ORDER

1. In pursuance of the directions issued by the apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government.

2. With the consent of rival parties, the matter is heard finally.

3. In this petition under Article 226 of Constitution of India, the petitioner has assailed pension payment order so far as recovery of Rs. 1, 96, 980/- is concerned, which has been made from the retiral dues (gratuity) of the petitioner.

4. Brief facts giving rise to filing of present petition is that the petitioner is aggrieved by order of recovery after retirement. The grievance of the petitioner is that neither affording any opportunity of hearing nor issuance of show cause notice, the said amount has been deducted from the retiral dues (gratuity) of the petitioner. The petitioner was neither found guilty of any misconduct nor held guilty for any offence in the criminal proceedings. The inaction on the part of the respondents is in flagrant violation of principles of natural justice. The petitioner has superannuated in February, 2016. The petitioner further contends that the said amount cannot be recovered from the retiral dues of the petitioner because there is no misrepresentation or fault on the part of the petitioner. The said recovery has been done without prior approval of the Governor which is violation of Rule 9 of the Pension Rules, 1976. He further contends that the Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer), (2015) 1 M.P.H.T 130 (SC) has held that no recovery can be effected from the retrial dues of the employee after his retirement. In view of above, it is prayed that recovery of Rs.1,96,980/- already made from the retiral dues (gratuity) of the petitioner needs to be refunded along with interest.

5. On the other hand, learned State counsel by filing return contended that originally petitioner was appointed as Constable w.e.f. 2.4.1976 and he remained posted in different units in the District Police Force in District Shivpuri. After implementation of Revision of Pay Rules, 1990, the pay of the petitioner was wrongly fixed w.e.f. 1.1.1986 and he continued to receive the payment, due to such incorrect pay fixation, however, after retirement when the service book of the petitioner was forwarded for verification before the Joint Director, Treasury, Accounts and Pension, on verification, the Joint Director, Treasury, Accounts and Pension, raised objection about incorrect pay fixation w.e.f. 1.1.1986 and as per direction of Joint Director, Treasury, Accounts and Pension, the pay fixation of the petitioner has been corrected and vide order dated 25.1.2016, before retirement of petitioner, correct pay fixation was made and therefore, amount of recovery of Rs. 1, 96, 980/- has been made. Moreover, petitioner has also given undertaking that in case any excess amount is being paid to the petitioner then the respondents would be at liberty to recover the same from the petitioner.

6. From the facts of the case, it is clear that pay of the petitioner was fixed w.e.f. 1.1.1986. There is no allegation that the same was fixed due to the collusion with anybody. Moreover, the undertaking given by the petitioner at the time of retirement cannot be said to be undertaking of pay fixation, which was given in the year 1986, therefore, the instant petition deserves to be allowed.

7. The Hon'ble Supreme Court in the case of Syed Abdul Qadir and others v 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 recov