Sureshpur, Tehsil-Sitapur, District- Surguja, Chhattisgarh. vs Department, DKS Bhawan, Raipur, Chhattisgarh.

For Petitioner : Mr. Rahul Mishra, Advocate For State/Respondents : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

24.06.2024

1. The petitioner has filed this petition seeking the following relief(s):- “10.1. That, the Hon’ble Court may kindly be pleased to quash the endorsement dated 13.07.2011 made in the service book of the petitioner by the respondent No.3 and consequently the recovery proceedings be quashed and amount recovered from the petitioner may be directed to be refunded to the petitioner with interest.

10.2. That, this Hon’ble Court may further be pleased to grant any other relief which the Hon’ble Court deems fit and proper as per the nature of the case.

10.3. Costs of the petition may also be awarded to the petitioner.”

2. Mr. Rahul Mishra, learned counsel appearing for the petitioner would submit that at the relevant time, the petitioner was posted on the post of ‘Peon’ in the -2- office of District Education Officer and his salary was fixed. Later on, his salary was revised on 24.01.2000, at the same time; the wrong fixation was done by the Department which continued till 30.06.2011. On 13.07.2011, the District Education Officer made an endorsement of recovery in the Service Book of the petitioner and a separate order was issued by the State Authorities on 14.03.2011 vide Annexure R/1.

3. Mr. Mishra would further submit that though there is an endorsement with regard to the recovery in the service book, no opportunity of hearing was afforded to the petitioner, who is a Class-IV employee and it is very difficult for him to make payment of the aforesaid amount. He would also submit that there is no misrepresentation on the part of the petitioner; the mistake was committed by the Department by wrongly fixing the pay scale of the petitioner; thus, the impugned recovery order may be quashed. In support of his submissions, 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.

4. On the other hand, learned State counsel would submit that the salary of the petitioner was wrongly fixed on the higher pay scale and when this fact was brought to the notice of the authority concerned, a suitable order was passed for recovery on 14.07.2011 by the District Education officer, and the same has not been challenged by the petitioner. Though the amount of recovery has not been mentioned in the service book of the petitioner, the order of recovery is valid and the excess amount paid to the petitioner can be recovered; thus, the instant petition deserves to be dismissed. 1 ?. (2015) 4 SCC 334 2 ?. 2022 LiveLaw (SC) 438: 2022 AIR SC 2153 -3-

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

6. In the matter of Rafiq Masih (supra) the Hon’ble Supreme Court 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 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. 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).

8. From the documents available on the record, it transpires that the petitioner -4- was initially appointed as ‘Peon’ for a period of 89 days, thereafter, vide order dated 24.01.2000 (Annexure P/4) he was appointed against the regular post of Peon. Later on, due to some mistake, higher pay was granted to the petitioner which continued till 30.06.2011. For the first time, the District Education Officer made an endorsement in the service book of the petitioner with regard to the recovery of the excess payment of the salary and a separate order was also issued, though it has not been challenged by the petitioner, at the same time, sight cannot be lost of the principle of law rendered by the Hon’ble Supreme Court in Rafiq Masih (supra), where in certain contingencies recovery by the employer would be impermissible in law.

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 10-11 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.

10.Taking into consideration the facts of the present case and the law laid down by the Hon’ble Supreme Court in Rafiq Masih (supra), in the opinion of this Court, the orders of recovery issued by the District Education Officer dated

13.07.2011 and 14.07.2011, though not challenged by the petitioner, are not sustainable in the eyes of law, accordingly, the same are liable to be and are hereby quashed.

11.The authorities concerned shall refund the amount, if any, recovered from the -5- 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.

12. Accordingly, the instant writ petition is allowed. No order as to cost(s). (Rakesh Mohan Pandey) Judge Sd/- Nadim