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Ramesh Chand Sharma & Others v/s The State of Madhya Pradesh & Others

    WP Nos. 1303 & 1304 of 2016

    Decided On, 01 May 2017

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE ROHIT ARYA

    For the Petitioners: Mahesh Goyal, Advocate. For the Respondents: N.S. Kirar, Advocate.



Judgment Text

Rohit Arya, J.

1. The petitioners, Store Keepers, reached the age of superannnuation on 31.10.2015 and are retired employees, have been subjected to recovery purportedly on an objection raised by the audit party vide impugned order - Annexure P/1.

2. Learned counsel for the petitioners submits that if according to the respondents there was wrong fixation of pay in the year 1991 and 1996, which led to alleged erroneous fixation in subbsequent period, this by itself shall not entitle the respondents to issue order for recovery as the cases of the petitioners have fully protected and covered by the law laid down by the Supreme Court in the case ofState of Punjab v. Rafiq Masih - (2015) 4 SCC 334, where under in para 18 it has been 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 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."

3. Learned counsel refers to Clause (ii) of the aforesaid judgment to bolster his submission.

4. That apart, learned counsel further contends that the so called objection is factually incorrect as petitioners were extended the benefit of pay scale of Store Keeper by way of promotion duly approved by the respondents as per Singh Deo Committee's recommendation and thereafter the said pay scale was further revised in view of Bramha Swaroop Committee and consequently benefits have been extended. hence, the audit objection as regards wrong fixation of the pay and consequent revision thereof is not sustainable. Hence, the impugned recovery is not sustainable in the eye of law. Besides, the petitioners are entitled for fixation of their pension and other pensionary dues as per the last pay drawn by them and also entitled for the interest on the delay payment of pension and pensionary dues.

5. Per contra, Shri N.S. Kirar, learned Panel Lawyer fairly submits that the recovery has been ordered in view of the audit objection. There is no illegality in the objection so raised. Petitioners were not entitled for pay scale granted to them in the year 1991 and 1996, therefore subsequent revision of pay scale were erroneous. Hence, recovery ordered for the period w.e.f. 15.3.1991 to 21.8.2003 and thereafter the refixation is justified.

6. Heard.

7. Admittedly, the petitioners have retired in the year 2015. The alleged wrong fixation is of the year 1991 and 1996 and alleged recovery is of the period w.e.f. 15.3.1991 to 21.8.2003. Without commenting upon the merits of the contentions, so advanced, the aforesaid recovery is non est in the eye of law in the teeth of Clause (ii) of the judgment in the case of Rafiq Masih's (supra) quoted above, hence, the impugned recovery is hereby quashed.

8. However, as regards the prayer for direction to the respondents to fix pension and release pensionary dues taking into consideration the last pay drawn by the petitioners, as claimed, as a matter of fact requires adjudication on facts and therefore, in the fitness of things, it is considered apposite to relegate the petitioners to the respondents No.2 to 4 to put forth their point of view in the context of pay fixation and revision of pay as well as justifiability of calculation of pension and other retiral dues as per the last pay drawn by them. Therefore, following directions are issued in that behalf :-

(i) Petitioners are set at liberty to file a detailed r

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epresentation to the respondents No.2 to 4 seeking fixation of pension and pensonary dues as per the last pay drawn as well as for interest on delayed pension of pension and pensionary benefits. (ii) Respondents No.2 to 4 are directed to decide the representation within a period of eight weeks from the date of submission of the representation and after decision the respondents shall release pension and pensionary dues without any further loss of time. 9. Petition is disposed of accordingly.
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