IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE MANINDER S. BHATTI

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ON THE 27 OF JANUARY, 2026 WRIT PETITION No. 35676 of 2025 DR SMT PARAMJEET KAUR GOGIA Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Karamjeet Singh Wadhwa - Advocate for the petitioner.

Ms. Kanak Gaharwar G.A. appeared for respondent.

ORDER Counsel contends that the petitioner is questioning the impugned order by which the respondents proposed to recover the amount after retirement of the present petitioner. It is contended by the counsel that the recovery order is an offshoot of the fixation carried out by the respondents. It is contended by the counsel that the impugned order contains a reference to the undertaking given by the present petitioner. Counsel contends that as the retiral dues were not being disbursed, therefore, under compulsion, the petitioner was pitchforked to give the undertaking. Hence the recovery be quashed in the light of the decision of the Apex Court in the case of State of Punjab and Ors. Vs. Rafiq Masih and Ors. reported in 2015 (4) SCC 334 as well as Full Bench of this Court in WA No.815/2017 (State of M.P. and Ors.

Vs. Jagdish Prasad Dubey) dated 06/03/2024.

2. Counsel for the State submits that as there exists undertaking as well as indemnity bond so executed by the petitioner, therefore he cannot dispute the same.

3. Having considered the submissions and perused the record reflects that the order of recovery is being assailed in the petition. The issue pertaining to recovery from employees who were holding the post of Class- III employees, after retirement came up for hearing before the Apex Court in the case of Rafiq Masih (Supra) wherein the Apec Court held in paragraph

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

(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."

4. Again the controversy came up for consideration before the Full Bench of this Court in W.A. No. 815 of 2017 (State of M.P. & others Vs. Jagdish Prasad Dubey), wherein, by order dated 06.03.2024, the Full Bench of this Court formulated the following three questions for consideration:

"1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.

2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under Rule 65 of M.P Civil Services Pension Rules, 1976.

3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another)