Narayan Lal Batham vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
1 WP-39760-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
th
ON THE 4 OF NOVEMBER, 2026
WRIT PETITION No. 39760 of 2024
CNR No.: MPHC030295672024
NARAYAN LAL BATHAM
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Girija Shankar Sharma along with Shri D.S. Raghuvanshi -
Advocates
Shri K.K. Prajapati- Government Advocate for respondent/State.
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s):-
"7.1 That, the impugned recovery of Rs. 86,547/-
may kindly be quashed.
7.2 That, the respondents authority be directed to
refund the recovered 12% per annum to the amount
of Rs. 86,547/- with interest petitioner.
7.3 That, the other relief doing justice including cost
be awarded."
2. It is submitted by learned counsel for petitioner that initially petitioner
was appointed on the post of Amin in the year 1983. Petitioner stood retired on
31.12.2017. Afterwards, service book was referred to the Joint Director,
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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Treasury, Accounts and Pension Department, Gwalior and Chambal Division, to

check whether increment of wages and pay fixation was done as per Rules or not
and as per their objection, petitioner was given benefit of wrong pay fixation. On
that basis, recovery of Rs.86,547/- has been ordered.
3. Learned counsel for petitioner submits that without giving any show-
cause notice or without affording an opportunity of hearing, without following the
principle of natural justice and on the basis of objections raised by Treasury
Department, impugned order of recovery Annexure P-2, calculating recovery to
the tune of Rs.86,547/- has been issued. Learned counsel for petitioner submits
that petitioner stood retired from the post of Amin which is a Class III post and
recovery after retirement of employee is not permissible. It is submitted that
alleged excess amount has been paid on account of wrong fixation of salary of
petitioner carried out from 01.04.2006 till 01.12.2017, however, petitioner is not
responsible for wrong fixation. To strengthen his submission, learned counsel for
petitioner placed reliance on the Full Bench decision of this Court in the case of
State of Madhya Pradesh & others Vs. Jagdish Prasad Dubey reported in (2024) 2
M.P.L.J.198.
4 . Per contra, learned counsel for the State opposed the prayer and
submitted that the excess amount was paid on account of erroneous fixation of
salary and therefore, the respondents are entitled to recover the amount paid in
excess. It is further submitted by him that he had given consent for recovery in
case of excess payment (Annexure R-4). It is further submitted that the said
undertaking had been given by petitioner voluntarily therefore the principle laid
down by Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih
(White Washer), (2015) 4 SCC 334 is not applicable in case of petitioner.
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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5. Considered the submissions put forth by learned counsel for the parties

and perused the record.
6. The Full Bench of this Court in the case of Jagdish Prasad Dubey
(supra), has dealt with the similar issue and held as under:

"35. (a) Question No. 1 is answered by holding that
recovery can be effected from the pensionary benefits or
from the salary based on the undertaking or the indemnity
bond given by the employee before the grant of benefit of
pay refixation. The question of hardship of a Government
servant has to be taken note of in pursuance to the
judgment passed by the Larger Bench of the Hon'ble
Supreme Court in the case of Syed Abdul Qadir (supra).
The time period as fixed in the case of Rafiq Masih (supra)
reported in (2015) 4 SCC 334 requires to be followed.
Converselyan undertaking given at the stage of payment of
retiral dues with reference to the refixation of pay or
increments done decades ago cannot be enforced.

(b) Question No. 2 is answered by holding that recovery
can be made towards the excess payment made in terms of
Rules 65 and 66 of the Rules of 1976 provided that the
entire procedures as contemplated in Chapter VIII of the
Rules of 1976 are followed by the employer. However, no
recovery can be made in pursuance to Rule 65 of the Rules
of 1976 towards revision of pay which has been extended
to a Government servant much earlier. In such cases,
recovery can be made in terms of the answer to Question
No.1.

(c) Question No.3 is answered by holding that the
undertaking given by the employee at the time of grant of
financial benefits on account of refixation of pay is a forced
undertaking and is therefore not enforceable in the light of
the judgment of the Hon'ble Supreme Court in the case of
Central Inland Water Transport Corporation Limited
(supra) unless the undertaking is given voluntarily."

Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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7. The Apex Court has also dealt with the similar issue in the case of Rafiq

Masih (White Washer) (supra), wherein, the Apex Court held 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 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."

8. The Supreme Court in the case of Jogeswar Sahoo and others Vs.
District Judge, Cuttack and others reported in 2025 (3) M.P.L.J. (S.C.) 25 has
held as under:
“ 11. In the case at hand, the appellants were working on the
post of Stenographers when the subject illegal payment was
made to them. It is not reflected in the record that such
payment was made to the appellants on account of any
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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fraud or misrepresentation by them. It seems, when the
financial benefit was extended to the appellants by the
District Judge, Cuttack, the same was subsequently not
approved by the High Court which resulted in the
subsequent order of recovery. It is also not in dispute that
the payment was made in the year 2017 whereas the
recovery was directed in the year 2023. However, in the
meanwhile, the appellants have retired in the year 2020. It
is also an admitted position that the appellants were not
afforded any opportunity of hearing before issuing the
order of recovery. The appellants having superannuated on
a ministerial post of Stenographer were admittedly not
holding any gazetted post as such applying the principle
enunciated by this Court in the above quoted judgment, the
recovery is found unsustainable.”


9. The co-ordinate Bench of this Court has already decided the matter
pertaining to the undertaking in the case of Ravindra Kumar Joshi Vs. The State
of Madhya Pradesh and others [Writ Petition No.17831/2019 vide order dated
13.05.2024], relevant of which is reproduced below for ready reference and
convenience:

8. …..........It is brought on record by the respondents that at
the time of extending benefit of time scale pay, petitioner
has submitted an undertaking which is placed on record by
the learned counsel for respondents/State and as per the
undertaking, the petitioner had undertaken to repay the
amount, if it was found that the same was extended to him
erroneously. In the matter of High Court of Punjab and
Haryana Vs. Jagdev Singh (supra), the Apex Court has held
that if any undertaking is submitted at the time of grant of
financial benefits on account of refixation of pay, the
amount is refundable to the Government or the same is
adjustable in future, and therefore, the action of the
respondent/Department appears to be correct. Full Bench
of this Court, in the matter of State of Madhya Pradesh and
others Vs. Jadish Prasad Dubey and others (supra) has
answered the question No.3 by holding that the undertaking
given by the employee at the time of grant of financial
benefits on account of refixation of pay is forced and the
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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same is not forcible in the light of the Judgment of Hon'ble
Supreme Court in the case of Central Inland Water
Transport Corporation Ltd. and another Vs. Brojo Nath
Ganguly and another (1986) 3 SCC 136, unless the
undertaking is given voluntarily meaning thereby that if
undertaking is given voluntarily, recovery is permissible
and if undertaking is forced, then no recovery is
permissible.


9. In the present matter, respondent/State has not
established that petitioner had given undertaking
voluntarily. Therefore, the undertaking shall be treated as
obtained forcefully and therefore, there is no circumstance
available in the case to consider the undertaking, which
was not given voluntarily. On the strength of undertaking,
recovery can not be affected.”

10. Wrong pay fixation was carried out from 01.04.2006 and petitioner had
not furnished undertaking while fixation on 01.04.2006 (as there is no such
undertaking appended in the record). In absence of any specific undertaking at the
time of making payment of such amount i.e. 01.04.2006, the petitioner would be
entitled to the benefit of the dictum of Apex Court in the case of Rafiq Masih
(White Washer) (supra). So far as with regard to undertaking (Annexure R-
4) unless the undertaking is given voluntarily meaning thereby that if
undertaking is given voluntarily, recovery is permissible and if undertaking is
forced, then no recovery is permissible. In the present matter,
respondent/State has not established that petitioner had given undertaking
voluntarily. Therefore, the undertaking shall be treated as obtained forcefully
and therefore, there is no circumstance available in the case to consider the
undertaking, which was not given voluntarily. On the strength of undertaking,
recovery can not be effected. Further, in the light of Rafiq Masih (White
Washer) (supra), recovery from (i) employees belonging to Class-III and Class-
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33984
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IV service (or Group 'C' and Group 'D' service); (ii) retired employees, or

employees who are due to retire within one year, of the order of recovery;
and from (iii) employees, when the excess payment has been made for a
period in excess of five years, before the order of recovery is issued, is
impermissible.
11. Petitioner stood retired on 31.12.2017. Recovery pertains to the period
from 01.04.2006 to 01.12.2017 and it was initiated without giving any show-
cause notice to him or an opportunity of being heard. Furthermore, petitioner-
employee was a Class III employee (Amin). In view of the aforesaid legal
position, the impugned recovery is not permissible. Therefore, while setting aside
the impugned recovery, the respondents are directed to refund the amount of
Rs.86,547/- to petitioner. The respondents shall pay interest @ 6% per annum on
Rs.86,547/- w.e.f. the date of filing the present petition, failing which the entire
amount shall carry interest @12% per annum from the date of filing the present
petition till actual payment is made. It is made clear that in case no recovery is
made from the retiral dues, petitioner is not entitled to the aforesaid relief.
12. Let the said exercise, as directed above, be completed within a period
of 90 days from the date of submission of certified copy of this order.
13. The petition is, accordingly, disposed of.
(ANAND SINGH BAHRAWAT)
JUDGE
vpn/-

Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 11/6/2026
11:01:48 AM