Nafr High Court
Case Details
1 2025:CGHC:8053 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3825 of 2024 1. Angar Moti Bariha W/o. Late Shri Keshawram Bariha Aged About 46 Years R/o. Village- Ghoghara, Ward No. 10, Block And Tahsil- Pithora, District- Mahasamund (C.G.) versus ... Petitioner 1. State Of Chhattisgarh Through- The Secretary, Department Of Panchayat And Rural Development, Mahanadi Bhawan, Mantralaya, Naya Raipur, District- Raipur (C.G.) 2. The Secretary, Finance. Mahanadi Bhawan, Mantralaya, Raipur (C.G.) 3. The Divisional Joint Director, Treasury Audit And Pension Accounts Raipur Division, District- Raipur (C.G.) 4. Divisional Joint Director, Treasury, Audit And Pension Division Raipur, District- Raipur (C.G.) 5. Chief Executive Officer, Janpad Panchayat Bagbahra, District- Mahasamund (C.G.) ... Respondent(s) For Petitioner
Legal Reasoning
Division Bench of this Court in case of Labha Ram Dhruv (Supra) and observed thus:- “9.In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) 6 has not been overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra” 9. From perusal of the above it is clear that recovery of amount from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service), is impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class- IV service. 10. In the case at hand, admittedly, husband of petitioner died on 8.8.2022 and the order of recovery has been issued on 18.6.2024. It is also not the case of the respondents that husband of petitioner had received excess payment by practicing fraud or by making misrepresentation. Thus, the petitioner cannot be compelled to refund the amount which has been paid by the respondents on their own without any misrepresentation or fraud on the part of deceased husband of petitioner. 11. So far as the undertaking submitted by husband of petitioner during course of his employment is concerned, the Division Bench of this High Court in WA No.264/2020 (supra), while considering the issue of undertaking has held that giving of such an undertaking is not a voluntary act and the recovery on that basis, therefore, cannot be sustained. The Division Bench in Para-14 has held thus:- 7 “14. While passing the order dated 22.09.2021 in State of Chhattisgarh & Others vs. Labha Ram Dhruv and the batch of cases, the Division Bench of this Court had observed as follows: “9.In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra. 10. Insofar as, the order passed by this Court in the matter of Pramila Mandavi, referred to above, is concerned, a plain reading of the order would reveal 8 that the facts as to whether the Revision of Pay Rules makes an enabling provision to obtain undertaking and thereafter entitles the employer to make recovery has not been considered. Similarly, the effect of judgment in the matter of Rafiq Masih (Supra) making recovery of an amount paid to Class-III or Class-IV employees has also not been dealt with. Therefore,the judgment passed in the Writ Appeals is distinguishable on the strength of law laid down by conjoint reading of the judgments rendered by the Hon’ble Supreme Court in the matters of Rafiq Masih and Jagdev Singh (Supra). 12. Considering the aforesaid view already taken and decided by the Division Bench of this Court and the fact that excess amount was not paid on account of any misrepresentation or fraud on the part of the husband of petitioner, I am fortified by the view taken by the Division Bench and the undertaking given by the deceased employee is of no avail to justify the recovery in the present case. 13. In light of above decision of Hon’ble Supreme Court and in the given facts and circumstances of case, in the considered opinion of this Court, the respondents cannot be permitted to make the recovery from retiral dues of husband of petitioner and being so, the recovery against the petitioner is not permissible and hence, the order impugned is bad in law. 14. Consequently, the writ petition is allowed. Impugned order dated 18.6.2024 so far as it relates to recovery of 9 Rs.3,24,357/- towards excess amount paid to deceased husband of petitioner is hereby quashed. Respondents are directed to refund the amount in question, if recovered, to the petitioner within a period of 90 days from the date of order, failing which the aforesaid amount shall carry interest @ 6% per annum till actual date of payment. 15. Certified copy as per rules. SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI nisha Sd/- -/-/--------/--/- (Amitendra Kishore Prasad) Judge
Arguments
: Mr. Mayank Chandrakar, Advocate For Respondents : Ms. Nupur Trivedi, Panel Lawyer. S.B.: Hon'ble Shri Amitendra Kishore Prasad, Judge Order On Board 14/2/2025 1. Grievance of petitioner in this writ petition is with regard to deduction of Rs.3,24,357/- from the retiral -cum-death benefits 2 of her deceased husband on the ground of excess payment made to him, during his service tenure. 2. Learned counsel for petitioner submits that petitioner’s husband died in harness while working as Assistant Internal Audit and Taxation Officer at the office of Janpad Panchayat Bagbahara, District Mahasamund. Respondent No.4 issued order dated 18.6.2024 for recovery of Rs.3,24,357/- allegedly paid in excess to petitioner’s husband during his service tenure. Petitioner’s husband was a Class-III employee and after his death, no recovery can be made from the retiral-cum- death benefits payable to him. During his lifetime, husband of the petitioner was never informed about any excess payment made to him, even before proposing recovery and showing amount to be recovered, no notice was issued to petitioner asking that the amount paid in excess has to be recovered. He submits that there was no misrepresentation or fraud practiced by the petitioner and the excess payment of salary was for reasons not attributed to the husband of the petitioner. In support of his contention, he placed reliance on the decision of Hon'ble Supreme Court in cases of State of Punjab & ors Vs. Rafiq Masih (White Washer) & ors, reported in (2015) 4 SCC 334 ; High Court of Punjab and Haryana and others v. Jagdev Singh reported in (2016) 14 SCC 267; and also the orders passed by Division Bench of this High Court in Writ Appeal No.264/2020 (State of Chhattisgarh v. Labha Ram 3 Dhruv) and Writ Appeal No.265/2020 (State of Chhattisgarh and others v. Roshan Lal Baghel) 3. Learned State Counsel submits that does not dispute the factual and legal submission made by learned counsel for the petitioner. She, however, submits that excess amount of salary paid to petitioner’s husband being loss to the public ex- chequer is to be recovered and the said recovery cannot be said to be bad because at the time of entering into service and thereafter from time to time, the petitioner’s husband had given undertakings that in case if any payment is made in excess, he will return the excess amount or the authorities will be at liberty to deduct from his retiral dues. Therefore, the petitioner is estopped from challenging the recovery order issued by the authority. Hence, the action taken by the respondents is just and proper. 4. Heard learned counsel for the parties and perused documents filed along with writ petition. 5. This Court vide order dated 10.7.2024 passed an interim order in favour of petitioner, staying the effect and operation of recovery notice dated 18.6.2024 (Annexure P-1) till the next date of hearing. 6. It is not in dispute that petitioner’s husband was a Class III cadre employee, he died in harness on 8.8.2022 and the impugned order of recovery is issued on 18.6.2024 i.e. after the death of husband of petitioner. Thus, the case of petitioner 4 falls in the cases of recovery from employees belonging to Class III and Class IV category. 7. In the case of Rafiq Masih (supra), the Apex Court considering the issue of recovery of amount has summarized the situations where in certain cases even the recovery from the employee by the employer would not be permissible in law. In Para-18 it was 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 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." 5 8. In case of Jagdev Singh (supra), Hon’ble Supreme Court though had considered the issue with regard to the undertaking, however, Para-10 (i) of the decision in case of Rafiq Masih(supra) has not been overruled or interfered. This aspect is also considered by the