Bedan Kumar Sahu v. State Of Chhattisgarh

Mr. Sumit Shrivastava, Advocate Ms. Mukta Tripathi, Panel Lawyer (Hon'ble Shri Parth Prateem Sahu, Judge) 16/01/2025 Order on Board

Petitioner has filed this writ petition seeking following relief : “10.1 That this Hon’ble Court may kindly be pleased to issue an appropriate writ by quashing the impugned order dated 24.10.2019 (Annexure P-1) passed by respondent No. 4 which relates to recovery of Rs. 37,727/- from petitioner monthly salary.

10.2 That this Hon’ble Court may kindly be directed the respondents to refund the amount which they have recovered illegally.

10.3 Any other relief, which this Hon’ble Court may deem fit and proper, may also be passed in favour of the petitioner together with cost of the petition.”

Learned counsel for petitioner submits that petitioner is holding post of Forest 2 Guard. He was appointed on 06.09.2007, salary has been fixed as Rs. 5680/- with grade pay of Rs. 1900/- and he was being paid salary of Rs. 7810/- per month. In the year 2017, petitioner was transferred from Gariyaband Raipur Division to Jagdalpur Division. Petitioner was served with an order on

24.10.2018 mentioning therein that his pay has been erroneously fixed and pursuant thereto petitioner was paid excess salary to the tune of Rs. 37,727/- and further it also mentioned that recovery be made @ of Rs. 2,000/- per month. It is contention of learned counsel for petitioner that in the order, there is no mention that wrong fixation of pay in the year 2008 is based on any misrepresentation or fraud committed by petitioner upon employer. Wrong fixation of pay, if any, may be due to error on the part of respondents, hence, recovery of the excess payment cannot be made from petitioner, more so when petitioner is a Class - IV employee. He contended that till date, some part of amount has already been recovered. He submits that as held in the case of State of Punjab and Others etc. vs. Rafiq Masih (White Washer) etc., recovery from Class - IV employee is not permissible.

On the other hand, learned State counsel opposes the submission made by learned counsel for petitioner and would submit that wrong fixation of pay is made for the petitioner which detected only when petitioner was transferred from Gariyaband Raipur Division to Jagdalpur Division and accordingly, order was passed. She also contended that petitioner, at the time of fixation of pay has given an undertaking and therefore, there is no error in passing of order Annexure-P/1 and order of recovery of excess salary already paid to petitioner. In support of her contention regarding undertaking, she referred to Annexure-R/2.

I have heard learned counsel for the respective parties and also perused documents annexed along with the record as also the reply.

It is not in dispute that wrong fixation of pay of petitioner was of the year 3

2008. Order of recovery and re-fixation of pay was only on 24.10.2018. Annexure-R/2 which is relied upon by learned State counsel to submit that undertaking has been given by petitioner, perusal of it does not reflect that undertaking is of the year 2008 but under the heading, it is mentioned as Chhattisgarh Pay Revision Rules, 2017 and further, some date is mentioned of the year 2016, hence, on the face of document which is relied upon by learned State counsel to submit that petitioner has given an undertaking cannot be said to be the undertaking given at the time of fixation of pay in the year 2008. Learned State counsel has not disputed submission of learned counsel for petitioner that petitioner is a Class-IV employee.

Hon'ble Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 while considering the recovery of excess payment made to the employees 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. 4 (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.

In the above judgment, Hon'ble Supreme Court has held that recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) is impermissible in law.

Relying upon the decision in the case of Rafiq Masih (supra), Hon'ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors., reported in (2022) SCC OnLine SC 536 has further held that recovery from the employees after long time to be unjustified.

Considering aforementioned facts fo the case, submission made by learned counsel for the parties as also decisions of Hon’ble Supreme Court, order of recovery of excess payment made from petitioner who is a Class – IV employee is not sustainable. Accordingly, order Annexure-P/1, so far as it relates to recovery of excess payment from petitioner is set aside.

Respondents are directed to refund the amount already recovered from petitioner and to deposit the same in the account of petitioner within a period of three months from the date of receipt of this order, failing which, amount which is required to be refunded to petitioner shall carry interest at the rate 9% per annum

The writ petition is accordingly allowed in above terms. Sd/- (Parth Prateem Sahu) JUDGE Shayna Digitally signed SHAYNA KADRI