Natthu Khan vs State of M.P. and Others

M.C. Garg, J—The short point involved in this writ petition is as to whether the respondents are entitled to recover the sum of Rs. 1,57,604/- which payment has been made to the petitioner by the respondents on account of having worked by the petitioner for and above the period from the date of attaining the age of retirement. It is submitted by the petitioner that such amount ought not to have been recovered in the light of the judgment delivered by this Court in the case of P. Narayan Vs. State of M.P. & another reported in 2004 (4) MPHT 44 (NOC) and the judgment of the Apex Court delivered in the case of State of Punjab Vs. Rafiq Masih, (2014) 10 SCJ 700 .

In the aforesaid judgment, it has been held by the Hon''ble Supreme Court that in several cases where excess payment is made by the employer to the employee, such payment could not be recovered. Para 12 of the judgment is relevant wherein situations have been visualized where recovery is impermissible, which reads as under:-

"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, the 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."

Learned counsel for the respondents submits that in this case, the petitioner could work above the period from the date on which he ought to have been retired on account of fraud played by the petitioner himself inasmuch as when the original service book of the petitioner was not available, the respondents themselves prepared a duplicate service book and in the said service book, the date of birth of the petitioner has been shown as 20.8.1938 instead of 20.6.1936. It is on account of that he was allowed to work for 2 years and 2 months from the date of actual retirement. This factum of playing fraud came to the notice of the authorities only when original service book was traced out and was forwarded to the District Education Officer, Chhatarpur. It is further submitted that before the recovery, the notice was also given to the petitioner vide letter dated 31.1.2002 calling upon the petitioner to make the deposit of the aforesaid mentioned amount failing which, it was also stated that the amount will be recovered from the pension of the petitioner. Annexure R/3 for the ready reference is re-produced as under:-

It is, however, a matter of record that the respondents failed to pay retiral dues which were payable to the petitioner and therefore, the petitioner was compelled to approach the State Administrative Tribunal in Misc. Appeal; No. 193/2002 which was forwarded to this Court and was registered as MCC No. 2180/2003. The said writ petition was disposed of by following order:-"

18.1.2005.

Shri R.N. Shukla, Sr. Advocate with Shri A.K. Singh, Advocate for petitioner.

Shri Ashok Agrawal, Govt. Advocate for respondents.

Learned counsel for the parties submit that this petition can be disposed of by giving a simple direction that the retiral dues of the petitioner may be settled. In view of this joint submission, the respondents are hereby directed to settle retiral dues of the petitioner and whatever amount is payable, the same may be paid to him within a period of four months. The petitioner is hereby directed to furnish a certified copy of this order to the authority concerned.

The petition is disposed of finally."

It is submitted that even after aforesaid order, the respondents failed to make the payment and the petitioner ought to have filed a contempt petition. The said petition was registered as Contempt Petition No. 3169/2005 in which on 26.9.2005, following order has been passed:-

"26.9.2005

Shri R.N. Shukla, Sr. Advocate with Shri A.K. Singh for petitioner.

He is heard.

The contention of learned counsel is that in compliance to the order passed by this Court, most of the petitioner''s retiral dues are settled, however, the respondents have not paid the amount of gratuity. It be seen that under the Head of retiral dues the payment of gratuity is also included. If the amount of gratuity has not been paid to the petitioner by now, the same may be paid to the petitioner within a period of three months.

Let a typed copy of this order free of cost be given to Shri Samdarshi Tiwari, learned Dy. Govt. Adv. who shall intimate the said authority for compliance of the order.

With the aforesaid observations, this petition is disposed of."

It was for the respondents to claim set off with respect of the excess dues of the respondents in the previous litigation but they have done nothing. Even though according to them they gave a notice in the year 2002. However, when the orders were passed by this Court in Writ Petition No. 2180/2003, they made the payment without protest to recover from the petitioner.

It is a matter of record that the respondents have not claimed any set off with respect of the amount payable to the petitioner when directions have been made by this Court to make the payment of the retiral dues to the petitioner which included the amount payable for the period of 2 years and 2 months. It is also a matter of record that notice Annexure R/3 was given in the year 2002, even on that basis neither departmental enquiry was held nor any other enquiry was held so as to take a decision that the petitioner is not entitled to the dues for the excess work done by him.

Taking all these facts into consideration, I am of the considered view that the recovery of amount of Rs. 1,57,604/- by the respondents from the pension of the petitioner is not justified, therefore, they are directed to pay the aforesaid amount to the petitioner within one month from today. The payment if not paid within that period, this would be payable along with interest at the rate of 12% per annum.

With these observations, the petition stands disposed of.

C.C. as per rules.