1 - Meena Singh D/o Late Shri Mohan Singh, Aged About 63 Years R/o v. 1 - The State Of Chhattisgarh Through The Secretary, Department Of Health And Family
Case Details
1 Digitally signed by RAGHVENDRA JAT 2025:CGHC:38195 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2004 of 2023 1 - Meena Singh D/o Late Shri Mohan Singh, Aged About 63 Years R/o New Basantpur Hospital Colony, Basantpur, District Rajnandgaon, C.G. ... Petitioner(s) versus 1 - The State Of Chhattisgarh Through The Secretary, Department Of Health And Family Welfare, Mantralaya, Mahanadi Bhawan, Atal Nagar, New Raipur, District Raipur (C.G.) 2 - Director Health Services, Hod Office, Block No. 1, Third Floor, Indravati Bhawan, New Raipur, District Raipur, (C.G.) 3 - Civil Surgeon - Cum-Hospital Superintendent Officer Government Medical Hospital, Rajnandgaon (C.G.) 4 - Deputy Director (Nursing), Hod Office, Block No. 1, Third Floor, Indravati Bhawan, New Raipur, District Raipur (C.G.) For Petitioner(s) ... Respondent(s)
Legal Reasoning
passing of an order of recovery of Rs. 2,49,694/- is prima facie is due to mistake committed by the other employee of the respondent department. There is no mention or allegation against the petitioner of misrepresentation or suppression of any material fact at the time of fixation of pay. Hence, no recovery can be made from the retiral dues of the petitioner. She contended that the issue with regard to recovery of the excess payment made to the employees in particular, the Class III and Class IV employees has been considered by the Hon’ble Supreme Court in case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 and the Hon’ble Supreme Court has held that the recovery of excess payment made to the Class III and Class IV employee to be impermissible. He also contended that following the decision in the case of Rafiq Masih (Supra), Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has also allowed the Appeal filed by the appellant therein. 4 4. On the other hand, learned counsel for the Respondents/State submits that the respondent has returning back the amount of excess payment, if paid to her. He further contended that the recovery proceedings have been initiated after the retirement of the petitioner. 5. I have heard learned counsel for the parties and perused the documents placed on record. 6. It is undisputed that the excess payment made to the petitioner is on account of wrong fixation of pay made by the respondent department. In the reply submitted by respondent, there is no pleading that the petitioner in any manner had misrepresented or has suppressed the material fact or wrong fixation of pay is on account of any fraud committed by her. It is also not in dispute that the petitioner stood retired from the post of Nursing Sinster of respondent department which is a Class III post in set-up under Chhattisgarh Health Services Recruitment and Promotion Rules, 2019 (hereinafter for brevity referred to as the Rules, 2019). Hon’ble Supreme Court in the case of Rafiq Masih (Supra) has observed thus:- “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 5 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.” 7. Hon'ble Supreme Court in the case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. (2009) 3 SCC 475 considering the issued with regard to recovery of excess payment made to the petitioner therein has held as under : 6 “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (A) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of 7 the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 8. Considering the facts and circumstances of the case in particular, the fact that the order of recovery has been issued on 28.11.2022 and thereafter, the petitioner has retired from service after attaining the age of superannuation (i.e. 62 years) on 28.2.2022, the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (Supra) and Thomas Daniel (Supra), permitting the recovery of the excess payment from the petitioner who is a Class III employee will be harsh upon her and therefore, the order of recovery dated 2.3.2023 is quashed. 9. At this stage, learned counsel for the petitioner submits that according to the documents placed on record, it is reflecting that the respondents have recovered entire amount of Rs. 2,49,694/-. In the aforementioned facts of the case, the respondents are 8 directed to return back the amount recovered from the petitioner within a period of 03 months from the date of receipt of the order, failing which, it shall carry interest at the rate of 18% per annum and decided in WA No. 762/2024 (Hari Prakash Beohar vs. State of Chhattisgarh & Another) . 10. With the aforementioned observation and direction, writ petition is allowed. Raghu Jat Sd/- (Amitendra Kishore Prasad) Judge
Arguments
: Ms. Shalini Kashyap, Advocate on behalf of Mr. Rahul Tamaskar, Advocate. For Respondent(s)/ State : Mr. Abhishek Singh, Panel Lawyer. 2 Hon’ble Mr. Justice Amitendra Kishore Prasad 01/08/2025 Order on Board 1. By way of this petition, the petitioner has prayed for following reliefs:- “10.1. The Hon'ble Court may kindly be pleased to quash the impugned order/communication dated 02/03/2023 Annexure P/4 and direct the Respondent authorities not to make any recovery from the petitioner for alleged excess payment made by the concerned authorities; and 10.2. The Hon'ble Court may kindly be pleased to direct the respondent authorities to make payment of pension and gratuity with immediate effect along with interest @ 18% p.a. on the arrears of pension and gratuity from 01/03/2023 till the date of realization. 10.3. Any other relief, which this Hon'ble Court deems fit and proper, may also be awarded to the Petitioner including the cost of the petition.” 2. Learned counsel for the petitioner submits that the petitioner was retired from the post of Nursing Sister of respondent department and after attaining the age of superannuation on 28.02.2022. She contended that just few days before the retirement of the petitioner, respondents have issued a letter of recovery dated 02.03.2023 (Annexure P/4) for recovery of a sum of Rs. 3 2,49,694/-. She submits that before passing of the impugned order of recovery of huge amount, no show-cause notice was issued to the petitioner. 3. She also contended that upon verification of the reason for recovery, it was informed to her that the wrong fixation pay was done in the year 2007. The reason which is orally assigned for