--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 5934 / 2006 BADRI PRASAD SONI Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 25/8/2011) The petitioner before this Court, a retired Government Servant has filed this present writ petition being aggrieved by the action of the respondents in recovering an amount of Rs.66267.00 from the gratuity of the petitioner. The contention of the petitioner is that he was appointed as an Overseer on 4/8/90 in the pay scale of Rs. 170 – 315 and was later on promoted as an Asstt. Engineer in the pay scale of Rs.8000 – 13500 vide order dt. 11/3/99. The petitioner has further stated that the respondents have conferred him the benefit of revised pay scale by taking into account the provisions of FR 22 D in the year 1999 itself vide order dt. 23/8/99. However, at the time of his retirement on 31/1/06 a pension payment order was issued, wherein a sum of --- 2 --- Rs.66267/- has been illegally deducted from the gratuity of the petitioner. The contention of the petitioner is that he has never misrepresented facts before the Department in the matter of pay fixation and erroneous pay fixation, if any, has been done by the respondents and therefore for the action which the petitioner has not done, he cannot be held responsible and the consequential recovery is bad in law in the light of the judgment delivered by the apex court in the case of Shyambabu Verma Vs. Union of India & Ors., reported in 1994 (1) SCC 683 and Sahibram Vs. State of Haryana reported in 1995 (1) SCC 18. He has prayed for issuance of appropriate, writ, order of direction directing the respondents to refund the amount already deducted from his gratuity. A reply has been filed in the matter and the stand of the State Government is that the petitioner was conferred with the benefit under FR 22 D however, his pay fixation was required to be done under FR 22 A (i) because the petitioner was also granted kramonnati in the pay scale of Rs. 8000 – 13500 w.e.f. 1/4/97 and thereafter he was --- 3 --- promoted as an Asstt. Engineer w.e.f. 20/5/99 in the same pay scale of Rs.8000 – 13500. The contention of the respondents is that the petitioner on account of fixation of his pay was granted emoluments more than his entitlement and he was wrongly fixed at Rs.10750.00 at the time of promotion in the pay scale of Rs.800 – 13500 whereas he should have been fixed at Rs.10200/-. The respondents have also stated that the petitioner has submitted an indemnity bond on 21/11/05 permitting the Government to recover any excess amount from the pensionary benefits of the petitioner, drawn by the petitioner more than his entitlement during his service tenure and therefore by virtue of the indemnity bond dt. 21/11/05, they have rightly recovered the amount in question. The respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner was appointed as an Overseer and was later on promoted to the post of Asstt. Engineer. He was conferred --- 4 --- with the benefit of higher pay scale under the kramonnati scheme ie., the pay scale of Rs.8000 – 13500 w.e.f. 1/4/97 and he was promoted to the next higher post ie., Asstt. Engineer in the same pay scale of Rs.8000 – 13500 w.e.f. 20/5/99. The respondents while granting him the benefit of promotion have fixed his pay at Rs.10750 instead of 10200 and the detail in respect of the pay fixation is also on record. This court has minutely gone through the calculation furnished by the respondents and there is no rejoinder denying the aforesaid pay fixation done by the respondents nor any irregularity of any kind has been pointed out in the matter of pay fixation. Resultantly, this Court is of the considered opinion that the revised pay fixation done by the respondents dt. 7/1/06 does not warrant interference. However, in the present case, the petitioner, at the time when he was conferred with the benefit of higher pay scale on account of kramonnati or on account of promotion to the post of Asstt. Engineer has not misrepresented any fact before the Department and mistake, if any, which took place in the matter is certainly on the part --- 5 --- of the employer. The apex court in the case of Shyambabu Verma Vs. Union of India & Ors., reported in 1994 (1) SCC 683 and Sahibram Vs. State of Haryana reported in 1995 (1) SCC 18 has held that in case an employee is not at fault in the matter of pay fixation and has not misrepresented the facts before the Department, recovery initiated by the employer deserves to be quashed. In the present case, there is also an undertaking on record but the fact is that the aforesaid undertaking was obtained by the respondents on the eve of retirement of the petitioner. It is not an indemnity bond which was obtained by the respondents at the time of pay fixation in the year 1996. A retiring employee is required to sign large number of documents and the indemnity bond submitted by the petitioner on the eve of retirement will certainly not come to the rescue of the State Government in the matter of recovery in respect of pay fixation of the year 1999. The recovery order against the petitioner is accordingly quashed Resultantly, respondents are directed to refund the amount recovered from the petitioner from his pensionary --- 6 --- dues within a period of 3 months from the date of receipt of certified copy of this order. It is needless to mention that in case the aforesaid amount is not refunded to the petitioner within the aforesaid period, the same shall carry interest @ 12.5% p.a., from the date of entitlement till the amount is actually paid to the petitioner. The petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR