. No.15315/2020 (Ranjeet Gupta and others vs.
The State of M.P. and others)
25. W.P. No.15322/2020 (Sahesh Chandra and others vs.
The State of M.P. and others)
26. W.P. No.15324/2020 (Dev Kunwar Marpe and others
vs. The State of M.P. and others)
27. W.P. No.15341/2020 (Ravi Singh Tomar and others
vs. The State of M.P. and others)
28. W.P. No.15342/2020 (Shivendra Mishra and others
vs. The State of M.P. and others)
29. W.P. No.15374/2020 (Rajesh Kumar Sen and others
vs. The State of M.P. and others)
30. W.P. No.15449/2020 (Shakti Singh Thakur and others
vs. The State of M.P. and others)
31. W.P. No.15512/2020 (Akhilesh Shakya and others vs.
The State of M.P. and others)
32. W.P. No.15528/2020 (Vinod Rawat and others vs.
The State of M.P. and others)
33. W.P. No.15799/2020 (Vikesh Singh Tomar and others
vs. The State of M.P. and others)
34. W.P. No.15873/2020 (Mandeep Singh and others vs.
The State of M.P. and others)
35. W.P. No.15875/2020 (Jitendra Kumar and others vs.
The State of M.P. and others)
36. W.P. No.15885/2020 (Vikram Uike and others vs.
The State of M.P. and others)
37. W.P. No.15922/2020 (Hem Kumar Jabriya and others
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vs. The State of M.P. and others)
38. W.P. No.16404/2020 (Shital Sahu and others vs. The
State of M.P. and others)
39. W.P. No.16587/2020 (Surendra Pal Singh and others
vs. The State of M.P. and others)
40. W.P. No.16589/2020 (Pachkodi Parteti and others vs.
The State of M.P. and others)
41. W.P. No.20026/2020 (Nikesh Kumar Mandavi and
others vs. The State of M.P. and others)
42. W.P. No.08576/2021 (Indrajeet Singh Chaoda vs. The
State of M.P. and others)
2. Date of Order 05/01/2022
3. Bench Constituted of Hon. Shri Justice S.A.Dharmadhikari
4. Order passed by Hon. Shri Justice S.A.Dharmadhikari
5. Whether approved for No
reporting
6. Name of the counsel for Shri Jai Shukla, Shri Satish Kumar Pandey and
the parties Shri Rajesh Kumar Tiwari, Advocates for the
petitioners.
Shri Prateek Jain, Panel Lawyer for the
respondent/State.
7. Law laid down & -
Significant paragraphs
number
ORDER
(12.01.2022) As the similar issue is involved in this batch of writ petitions, therefore, they are heard analogously and decided by this common order. For the sake of convenience, the facts are being taken from W.P. No.13560/2020.
2. This petition under Article 226 of the Constitution of India has been filed by the petitioners seeking the following reliefs:
"(i) To quash the impugned order dated 31.08.2020 (Annex.P-6) passed by respondent No.4 is in violation of statutory provision.
(ii) To call for the record pertaining to impugned order.4
(iii) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioners."
3. The brief facts giving rise to filing of the present petition is that the petitioners are aggrieved by the order of recovery dated 31.08.2020, Annexure P/6 passed by the Commandant, Hawk Force, Police Head Quarters Bhopal/respondent No.4, by which the amount paid as "Nexalite Operation Risk Allowance" for the period from 01.07.2017 till 31.08.2020 has been sought to be recovered on the ground that the said allowance ought to have been paid in consonance to the recommendations of the 6th pay commission whereas the same has been paid in consonance to the recommendations of the 7 th pay commission. Petitioners were appointed in various departments such as Home Guards, various battalions of the S.A.F., P.H.Q., Bhopal on deputation after following the due procedure of law and after undergoing hard training to weed out the nexalite problem. The force was called as "Hawk Force". The petitioners were required to undergo the written examination as well. The Governor under his signature issued a circular dated 18.08.2002 to eradicate and curtail the rising problem of nexalism, sanctioned the formation of "Hawk Force" in which it was also mentioned that the persons, who would form the "Hawk Force" would be entitled for the allowance known as "Nexalite Operation Risk Allowance" which was to be 70% of the salary. Thereafter, the Finance Department sanctioned the "Nexalite Operation Risk Allowance" vide letter dated 05.05.2000. The aforesaid allowance was also payable to the petitioners in the light of the M.P. Pay Revision Rules, 2017. On the basis of the aforesaid sanction, the petitioners were paid the allowance w.e.f. July, 2017 till August, 2018 on the basis of the recommendations of the 7 th pay commission. However, to the utter surprise of the petitioners, an order dated 18.09.2018 was passed creating an anomaly by which it was held that the petitioners are entitled to the aforesaid allowance as per the recommendations of the 6th pay commission and not of the 7th pay commission. The said order is contrary to the order dated 18.08.2000 and 25.04.2003 which is still in existence. The petitioners being aggrieved with the impugned order dated 31.08.2020 have knocked the doors of this Court seeking redressal of their grievance.
54. Learned counsel for the petitioners contended that the impugned order dated 31.08.2020 is in clear violation of the principles of natural justice as the same has been passed in mechanical manner and no opportunity of hearing whatsoever has been extended to the petitioner before issuing the order. The impugned order even suffers from the jurisdictional error inasmuch as the Governor had sanctioned the grant of "Nexalite Operation Risk Allowance" whereas the impugned order has been passed by an inferior authority, therefore, the same deserves to be set aside. The respondents erred in coming to the conclusion that the allowance would be payable as per the 6th pay commission recommendations but as per the sanction, the same is payable on the basis of 70% of the salary which is prevailing as on date. It was further contended that the recovery is being made more than after three years of its grant. Neither there is any misrepresentation on the part of the petitioners nor there has been any undertaking given at the time of grant of the allowance. The petitioners are Class-III employees and if this recovery order is allowed to stand, they would face great financial hardship and it would become difficult for them to pay the amount which they have already spent. Learned counsel for the petitioners further contended that the Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) 2015 4 SCC 334 had laid down 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 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."6
5. Learned counsel for the petitioners contended that the out of the aforesaid several contingencies specified in the case of Rafiq Masih (supra), the petitioners fall within category (i), and to some extent under category (iii) and (v) as laid in the aforesaid judgment. Learned counsel for the petitioners have also relied on the judgment rendered in the case of Syed Abdul Qadir and others Vs. State of Bihar and others, reported in (2009) 3 SCC 475, has held as under with regard to right of the employer to recover the excess amount paid to an employee on account of wrong fixation of pay;-
"The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recover of the amount paid in excess. (Para. 58) The excess amount that has been paid to the appellant teachers, was not misrepresentation of fraud on their part and the appellants also had no knowledge that the amount that was being paid to the them was more than what they were entitled to. The Finance Department of the respondent State has admitted that it was a bonafide mistake. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants can not be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the respondent Government. It has also been brought to the Court's notice that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, recovery of the amount that has been paid in excess to the appellant teachers is prohibited. Amount that has already been recovered has to be refunded to the employees concerned. These directions would also apply to those similarly situated teachers who have not moved the Court."
(Paras 59 to 61)
6. Per contra, the prayer made by the petitioners has vehemently been opposed by the counsel for the State. Learned counsel contended that in order to curb the menace of nexalisam, the special "Hawk Force" was constituted in the year 2000. In order to boost the morale of the members of the "Hawk Force", "Nexalite Operation Risk Allowance" that is 70% of the basic pay was approved by the respondent authorities. The recommendations of the 7th pay commission was applied to the Government servants w.e.f. 22.07.2017. The respondents by placing reliance on Clause 15 of the aforesaid letter which relates to travel allowance, house rent allowance, project allowance, scheduled area allowance, 7 non-professional allowance, deputation allowance, LTC and other facilities submitted that the said allowance was wrongly applied in the case of the petitioners and they were paid as per the 7 th pay recommendations. In the meanwhile, the Finance Officer, P.H.Q., Bhopal vide letter dated 16.08.2018 directed the Commandant, Hawk Force, Madhya Pradesh, Bhopal to ensure that the payment of the "Nexalite Operation Risk Allowance" be paid in accordance with the 6th pay commission. Thereafter, the only amount which was paid as per 7 th pay commission is sought to be recovered whereas the petitioners are continuously getting the allowance as per the recommendations of the 6 th pay commission even today. Learned counsel for the State further contended that there are divergent views of different Benches of this Court. Therefore, in order to resolve the conflict, the matter has been referred to the Larger Bench in Writ Appeal No.815/2017 for considering the following questions;-
"1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.
2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P Civil Services Pension Rules, 1976.
3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another).
4. Any other question which is raised for decision before the Larger Bench or which the Larger Bench considers arising out of the issues canvased."
and the same is pending for adjudication before the Larger Bench. Therefore, this Court should await the decision of the Larger Bench before finally deciding these petitions.
7. In response, learned counsel for the petitioners has filed the rejoinder controverting the averments made in the return and contended that none of the 8 questions referred to the Larger Bench are applicable to the facts and circumstances of the present case inasmuch as in the present case there was no undertaking given by the petitioners for the purpose of recovery of "Nexalite Operation Risk Allowance". So far as Rule 65 of the M.P. Civil Services Pension Rules, 1976 is concerned, the same is applicable to the retiring government servants. Accordingly, the case of the petitioners is fully covered with the case of Rafiq Masih (supra). The petitioners are class-III employees and have already spent the amount. For no fault on the part of the petitioners, they could not be saddled with the punishment of recovery. Accordingly, these petitions deserve to be allowed.
8. Heard learned counsel for the parties and perused the record.
9. It would be relevant to reproduce the circular dated 18.08.2000, Annexure P/1 issued in the name of Governor which is as under:
e/;izns'k 'kklu x`g iqfyl foHkkx ea=ky;
Øekad ,Q 5&7@98@ch&3@nks Hkksiky fnukad 18-08-2000 izfr] izfr egkfuns'kd e/;izns'k Hkksiky fo"k;& izns'k esa c< jgs uDlyokn dh leL;k dk fujkdj.k gsrq gkWdQkslZ dk xBuA lanHkZ& vkidk i- Ø fo- 'kk-@26@dk;Z@99@u-lsy@1481 fn- 20-09-99 jkT; 'kklu }kjk fu.kZ; fy;k x;k fd uDlykbZV fojks/kh vfHk;ku ds fy;s gkWdQklZ dk xBu fd;k tk;s rFkk bl gkdQklZ dks izkjaHk djus ds fy;s izkjfEHkd :i ls :i;s 274-93 yk[k dk vnk;xh O;; Lohd`r fd;k tk;s gkdQklZ esa dk;Z djus okys vf/kdkfj;ksa@deZpkfj;ksa dks ewy osru dk 70 izfr'kr uDly {ks= vkijs'ku fjLd vukmUl Lohd`r fd;k tk;sA d`i;k mDrkuqlkj vf/kdkjh@deZpkjh dks lqfuf'pr djus dh O;oLFkk djsaA e-iz- ds jkT;iky ds uke ls rFkk vkns'kkuqlkj gLrk ,l lh JhokLro voj lfpo e-iz- 'kklu x`g iqfyl foHkkx 9
10. Circular dated 25.04.2003 issued in the name of the Governor is also reproduced as under:
e/;izns'k 'kklu x`g iqfyl foHkkx ea=ky;
Øekad ,Q 5&7@98@ch&3@nks Hkksiky fnukad 25-04-2003 izfr] izfr egkfuns'kd e/;izns'k Hkksiky fo"k;& uDly izHkkfor {ks=ksa esa gkdQksZl esa dk;Zjr vf/kdkfj;ksa@deZpkfj;ksa dks fjLd vukmUl Lohd`r djus ckcr~~A ea=h ifj"kn vkns'k vk;Ve Øekad 14 fnukad 14 tqykbZ 2000 ds vuqlkj uDlykbZV fojks/kh vfHk;ku ds fy;s gkdQkslZ dk xBu djus ,oa mlesa dk;Z djus okys vf/kdkfj;ks deZpkfj;ksa dk ewy osru dk 70 izfr'kr uDlykbZV vkijs'ku fjLd vukmUl Lohd`r fd;s tkus dk fu.kZ; fy;k x;kA 2- vr% jkT; 'kklu ,rn~ }kjk uDlykbZV fojks/kh vfHk;ku ds fy;s xfBr gkWdQklZ esa inLFk vf/kdkfj;ksa@deZpkfj;ksa dks gkWd QkslZ ds xBu ds fnukad ls muds ewy osru dk 70 izfr'kr uDlykbZV vkijs'ku fjLd vukmUl Lohd`r djrk gSaA 3- ;g fd O;; iqfyl ctV ekax la[;k &3&2055 iqfyl&¼109½ ftyk iqfyl 449 & lkekU; & O;; & ¼ftyk LFkkiuk½ & 01 & osru HkRrs vkfn ds vUrxZr fodyuh; gksxkA 4- ;g Lohd`fr foRr foHkkx dh lgefr ls Øekad lh vkj 576 ctV 9@pkj@99@fnukad 5-5-2000 ds vuqlkj tkjh dh x;h gSA e-iz- ds jkT;iky ds uke ls rFkk vkns'kkuqlkj gLrk ¼lat; jk.kk½ voj lfpo e/;izns'k 'kklu x`g iqfyl foHkkx
11. From the aforesaid letters, it is clear that there was a proper sanction from the Governor. Neither there was any undertaking on the part of the petitioners nor they had misrepresented or played fraud with the respondents. In the light of the principles/categories laid down in the case of Rafiq Masih (supra), the case of the petitioners conclusively falls in category (i) and to some extent category (iii) and (v). Therefore, the respondents have wrongly recovered the amount from the petitioners which has been alleged to have been paid in excess to what they are entitled. Moreover, the recovery has been affected without concurrence of the Governor by an inferior authority. Therefore, impugned order dated 31.08.2020 is 10 hereby quashed and set aside.
12. Thus, the writ petitions stand allowed. The respondents are directed to refund the amount already recovered from the petitioners within a period of 3 months from the date of receipt of certified copy of the order. In case the amount is not refunded within the aforesaid period, the same shall carry 6% interest per annum till the date of payment.
13. This order shall apply mutatis mutandis to the facts and circumstances of the each case. A copy of the order be placed in the record of all the connected writ petitions. No order as to costs.
(S.A.Dharmadhikari) Judge vc VARSHA CHOURASIYA 2022.01.12 17:01:54 +05'30'