WP/8400/2020 of AABHUSHAN PAUL Vs STATE OF M.P. THROUGH DEPARTMENT OF PUBLIC HEALTH AND FAMILY WELFARE on 2 February 2024

ORDER

Matter is heard finally with the consent of parties.

2. In this petition under Article 226 of Constitution of India, thepetitioner has approached this Court being aggrieved by the inaction of the respondents vide order dated 04/05/2020 (Annexure-P/1), by whichthe respondents have revised pay fixation and directed for the recovery ofRs.1,49,685/- in installments @ Rs.12,000/- per month.

3. Brief facts of the case are that the petitioner was initially appointedon the post of “Multiple Health Worker” on 20/12/1999, which is Class-IV post. In the year 2010, pay-scale was revised and one increment wasgranted to the petitioner, further in the year 2011 pay fixation was done.Vide impugned order dated 17/10/2019 respondents revised pay-scaleand withdrawn the pay fixation done earlier. Vide order impugned dated04/05/2020 respondents arbitrary directed for deduction of Rs.12,000/-per month uptill Rs.1,49,685/- is not recovered from the salary of the petitioner.

4. Learned counsel for the petitioner submitted that petitioner isClass-IV employee and huge amount was arbitrarily directed to berecovered without furnishing any details and also without granting anyopportunity of hearing.

5. Learned counsel for the petitioner challenges the aforesaidrecovery on the strength of judgment of the Supreme Court in the case ofState of Punjab and others Vs. Rafiq Masih (White Washer) etc (2015 (1) MPHT 130 (SC), wherein it has been held as under :- "While it is not possible to postulate all situations ofhardships where payments have mistakenly been made by anemployer, in the following situations, a recovery by theemployer would be impermissible in law:

(i) Recovery from employees belonging to Class-III andClass-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees whoare due to retire within one year of the order of recovery.

(iii) Recovery from employees, when the excess paymenthas been made for a period in excess of five years, before theorder of recovery is issued.

(iv) Recovery in cases where an employee has wrongfullybeen required to discharge duties of a higher post, and hasbeen paid accordingly, even though he should have rightfullybeen required to work against an inferior post.

(v) In any other case, where the Court arrives at theconclusion, that recovery if made from the employee, wouldbe iniquitous or harsh or arbitrary to such an extent, as wouldfar outweigh the equitable balance of the employer's right torecover.”

6. Learned counsel for the petitioner has relied upon Clauses (i) and(iii) above to bolster his submissions. It is submitted that neither duringpetitioner's entire service career nor at the time of revision of pay-scaleany undertaking was ever furnished by the petitioner. That apart, theentire recovery without any notice and opportunity of hearing is patentlyillegal for want of observance of principles of natural justice. Therefore,the impugned recovery, deserves to be quashed.

7. Per contra, learned Panel Lawyer for the respondents/Statecontended that pay of the petitioner was revised w.e.f. 01/07/2010 but hewas wrongly granted pay-scale i.e. of Rs.305/- in excess and the saidmistake was continued till September, 2019, therefore, the said recoverywas sought to be made.

8. The matter was referred to the Treasury for approval of payfixation, at that time the Treasury took objection and when this mistakewas noticed, the recovery with interest was initiated against the petitioneron account of erroneous pay-scale given to him, for which the petitioneris not entitled, therefore, the amount paid in excess deserves to berecovered.

9. With the aforesaid submissions, learned Panel Lawyer for therespondents/State submitted that no illegality has been committed whileordering the recovery.

10. In response, learned counsel for the petitioner contends thatjudgment of Supreme Court in the case of High Court of Punjab andHaryana Vs. Jagdev Singh passed in Civil Appeal No.3500 of 2006 isdistinguishable on facts and has no application to the factual matrix inhand, in as much as, at the time of extension of benefit of revised payscale neither any undertaking was required from the petitioner norpetitioner furnished any such undertaking. As such, the judgment of theApex Court in the case of Rafiq Masih (Supra)has full application.

11. Heard learned counsel for the parties.

12. Looking to the factual matrix in hand and also the fact that theissue with regard to recovery has been settled by Apex Court in thematter of Rafiq Masih (Supra) the recovery as sought by therespondents is illegal. Admittedly, no undertaking of the nature asreferred to in paragraph 9 of the judgment in Jagdev Singh (Supra)waseither asked for or furnished by the petitioner. Under thesecircumstances, judgment of Apex Court in the case of Rafiq Masih(Supra)has full application to the facts in hand; firstly for the reason thatneither the recovery from the employee belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service) and; secondly therecovery from the employees, when the excess payment has been madefor a period in excess of five years, before the order of recovery is issuedcannot be made, which is covered as per Clause (i) and (iii) of the RafiqMasih (Supra), as quoted above.

13. Consequently, the impugned order of recovery dated 04/05/2020 ishereby quashed. The respondents are directed to refund the amount recovered from the petitioner with interest at the rate of 6% per annumfrom the date of recovery till its payment, within six weeks from the dateof submission of certified copy of this order by the petitioner.

14. The petition, accordingly, stands allowed and disposed off.

No order as to costs.

(S. A. DHARMADHIKARI)

JUDGE

Aiyer*