Chattisgarh High Court
Tapeshwar Ram vs State Of Chhattisgarh on 2 August, 2021
-1-
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (S) No. 3971 of 2021
1. Tapeshwar Ram S/o Tilakram Aged About 63 Years Retd. Headmaster, R/o
Dangbuda (Majhapara) , Post Jamkani, Tahsil Mainpat, District Surguja
Chhattisgarh.
---Petitioner(s)
Versus
1. State of Chhattisgarh Through The Secretary, Department of Education,
Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur Chhattisgarh.
2. District Education Officer Surguja , District Surguja Chhattisgarh.
3. Block Education Officer Mainpat, District Surguja Chhattisgarh.
4. Joint Director Treasury, Account And Pension, Ambikapur, District Surguja
Chhattisgarh.
---Respondents
For Petitioner : Shri Harish Khuntiya, Advocate.
For State : Ms. Abhyunnati Singh, Panel Lawyer.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
02.08.2021 .
1. Challenge in the present writ petition is to the impugned order dated
22.06.2021. By the said impugned order, the respondents have initiated a
recovery proceedings against the petitioner for an amount of Rs.185129/-
from the retiral dues payable to the petitioner. The alleged order of
recovery is in respect of certain alleged excess payment made to the
petitioner on account of erroneous fixation paid during the period from
12.05.1999 to 30.06.2020.
2. The petitioner in the instant case has retired from the post of Headmaster,
Middle School w.e.f. 30.06.2020. Though the petitioner has retired from
service w.e.f. 30.06.2020, the respondents now after a period of about one
year have issued an order of recovery for an amount of Rs.185129/- from
the retiral dues payable to the petitioner.
3. The undisputed factual matrix from the pleadings as is evident is that the
petitioner was working on Class-III post at the time of his retirement. The
petitioner stood retired on 30.06.2020 and the alleged excess payment
has been made by virtue to erroneous fixation granted for the first time on
12.05.1999 i.e. about 21 years earlier. The other undisputed facts is that
the petitioner has not been blamed for having received the alleged excess
payment on account of any act on his part for getting the same. It appears
that the alleged excess payment, if any, has been paid on account of
some error on the part of the respondents and the entire amount has been
recovered from the retiral dues payable to the petitioner.
4. According to the petitioner, the case of the petitioner falls within the ambit
of situations revealed in the judgment of Supreme Court in case of State of
Punjab Vs. Rafiq Masih, 2015 (4)SCC 334, wherein such recoveries have
been held to be impermissible under the law.
5. The State counsel on the other hand submits that upon the petitioner
retiring from service on 30.06.2020 in the course of settlement of dues it
was detected that the petitioner has been given wrong fixation of pay from
12.05.1999 onwards and this excess payment comes to Rs.185129/-
which now while settling the retiral dues has been adjusted by the
authorities. According to the State counsel, since the petitioner has
received something which he is not legally entitled for, the respondents
are entitled for recovering the excess amount so paid from the dues
payable to the petitioner.
6. Given the facts and circumstances of the case, it would be relevant at this
juncture to take note of the judgment of the Supreme Court in case of
Rafiq Masih (Supra) wherein in paragraph 18 the Supreme Court has
clearly held certain situations under which it has been specifically held that
recoveries would become impermissible. For ready reference the
operative part of the said judgment is reproduced herein under:
"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."
7. A plain perusal of the aforesaid judgment of the Supreme Court if we
consider the factual matrix of the present case, it would reveal that most of
the situations envisaged in the said judgment which makes recovery
impermissible is also available in the case of the petitioner in hand. The
petitioner indisputably was employed as Class-III at the time of his
retirement. He retired about one year before the order of recovery was
passed. The alleged excess payment was made about 21 years before the
date of retirement of the petitioner. The petitioner is not at fault for the
alleged receipt of excess payment.
8. Given the aforesaid facts and circumstances of the case, the impugned
order to that extent is not sustainable, and the same deserves to be and is
hereby set aside/quashed. The respondents are directed to immediately
within an outer limit of 90 days refund the entire amount recovered or
adjusted from his retiral dues i.e. an amount of Rs.185129/- as per
Annexure P/1 dated 22.06.2021.
9. The writ petition accordingly stands allowed and disposed of in terms of
the observations made in the preceding paragraphs.
Sd/-
(P. Sam Koshy)
Judge
inder
