KUMAR v. State Of Chhattisgarh

Judgment

1. With consent of the learned counsel for the parties, heard the matter finally at motion stage.

2. This writ petition has been preferred under Article 226 of the Constitution of India for quashing the recovery order of Rs. 1,37,530/-dated 19-9-2019 passed by the respondent No. 4/Superintendent of Police, Department of Crime Investigation, Police Head Quarter, Raipur (CG) (Annexure P-2) and also for seeking direction to the respondent authorities to refund the deducted amount to the petitioner, which has been recovered from the petitioner.

Facts of the case in nutshell, as projected in the writ petition, are that, the petitioner is posted on the post of Inspector in Crime Investigation Department, Police Headquarter, Raipur. On 05.11.2018, the respondent no. 3 Deupty Inspector General of Police, Department of Crime Investigation issued an order dated 5-11-2018 (Annexure P-1) and amended the pay fixation of petitioner, because the respondent authority did fixation of pay from year 2006 to year 2018 by way of erroneous fixation. Thereafter, the Respondent No.4 Superintendent of Police, Department of Crime Investigation, District Raipur issued a recovery order on 19.09.2019 (Annexure P-2) and started monthly recovery from the salary of the petitioner, against which, petitioner has filed instant petition.

4. Learned counsel for the petitioner submits that, vide order dated 19-9-2019 (Annexure P-2), recovery order of Rs. 1,37,530/- has been issued against him without providing him any opportunity of hearing, stating inter alia that, there was wrong fixation of his pay scale. It is further submitted that, although petitioner has given undertaking, but there is no provision seeking undertaking in Chhattisgarh Pay Revision Rules, 2009 and Chhattisgarh Pay Revision Rules, 2017, therefore, only because undertaking was given by the petitioner, such recovery is not permissible. In this regard, he relied on the order passed by the Division Bench of this Court in WA No. 264/2020 (State of Chhattisgarh and ors Vs. Labha Ram Dhruv) and other connected matters dated 22-9-2021 and order passed in WA No. 265/2020 (State of Chhattisgarh and ors. Vs. Roshan Lal Baghel) dated 9-12-2021.

5. The respondents/State have filed reply. Learned State counsel, while referring to its reply, would submit that, after implementation of 6th pay scale, pay scale of petitioner and other employees was revised. While making such exercise, undertaking Annexure R-1 was submitted by the petitioner, in which, he had admitted that if any excess payment is made, then, it can be recoverable from him. Since undertaking was given by the petitioner, therefore, such recovery can be made, as ultimately the amount of excess payment made to the petitioner, is the money of taxpayers. It is further submitted that, at the time of revision of pay scale, wrong fixation of pay of the petitioner was made, which was noticed upon verification of service book of the petitioner and thereafter vide order Annexure P-2, recovery order was made by respondent No. 4/Superintendent of Police. He relied in the case of High Court of Punjab and Haryana & ors. Vs. Jagdev Singh [(2016) 14 SCC 267].

6. Heard learned counsel for the parties and perused the material available on record.

7. In the instant case, the petitioner is still working as Inspector in Crime Investigation Department, Police Headquarter, Raipur. He has filed this petition against the order dated 19-9-2019 (Annexure P-2) passed by the respondent no. 4 by which, it has amended the pay scale of petitioner, on the ground that earlier pay fixation of petitioner was erroneously done. The case of respondents/State is that the petitioner had submitted undertaking (Annexure R-1) that if any excess payment is made to him, then it may be recovered from him. Therefore, the respondents are rightly recovering the excess amount paid to petitioner due to erroneous fixation.

8. While dealing with matter of recovery, in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand [(2012) 8 SCC 417], the Hon'ble Supreme Court held in para 11 to 15 as follows:— “11. We may in this respect refer to the judgment of a two- Judge Bench of this Court in Col. B.J. Akkara case (2006) 11 SCC 709 where this Court after referring to Shyam Babu Verma case (1994) 2 SCC 521, Sahib Ram case [1995 Supp (1) SCC 18] and a few other decisions held as follows : “28. Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.”

12. Later, a three-Judge Bench in Syed Abdul Qadir case [(2009) 3 SCC 475], after referring to Shyam Babu Verma