High Court of Chhattisgarh
Case Details
1 Digitally signed by GOPAL SINGH Date: 2025.03.09 17:20:42 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR WPS No. 4990 of 2024 1 - Prakash Narayan Pandey S/o Late Shri Dwarika Prasad Pandey Aged About 64 Years R/o Pratistha Height, Flat No. 101, Rambhata, Near Church, P.S. - City Kotwali, Tahsil And Distt. Raigarh (C.G.) ... Petitioner versus 1 - State of Chhattisgarh Through its Secretary, Department of Home/police, Mahanadi Bhawan, Mantralay, Police Station And Post - Rakhi, Atal Nagar, Nawa Raipur, District - Raipur (C.G.) 2 - Inspector General of Police (IGP) O/o Inspector General of Police, Near Nehru Chowk, Bilaspur Range, Distt. Bilaspur (C.G.) 3 - Divisional Joint Director O/o Divisional Joint Director, Treasury - Accounts and Pension, Bilaspur Division, Distt. Bilaspur (C.G.) 4 - Superintendent of Police (SP) O/o Superintendent of Police, Raigarh, Distt. Raigarh (C.G.) (Cause title is taken from Case Information System) ... Respondents For Petitioner :
Legal Reasoning
Shri Abhishek Pandey and Ms. Swati Rani Saraf, Advocates For State/Respondents : Ms. Nupur Trivedi, Panel Lawyer 2 Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 25/02/2025 1. According to the petitioner, after his retirement, the Respondent authority withheld the recovery amount i.e. Rs. 3,91,457/- from gratuity amount of the petitioner and released all retiral dues of the petitioner but also withheld the Sewa Samman Nidhi and arrears of 7th Pay Scale of petitioner without assigning any reason, though the recovery amount have been recovered from the gratuity of petitioner then petitioner is entitled for all amount of other retiral dues. According to various judgments of this Court and the Hon’ble Supreme Court, recovery from Class-III employees is not permissible though the petitioner was working on the post of A.S.I. in District Raigarh in Police Department which is Class-III post and also recovery from the employees when the excess payment has been made for a period in excess of 5 years, before the order of recovery is issued and recovery from retired employee or employees who are due to retire within one year of the order of recovery is not permissible in the case of petitioner, the Respondent authority paid excess payment to the petitioner before the order of recovery is issued, according to various judgments of this Court and the Hon’ble Supreme Court, recovery from employees who are due to retire within one year or recovery from retired employees is not permissible. In the case of petitioner, the Respondent No. 3 Divisional Joint Director, Treasury-Accounts and Pension, Bilaspur issued recovery order against the Petitioner after 6 days from the date of retirement which is not permissible and liable to be quashed/set aside. Hence, this petition. 2. By this petition, the petitioner seeks the following reliefs: 3 “(i) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case of the petitioner before this Hon'ble Court for its kind perusal. (ii) That this Hon'ble Court may kindly be pleased to set aside/quash the impugned recovery order of petitioner dated 06.06.2023 issued by Respondent No. 3 Divisional Joint Director, Treasury-Account and Pension, Bilaspur (Annexure P/2). (iii) That, the Hon'ble Court may kindly be pleased to direct the Respondent authorities to release the Sewa Samman Nidhi and arrears of 7th Pay Scale to the petitioner. (iv) That, the Hon'ble High Court may kindly be pleased to direct the Respondent authorities to refund the whole deducted amount to the petitioner i.e. Rs.3,91,457/- along with the interest of 10% per annum which has been deducted due to the impugned recovery order dated 06.06.2023 issued by Respondent No. 3 Divisional Joint Director, Treasury-Account and Pension, Bilaspur. (v) That this Hon'ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and agony, harassment and hardships suffered by him as also cost of the litigation.” 3. In this petition, issue arises for determination is whether recovery of excess amount of payment made to a Class-III employee can be recovered by the respondent authorities as they have given consent in any document relating to recovery. The present writ petition has been filed by the Assistant Sub Inspector holding Class-III post in the Police Department, challenging the order for recovery of the amount paid in excess to him after retirement. This 4 petition is for quashing the subject recovery against the petitioner on the ground that he is discharging the duties as Class-III employee and excess payment has been made and the same was made on account of error on the part of the respondent – State Government without there being any misrepresentation or false statement on the part of the petitioner. 4. The petitioner retired from the post of Assistant Sub Inspector on 31.5.2023. After retirement, on 6.6.2023, respondent No.3 Divisional Joint Director O/o Divisional Joint Director, Treasury - Accounts and Pension, Bilaspur Division issued impugned order stating that petitioner has been paid extra money as salary and hence he would have to face deduction in final payment or will have to pay difference amount in cash. Thereafter, an amount of Rs.3,91,457/-, from Final Gratuity payment, and remaining amount to be paid to petitioner. As forcefully deduction has been done without giving any opportunity of hearing petitioner's prayer and as extra payment done years ago was not petitioner's fault making such deduction arbitrary, illegal and erroneous and prayed to refund Rs.3,91,457/- along with interest. 5. Return on behalf of the respondents have been filed and it is submitted that after due verification and preparation of his pension and other retiral dues. On examination of the service book of the petitioner, the respondent authorities raised certain objections regarding the fixation of salary on some occasions and the same was duly informed to the petitioner’s department. It is also submitted that a consent letter for recovery was also duly signed by the petitioner wherein it has been specifically mentioned that, if excess payment is made or if there is any dues then the same may be recovered from the gratuity amount of the petitioner. 6. Learned counsel appearing for the petitioner submits that the impugned 5
Decision
recovery order is illegal and bad in law. The impugned order is issued after retirement of the petitioner and the excess amount paid during the service period of the petitioner cannot be recovered from the retiral dues including gratuity of the petitioner. Petitioner was not given any opportunity of hearing before issuing the impugned order. The petitioner was a class III employee hence no recovery can be deducted from his retiral dues. He placed reliance on the judgment of the Hon’ble Supreme Court in case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334. 7. On the other hand, learned counsel appearing for the State/respondents vehemently opposes the submissions of learned counsel for the petitioner and submits that the petitioner had signed undertaking that in the event any excess payment is found, the same may be recovered from his gratuity. Therefore, he is bound by his undertaking. Excess amount paid to the petitioner would amount to undue enrichment. Hence, the impugned order does not suffer from any illegality and does not require any interference by this Court. She placed reliance on a judgment of the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others, reported in (2012) 8 SCC 417. 8. I have heard learned counsel appearing for the parties and perused the material available with due care. 9. From perusal of the material available, it is evident that the petitioner retired from service after attaining the age of superannuation. At this juncture, it would be relevant to notice the judgment of the Hon’ble Supreme Court in the 6 case of Rafiq Masih (supra), wherein the Hon’ble Supreme Court has clearly held certain situations under which recoveries would become impermissible. Paragraph 18 of the said judgment is reproduced hereinunder: “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.” 10. The impugned recovery order was passed after the retirement of the petitioner for recovery of excess amount paid during this period. Placing reliance upon the case of Rafiq Masih (supra) the Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala and others, reported in 2022 SCC 7 OnLine 536 has quashed the recovery of excess amount paid to the petitioner and observed in paragraph 9 as under: “9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or 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, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” 11. So far as the undertaking given by the employee/petitioner is concerned, a Division Bench of this Court has consider this aspect in Writ Appeal No.265 of 2020 in the matter of State of Chhattisgarh and others vs. Roshan Lal decided on 9.12.2021 and held in para 14 and 15 as under: “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 8 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 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). 9 15. A perusal of the above paragraphs would go to show that the Division Bench has recorded that in Pramila Mandavi (supra), this Court did not consider as to whether the Revision of Pay Rules, 2009 enables the authorities to obtain an undertaking, permitting the employer to make recovery and also did not advert to the effect of judgment in the case of Rafiq Masih (supra) laying down that no recovery shall be effected from employees belonging to Class-III and Class-IV service (or Group-C and Group-D service). It was also noted that even if it is held that an undertaking would operate in absence of an enabling provision under the Rules to take an undertaking whereby the employee undertakes to refund back any excess payment, no recovery can be effected from the employees belonging to Class-III and Class-IV service (or Group- and Group- D service) in terms of Rafiq Masih (supra) and also in case the amount sought to be recovered had been continued to be paid for a period in excess of 5 year.” 12. The petitioner has also referred to the order dated 21.1.2025 passed by a Division Bench of this Court in Writ Appeal No.51 of 2025 in the matter of Chhattisgarh State Dairy Co-operative Federation Ltd. vs. Radhe Lal Sinha and others and in the said matter, Hon’ble Division Bench settled the law that recovery from Class-III employee and also the recovery from retired employee is impermissible. 13. Considering the aforesaid view already taken and decided by the Division Bench of this Court, I am fortified by the view taken by the Division Bench and the undertaking given by the employee/petitioner would of no consequence. 14. The petitioner is a Class-III employee. Excess amount was not paid on account of any misrepresentation or fraud of the petitioner. The impugned recovery order was issued after his retirement. Hence, in the light of above authoritative 10 pronouncement of the Hon'ble Supreme Court coupled with the fact of this Writ Petition, this Court has no hesitation to hold that the same deserves to be allowed. 15. Therefore, the impugned recovery order passed in the instant case is quashed and set aside. If any amount is recovered pursuant to the impugned recovery order, the same shall be refunded to the petitioner within a period of 90 days from the date of receipt of a copy of this order. The admissible retiral dues which has not been paid to the petitioner, if any, shall also be released by the respondents within the aforesaid period of 90 days. 16. With the aforesaid observations and directions, the writ petition is allowed. 17. No order as to costs. Gopal Singh Sd/- (Amitendra Kishore Prasad) JUDGE