Madhya Pradesh High Court
Harish Kumar Tiwari vs The State Of Madhya Pradesh on 29 November, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
1 WP No.14874/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 29th OF NOVEMBER, 2024
WRIT PETITION No. 14874 of 2019
HARISH KUMAR TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mohan Lal Sharma - Advocate for the petitioner.
Shri Jubin Prasad - PL for the respondents /State.
ORDER
The petitioner has preferred this petition under Article 226 of
the Constitution of India seeking the following reliefs :-
“i) That, this Hon’ble court may kindly be pleased to call
for relevant record pertaining to case of the petitioner for
bare perusal of this Hon’ble court.
ii) It is, therefore, prayed that this Hon’ble Court may
kindly be pleased to quash the impugned recovery of an
amount of Rs.92,074/- as mentioned in the recovery
calculation sheet vide Annexure-P/1. If any amount on
account of proposed recovery is recovered from salary of
the petitioner may kindly be refunded to him with interest
@ 12% p.a. in the interest of justice.
iii) Any other writ, order or direction which this
Hon’ble court may deem fit and proper in the facts and
circumstances of the case including cost of the litigation
may kindly be awarded in favour of the petitioner.
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
2 WP No.14874/2019
2. At the outset, learned counsel for the petitioner submits that the
question involved in the present case has been decided by this Court in
W.P.No.7028/2018 (Mahendra Kumar Ahirwar Vs. State of M.P. & Ors.)
on 21.11.2024 and the matter is squarely covered by the order passed by
this Court. He seeks parity viz a viz the said order.
3. This Court in W.P.No.7028/2018 has passed the following
order :-
“The present petition under Article 226 of the
Constitution of India has been preferred by the petitioner
challenging the order dated 12.10.2017 (Ann.P/4) passed
by respondent no. 4, whereby recovery has been made
from the petitioner in respect of an excess payment made
to him because of wrong pay fixation and a condition has
also been imposed upon the petitioner that benefit of
second time pay scale will not be extended to the
petitioner till the recovery is affected. The petitioner by
way of amendment has challenged the subsequent order
dated 14.6.2018 passed by respondent no. 4 impugning
the calculation sheet whereby re-fixation has been done
and the petitioner’s pay scale has been revised.
2. The short facts of the case are that the petitioner was
appointed as Sub Engineer on 28.12.1994 at the pay scale
of Rs.1600-50-2300-60-2720 in the Water Resources
Department. After completion of 12 years of his service,
benefit of first time pay scale was given to the petitioner
vide order dated 28.4.2007 w.e.f. 27.3.2007 and further,
on 1.3.2007 the fixation of pay scale in higher grade was
made and his salary was fixed at Rs.13730+4200 GP.
After 5 years i.e. on 31.7.2012 an objection was raised by
the respondents that the fixation of first time pay scale
which was made on 1.3.2007 was not correct and extra
NEUTRAL CITATION NO. 2024:MPHC-JBP:633153 WP No.14874/2019
payment made to the petitioner between March, 2007 to
June, 2012 are recoverable and an order of recovery has
been issued for Rs.45,220/- and recovered the amount of
Rs.45,220/- and amended fixation has been done at the
pay scale of Rs.12840+4200 GP in place of
Rs.13870+4200 GP. Thereafter, on 12.10.2017 the
respondents issued the impugned order saying again that
amended fixation was also wrong because next increment
was given to the petitioner after four months of fixation.
It is also the case of the petitioner that by the impugned
order dated 12.10.2017 it has also been clarified that the
benefit of second time pay scale shall be given after the
recovery is made from the petitioner. It is further case of
the petitioner that the respondents by the subsequent order
dated 14.6.2018 have made a calculation sheet whereby
they have revised the pay scale of the petitioner and
further recovery of Rs.77,353/- has been shown to be
made from the petitioner, out of which, Rs.73,247/- has
already been recovered from the petitioner.
3. It is submitted by learned counsel for the petitioner that
the benefit of second time pay scale has already been
extended to him by the respondents on 28.12.2015. The
authorities have wrongly stopped the benefit of second
time pay scale and directed to recovery of the said amount
which is per se illegal. Challenge is also made on the
ground that the excess amount was not paid to the
petitioner on his misrepresentation but it is the mistake on
the part of the respondents and no opportunity of hearing
was ever granted to him. It is also contended by learned
counsel for the petitioner that looking to the facts and
circumstances of the case, the recovery made by the
respondents is otherwise illegal and cannot be made from
the petitioner as it is against the orders / judgments passed
by Hon’ble the Supreme Court as well as this Court also.
In support of his contentions, he has placed reliance upon
a judgment passed by the Supreme Court in the case of
State of Punjab Vs. Rafiq Masih, reported in (2015) 4
NEUTRAL CITATION NO. 2024:MPHC-JBP:633154 WP No.14874/2019
SCC 334, wherein it has been held that if the employee is
not at fault at any point of time, no recovery can be made
from the said employee.
4. It is next contended by counsel for the petitioner that
the case of the petitioner for extending the benefit of
second time pay scale has already been considered by the
respondents on 28.12.2015 but due to the impugned
recovery, the actual benefit is not being given to him. It is
also contended that after more than 5 years of fixation of
pay scale in higher grade, on 31.7.2012 the respondents
took objection regarding wrong fixation of the petitioner
and they again done re-fixation. Surprisingly, again after
five years the respondents have informed the petitioner by
issuing the impugned order that the amended fixation was
not properly done in earlier occasions. Benefits which
were extended to the petitioner long back i.e. in the year
2007, the same could not have been recovered in the year
2017 in view of the judgment passed by the Supreme
Court in the case of Rafiq Masih (supra).
5. Per contra, learned counsel for the respondents / State
has vehemently opposed the submissions made by learned
counsel for the petitioner and relying upon the stand taken
by the State in their return has submitted that any amount
paid in excess to the petitioner, for which, he is not
entitled, can be recovered from him and even the
government employees is duty bound to refund the excess
payment made to him as the same has been paid from
public exchequer. It is also argued that in terms of Rules
64 of the Pension Rules, the recovery can always be made
from an employee. It is also submitted that at the time of
pay fixation, an undertaking is required to be submitted
before the authorities concerned and the petitioner must
have submitted his undertaking at the relevant time,
therefore, the recovery is well justified. It is also
submitted that the question regarding recovery and
undertaking being given at the time of fixation has been
NEUTRAL CITATION NO. 2024:MPHC-JBP:633155 WP No.14874/2019
referred to the Larger Bench in the case of Jagdish Prasad
Dubey and submitted that no fault or illegality can be seen
with the action of the answering respondents and,
therefore, prayed for dismissal of the petition.
6. Heard the counsel for the parties and perused the record
as well as the judgments on which reliance has been
placed by the rival parties.
7. The Full Bench of this Court in the case of State of
M.P. and others Vs. Jagdish Prasad Dubey (WA
No.815/2017) decided on 6.3.2024 has settled the issue
and relevant portion is as under :-
“35.(a) Question No.1 is answered by holding
that recovery can be effected from the
pensionary benefits or from the salary based on
the undertaking or the indemnity bond given by
the employee before the grant of benefit of pay
refixation. The question of hardship of a
Government servant has to be taken note of in
pursuance to the judgment passed by the Larger
Bench of the Hon’ble Supreme Court in the case
of Syed Abdul Qadir (supra). The time period as
fixed in the case of Rafiq Masih (supra)
reported in (2015) 4 SCC 334 requires to be
followed. Conversely an undertaking given at
the stage of payment of retiral dues with
reference to the refixation of pay or increments
done decades ago cannot be enforced.
(b) Question No.2 is answered by holding that
recovery can be made towards the excess
payment made in terms of Rules 65 and 66 of
the Rules of 1976 provided that the entire
procedures as contemplated in Chapter VIII of
the Rules of 1976 are followed by the employer.
However, no recovery can be made in
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
6 WP No.14874/2019
pursuance to Rule 65 of the Rules of 1976
towards revision of pay which has been
extended to a Government servant much earlier.
In such cases, recovery can be made in terms of
the answer to Question No.1.
(c) Question No.3 is answered by holding that
the undertaking given by the employee at the
time of grant of financial benefits on account of
refixation of pay is a forced undertaking and is
therefore not enforceable in the light of the
judgment of the Hon’ble Supreme Court in the
case of Central Inland Water Transport
Corporation Limited (supra) unless the
undertaking is given voluntarily.”
8. The Supreme Court in the case of Rafiq Masih (White
Washer) (supra) has held as under:-
“18. 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 the employees belonging to
Class-III and Class-IV service (or Group C and
Group D service).
(ii) Recovery from the retired employees, or
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
NEUTRAL CITATION NO. 2024:MPHC-JBP:633157 WP No.14874/2019
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.
9. In the light of the judgment of Hon’ble Apex Court in
the matte of Rafiq Masih (supra) as well as this Court in
the case of Jagdish Prasad Dubey (supra) and
considering the controversy involved in the present case,
this Court is of the opinion that since there was no
misrepresentation on the part of the petitioner rather it
appears that the respondents / department was negligent in
fixing the pay scale over and again, and the excess
amount deducted was not justified and could not have
been deducted that too after 10 years from the date of
fixation in question. Further, granting benefit of pay scale
to the petitioner in the year 2007 was right or wrong, is
not the subject matter of this petition for the reason that
the petitioner is challenging the recovery part saying that
the amount paid in excess cannot be recovered from him
for the reason that it was not the mistake on his part but it
was the mistake on the part of the respondents authorities
making erroneous fixation. It is also seen from the records
that before making recovery of excess amount paid to the
petitioner, he should have been given an opportunity of
hearing because order withdrawing the benefit already
granted to the petitioner carries civil consequences and it
is a settled principle of law that if any order passed by the
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
8 WP No.14874/2019
authority carries civil consequences, the same can be
passed only after following the principles of natural
justice. Admittedly, in the present case, that has not been
done and, therefore, the impugned recovery cannot be
given a seal of approval and pursuant thereto, no recovery
can be made from the petitioner.
10. Moreover, the factum of undertaking given by the
employee at the time of re-fixation coupled with the fact
that whether any 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, or not,
was considered by the Full Bench of this Court. The case
of the petitioner is squarely covered by the judgment
passed by the Supreme court in the case of Rafiq Masih
(supra) as well as by Full Bench of this Court in the case
of Jagdish Prasad Dubey (supra).
11. Thus, in the light of law laid down by the
Supreme court in the case of Rafiq Masih (supra) as well
as Full Bench of this Court in the case of Jagdish Prasad
Dubey (supra), impugned order dated 12.10.2017
(Ann.P/4) and subsequent order dated 14.6.2018 are
hereby quashed. It is directed that the amount, if any,
recovered from the petitioner shall be refunded to him
along with interest @ 6% within a period of two months
from the date of receipt of certified copy of this order,
failing which, the delayed amount shall carry interest
@10% till its actual payment is made to the petitioner.
12. With the aforesaid, the petition stands
allowed and disposed of.”
4. In view of the aforesaid, this petition is also allowed in the
manner as directed by this Court in W.P.No.7028/2018 (Mahendra Kumar
Ahirwar Vs. State of M.P. & Ors.) on 21.11.2024 and that order shall apply
mutatis mutandis in the present case also.
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
9 WP No.14874/2019
5. Accordingly, the impugned recovery (Ann.P/1) is hereby
quashed. It is directed that the amount, if any, recovered from the petitioner
shall be refunded to him along with interest @ 6% within a period of two
months from the date of receipt of certified copy of this order, failing
which, the delayed amount shall carry interest @10% till its actual payment
is made to the petitioner.
6. With the aforesaid, the petition stands allowed.
(VISHAL MISHRA)
JUDGE
JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE,
2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a,
postalCode=482001, st=Madhya Pradesh,
PAROUHA
serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143AD99
, cn=JITENDRA KUMAR PAROUHA
Date: 2024.12.24 11:01:41 +05’30’
JP
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