HIGH COURT OF MADHYA PRADESH W.P. No.5129/2017 (Kamal Singh Khichi Vs. State of M.P. and others) Indore, Dated: 19/2/2018 Shri [ENTITY], learned counsel for the petitioner. Shri [ENTITY], learned counsel for the respondents.
Heard finally with consent.
By this writ petition, the petitioner has challenged the recovery of a sum of Rs. 3,23,236/- which has been affected after his retirement.
The case of the petitioner is that he was initially appointed as Ward Boy on 16/07/1985 and had retired on 31/8/2016 on attaining the age of superannuation but while settling his pensionary dues, the respondents had issued the impugned order dated 25/11/2016 for recovery of sum of Rs. 3,23,236/-.
The respondents have filed their reply taking the stand that when the petitioner was appointed as Ward Boy on 16/07/1985, at that time he was entitled to salary on the basic pay of Rs. 380/- but by mistake he was given basic pay of Rs.400/- and accordingly he has received excess amount throughout his tenure and the said mistake was detected after his retirement therefore, the impugned recovery has been affected. The respondents have also filed Annx.R/2 which is said to be undertaking given by the petitioner to the respondents.
Having heard the learned counsel for parties and on perusal of the record, it is noticed that the said wrong grant of basic pay was not on account of any misrepresentation or fraud at the instance of the petitioner. It is undisputed that before passing the impugned order no opportunity of hearing has been given to the petitioner.
The Supreme Court in the matter of State of Punjab and others etc. Vs. [ENTITY] (White Washer) etc Civil Appeal No.11527/2014 by order dated 18th December, 2014 considering the issue of recovery of amount and hardship caused in consequent thereof in similar circumstances has held that:-
"12] 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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."
The case of the petitioner is squarely covered by [SECTION] of the aforesaid judgment. Hence, in view of the judgment of the supreme court in the matter of [ENTITY] (supra), the respondents cannot be permitted to make the recovery at this stage.
Learned counsel for respondents has also placed reliance upon the undertaking Annexure R/2, but it was not taken from petitioner when the pay fixation was done but it was taken after his retirement, therefore, such an undertaking is of no consequence. Even otherwise the principal bench in WA No.1232/2017 in the matter of [PRECEDENT] vide order dated 15/12/2017 while considering the issue of undertaking has held that the giving of such an undertaking is not a voluntary act and the recovery on that basis, therefore, cannot be sustained. The Division Bench in WA No.1232/2017 (supra) in this regard has held that:-
"The challenge in the present appeal is to an order passed by the learned Single Bench on 16.08.2017 whereby recovery of Rs.87,354/- on account of excess payment in the matter of payfixation was set aside relying upon an order passed by the Supreme Court in the case reported as (2015) 4 SCC 334 (State of Punjab v. [ENTITY]). Learned counsel for the appellants relies upon a later judgment of the Supreme Court reported as (2016) 14 SCC 267 (High Court of Punjab and Haryana and others vs. Jagdev Singh) to contend that as the writ petitioner has given an undertaking to the effect that the pay-fixation is provisional and that if after final fixation, if any recovery is to be effected, the same can be effected from the benefits payable to the writ petitioner and also from his legal heirs, if the situation so arises, therefore, the order passed by the learned Single Judge is not sustainable and that the State has a right to recover the amount of excess payment made earlier.
We find that the said judgment relied upon by learned counsel for the State has no applicability in the facts of the present case as the undertaking itself is unconscionable writing obtained by the State. The employee has no option but to submit undertaking to avail the benefit of pay-fixation. In a judgment of the Supreme Court reported as [PRECEDENT], a condition in the appointment letter that the Corporation could terminate the services of the employees without prior notice if it was satisfied that the employee was unfit medically or was guilty of any subordination in respect of other misconduct, was found to be illegal. The Supreme Court held as under:-
"68. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is "the State" within the meaning of the expression in [SECTION], is void as being violative of [SECTION]. What is challenged under this head is [SECTION] of the said Rules. This challenge levelled by the Respondent in each of these two Appeals succeeded in the High Court. xxx xxx
78. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.
xxx xxx
93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of [PRECEDENT], however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In [PRECEDENT] reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873):
"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by [ENTITY] and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail."
The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void."
In view of the aforesaid judgment, we find that since the employee has no option but to give undertaking so as to avail the benefit of pay- fixation, it cannot be said to be voluntary act thus, such undertaking cannot be made basis for sustaining the recovery of Rs.87,354/-. In view of the said fact, we do not find any error in the order passed by the learned Single Bench warranting interference in the present appeal. The same is dismissed."
Having regard to the aforesaid facts and legal position, I am of the opinion that the impugned recovery cannot be sustained and is hereby set aside. However, the pay fixation is maintained. The respondents are directed to refund the amount, if any, already recovered from the petitioner within a period of three months from today.
The writ petition is accordingly disposed of.
C.C. as per rules.
([ENTITY]) Judge BDJ Date: 2018.02.22 16:21:34 -08'00'