Madhya Pradesh High Court
Preetam Rusiya vs The State Of Madhya Pradesh on 29 November, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
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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. 14877 of 2019
PREETAM RUSIYA
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.1,42,587/- 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.
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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
NEUTRAL CITATION NO. 2024:MPHC-JBP:633153 WP No.14877/2019
1.3.2007 was not correct and extra 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
NEUTRAL CITATION NO. 2024:MPHC-JBP:633154 WP No.14877/2019
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 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
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
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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
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.
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(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 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:
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(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
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
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
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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
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
NEUTRAL CITATION NO. 2024:MPHC-JBP:63315
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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.
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
JP
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 11:05:53 +05’30’
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