ORDER

Petitioner has approached this Court assailing the order dated 08.09.2022 passed by Executive Engineer Public Health and Engineering Department Division Khurai, District Sagar whereby recovery was initiated against the petitioner on the ground that excess amount paid to the petitioner to the tune of Rs.7,79,371/- on account of wrong pay fixation and total recoverable amount including interest, was fixed Rs.8,99,789/-.

2. Learned counsel for the petitioner submits that the petitioner was originally posted on 01.10.1983 as Daily Rated Mechanic and thereafter the services were regularized under the Work Charged Establishment, he was granted pay-Scale of 1150-1800 on 02.04.1988. However, as per the Department the Pay-Scale ought to have been granted of Rs.950-1530 and due to wrong pay fixation a recovery order was passed by the Executive Engineer on 08.09.2022 after superannuation of petitioner. The petitioner retired on 31.03.2022 thereafter this recovery order has been issued. He further submits that as the petitioner was working as Head Pump Mechanic, no such amount can be recovered from the petitioner as the petitioner was not at fault for wrong pay fixation and the same was not fixed upon any misrepresentation of the petitioner. He further submits that entire gratuity amount of the petitioner has been withheld for the purpose of a recovery of the amount.

3. Learned counsel for the petitioner submits that as per Section 14 of the Payment of Gratuity Act, 1972 the amount of gratuity cannot be withheld and no recovery can be effected from the amount of gratuity. He further submits that as the petitioner was Class-III employee and the excess amount was paid to the petitioner from 1988 to 1998 therefore excess payment cannot be recovered after such a long period therefore, he prays for quashment of the order of recovery.

4. Learned counsel for the petitioner relied upon the judgment delivered by the Coordinate Bench in the matter of Ramavtar Singh vs. State of MP and Another 2019 (1) MPLJ 658 wherein Coordinate Bench has held that no amount can be recovered or adjusted from the amount of gratuity. He further relied on the judgment of Coordinate Bench in the matter of Jagjit Singh Vs. State of MP and Others on 28.03.2019 wherein in the almost similar circumstances, the order of recovery was quashed and direction was issued to return the amount already recovered along with interest.

5. Learned Government Advocate appearing on behalf of State supported the order passed by Executive Engineer on the ground that due to wrong pay fixation , the excess amount was paid to the petitioner and the same can be recovered from the petitioner along with the interest and no illegality or irregularity committed by the Executive Engineer in passing such recovery order.

6. This is trite law that retiral dues of a government servant are not bounty. Retiral dues are earned by him by rendering long services to the department.

Retiral dues including gratuity are held to be "Property" within the meaning of Article 300-A of the Constitution. In catena of judgments, it was held that the retiral dues can be withheld only if a statutory provision is there which permits the Department to withhold/withdraw or stop pension placed retiral dues. No recovery can be made out of gratuity payable to the government servant. A plain reading of Rules of 65 of Pension Rules makes it clear that the law makers have decided to permit a Department to recover or adjust "ascertainable government dues" and no other amount is recoverable or adjustable from the retiral dues. In the present matter, the amount of gratuity was adjusted against the recoverable amount due to wrong fixation which is not permissible.

7. Supreme Court in the matter of State of Punjab and Ors. vs. Rafiq Masih( White Washers) and Ors reported in (2015) 4 SCC 334 has issued the Guidelines in respect of recoveries permissible from the retired Govt.

servant. The Guidelines reads as