IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANIL VERMA th ON THE 29 OF NOVEMBER, 2024 WRIT PETITION No. 7655 of 2016 MANSHA RAM PAL Versus THE STATE OF MADHYA PRADESH THR AND OTHERS Appearance:

Shri Vinay Kumar - Advocate for the petitioner.

Shri K.K.Prajapati - GA for the respondents/State.

ORDER With the consent of both parties, the matter is finally heard at the motion stage.

The petitioner has preferred this petition under Article 226 of the Constitution of India seeking the following relief :

"(7.1) The concerning respondents kindly be directed to refund an amount of Rs.3,91,466/- to the petitioner with interest till the actual payment is made;

(7.2) The order of recovery for Rs.3,91,466/- kindly be quahsed as the same is not sustainable in law;

(7.3) Any other just and proper relief warranting under the facts and circumstances of the case be also given to the petitioner in the ends of justice";

Brief facts of the case are that the petitioner was initially appointed as constable in the 14th BN SAF, Gwalior on 04.03.1977. Thereafter, he was promoted to Head Constable and Assistant Platoon Commander and thereafter, as Company Commander. He retired on 31.07.2016 on attaining the age of superannuation from the post of Company Commander which is a Class III post.

Signature Not Verified Signed by: RAM KUMAR After retirement, respondent No.6 issued a PPO on 8.7.2016 inflicting recovery of Rs.3,91,466/- and the same has been recovered from the amount of gratuity of the petitioner. A recovery order has been passed without giving any notice and also without giving any opportunity of hearing in an arbitrary manner. Being aggrieved by the same, the present petition has been preferred.

Per contra, learned counsel for the respondents/State opposed the prayer and by submitting a return submits that at the time of retirement of the petitioner, PPO was issued wherein, it was found that an excess amount of Rs.3,91,466/- has been paid to the petitioner due to wrong fixation. The petitioner submitted an undertaking Annexure R/1 before the respondents that if any excess amount is paid to him, he will return the same. Annexures R/1 and R/4 were executed in the year 2009 and 1998 respectively. On the basis of the aforesaid undertakings, the amount paid in excess to the petitioner has been recovered from his retiral dues. The petition of the petitioner is highly misconceived and meritless and the same deserves to be dismissed.

Heard learned counsel for the parties and perused the documents appended with the petition.

The Finance Department of Madhya Pradesh issued a circular dated

31.03.2016 (Annexure P/3) in which, it has been held as under :

"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 hereinabove, we, may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

Signature Not Verified Signed by: RAM KUMAR (i) Recovery from the employees belonging to Class III and class IV service ( or Group C and Group D service).

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

(iii) Recovery from the 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."

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