IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN rd ON THE 3 OF JULY, 2024 WRIT PETITION No. 25666 of 2023 (SMT. SAVITA MEHTO Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Appearance:

(SHRI SHANKAR DAYAL MISHRA - ADVOCATE FOR THE PETITIONER) (SHRI ANUJ SINGH - PANEL LAWYER FOR THE RESPONDENT / STATE)

ORDER

Challenge in this petition is made to recovery being effected from the retiral dues payable to the petitioner on account of death of her husband who expired while in service on 22.12.2018. It is the case of the petitioner that as per the information received under the Right to Information Act the petitioner was informed about the recovery pending against her deceased husband. This information was obtained in the year 2020 and the petitioner criticizes the recovery against her deceased husband who was posted as Head Constable in Madhya Pradesh Police, being made from retiral dues payable to the petitioner after the death of her husband.

2 . Per Contra, learned counsel for the State has submitted that there were punishment orders against the deceased husband of petitioner and on account of finding of misconduct, there was an order dated 13.12.2011 wherein the punishment of reduction of one increment with cumulative effect was imposed on the deceased employee. However, the deceased employee kept on obtaining pay with increased increment without implementation of the order dated 13.12.2011. Learned counsel for the State has further submitted that an order dated 13.02.2018 was passed whereby a period of 1007 days was Signature Not Verified Signed by: NAVEEN KUMAR declared to be leave without pay for which the deceased employee had already obtained salary. Thus it is contended that the recovery proposed against the petitioner is recovery on account of penalty order on findings of misconduct against deceased husband of the petitioner and is not a case of mistaken excess payment or mistaken erroneous fixation. Rather it is a case of penalty orders being executed which were lawfully passed against the deceased husband of the petitioner while he was in service as Head Constable in police force. 3. Heard the learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner has heavily relied upon the judgment of Hon’ble Apex Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334 to submit that the recovery from retired or deceased employee from pensionary benefits is bad in law. No doubt, the recovery from employees belonging to Class-III, Class- IV service and recovery from retired employees or employees who are due to retire within one year and has been held to be bad in law. However, it is not a case of mistaken payment but it is a case of recovery being proposed on account of lawfully passed penalty orders against the deceased employee while he was in service. The Hon’ble Court in the case of Rafiq Masih (supra) has taken note of certain previous cases wherein wrongful payment was made and it was erroneously made to the employee and the employee did not have knowledge that he is getting some payment which is over and above his actual entitlement. The Hon’ble Apex Court also took note of the cases where employee got payment in excess of his entitlement for a number of years exceeding five years.

The Hon’ble Apex Court in Rafiq Masih (supra) case has held as under:

"11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery Signature Not Verified Signed by: NAVEEN KUMAR of the excess amount paid to the employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.

12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar [Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC (L&S) 744] , wher