Lalaram Yadav v. State of Chhattisgarh Through Principal Secretary Law Mahanadi

Mr. T. K. Jha, Advocate For Respondent No.1/State : Mr. B. D. Guru, Additional Advocate General, For Respondent No.2 : Mr. Gary Mukhopadhyay, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

19.06.2024 Heard.

This Writ Petition has been preferred against the recovery order dated

08.05.2017 (Annexure P/1) and reversion order dated 22.07.2016 (Annexure P/5) passed by respondent No.2/District Judge, Raigarh.

Learned counsel appearing for the petitioner would submit that the petitioner initially worked as a Peon. Subsequently, he was posted as an Aadesh Vahak/Process Server and transferred from the Court of Civil Judge Class-II, Sarangarh to Civil Court Sarangarh. He would further submit that the then District Judge directed that the employees who were working as Process Servers as on 01.04.2003 would receive the Process Server pay scale from -2- that date, whereas the employees who were promoted thereafter, would receive the Process Server pay scale from the date of their promotion.

It is also submitted that the petitioner has been performing the duties of a Process Server since 2009. However, vide order dated 22.07.2016 respondent No. 2 issued a ‘show cause notice’ to the petitioner questioning why recovery should not be made from him, as his promotion order to the post of Process Server appeared not to have been passed. It is further contended that despite replying to the notice, the petitioner was designated as a Peon by the District Judge vide order dated 22.07.2016 without any reversion order, later on, he was promoted to the post of Jamadar vide order dated 22.09.2016; thus, the impugned order may be set aside. He placed reliance on the judgments rendered by the Hon’ble Supreme Court in the matters of State of Punjab v. Rafiq Masih (White Washer) and others1 and Thomas Daniel v. State of Kerala and others2 to buttress his submission.

On the other hand, learned State counsel would submit that the order of recovery is valid and the excess amount paid to the petitioner can be recovered.

I have heard learned counsel appearing for the parties and perused the documents placed on the record.

In the matter of Rafiq Masih (supra) the Hon’ble Supreme Court has held in para-18 as under:- “18 it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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

1.(2015) 4 SCC 334 2.2022 LiveLaw (SC) 438: 2022 AIR SC 2153 -3- 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.”

In the matter of Thomas Daniel (supra), the Hon’ble Supreme Court has revisited the judgments passed in the cases of Sahib Ram v. State of Haryana and Others reported in 1995 Supp (1) SCC 18; Syed Abdul Qadir and Others v. State of Bihar and Others reported in (2009) 3 SCC 475; State of Punjab and Others v. Rafiq Masih (supra) and Col. B.J. Akkara (Retd.) v. Government of India and Others reported in (2006) 11 SCC 709 (para 9).

From a perusal of the documents placed on the file, it is apparent that:- (i) the Order of recovery of excess payment has been raised after 7-8 years; (ii) there was no misrepresentation on the part of the petitioner; (iii) no enquiry was conducted before passing the order impugned; and (iv) no opportunity of hearing was granted to the petitioner.

Considering the above-stated flaws, the impugned recovery order dated

08.05.2017 passed by respondent No. 2 (Annexure-P/1) is liable to be and is -4- hereby quashed.

Since no order with regard to reversion has been placed by the petitioner, only a show cause notice dated 22.07.2016 (Annexure P/5), has been placed, therefore, no relief can be granted in this regard. However, the petitioner would be at liberty to challenge the order of reversion, if any, issued to him.

The authorities shall refund the amount, if any, recovered from the petitioner within a period of two months from the date of receipt of a copy of this order, and the aforesaid amount shall carry interest @ 6 % per annum from the date of recovery till its realization.