Abhay Kumar Tripathi vs State Of Chhattisgarh
2021 Latest Caselaw 3431 Chatt

Citation : 2021 Latest Caselaw 3431 Chatt
Judgement Date : 1 December, 2021

Chattisgarh High Court

Abhay Kumar Tripathi vs State Of Chhattisgarh on 1 December, 2021

                                                                      NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                          WPS No. 6530 of 2021
      Abhay Kumar Tripathi S/o J. N. Tripathi Aged About 63 Years Retd.
      Patwari, R/o H.No. 55, Kalindi Kunj Colony, Kabir Chowk, Jute Mill
      Road, Raigarh, District Raigarh (Chhattisgarh)       ---- Petitioner
                                  Versus
   1. State Of Chhattisgarh Through The Secretary Revenue Department,
      Mahanadi Bhawan Mantralaya, Atal Nagar, New Raipur, Distt. Raipur
      (Chhattisgarh)
   2. The Joint Director Treasury Account And Pension, Bilaspur Division
   3. Sub-Divisional    Officer   (Revenue)     Raigarh,   Distt.-   Raigarh
      (Chhattisgarh)
   4. The District Treasury Officer Raigarh, Distt. Raigarh (Chhattisgarh)
   5. The Tahsildar Pussore Tahsil Pussore, Distt. Raigarh (Chhattisgarh)
                                                   ---- Respondents

_______________________________________________________________ For Petitioner: : Shri Dhani Ram Patel, Adv.

For the State/Respondents. : Shri Lalit Jangde, Dy. G.A.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J Order On Board

01.12.2021

1. The challenge in the present writ petition is to the order of recovery

initiated by the authorities vide order dated 23.10.2021 (Annexure

P/1), whereby the respondents have ordered for recovering an

amount of Rs.1,64,151/- from the retiral dues payable to the

petitioner.

2. The facts of the case are that the petitioner was working as a Patwari

under the respondents and he stood retired from service w.e.f.

30.06.2019. Till the date of retirement there was no order of recovery

issued by the respondents. After more than two years from the date

of retirement, the respondents have now issued the impugned order

Annexure P/1 ordering for recovery of an amount of Rs.1,64,151/- from the retiral dues payable to the petitioner. The said alleged

recovery is said to be on the basis of some erroneous fixation of pay

made to the petitioner w.e.f. 01.04.2017 to 03.01.2019. According to

the petitioner, he is a retired person and that there was no

misrepresentation or fraud played by the petitioner in receiving the

alleged excess payment. That the same has been paid to the

petitioner erroneously on account of the fault on the part of the

officers in the Department, and for which the petitioner cannot be

held liable for recovery.

3. According to the petitioner, under the bonafide belief of having

received the same justifiedly, the petitioner has consumed the same,

and now the respondents would not be permitted to recover the

same. According to the petitioner, the authorities could have carried

out the rectification part, but they could not have initiated any

recovery. The further contention of the petitioner is that the impugned

order also is bad in law for the reason that the alleged excess

payment made to the petitioner is of a period long back and which

makes it impermissible under law for recovery after a considerable

period of time in terms of the judgment of the Hon'ble Supreme

Court.

4. The State counsel on the other hand submits that the recovery is only

in respect of the excess payment made to the petitioner on account

of wrong fixation of pay provided to him, which the petitioner was

otherwise not legally entitled for and therefore the respondents had

all the rights to recover the same.

5. At this juncture, it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of "State of Punjab and others

etc. vs. Rafiq Masih (White Washer) etc." reported in 2015 AIR

SCW 501. The Hon'ble Supreme Court while deciding the said matter

has laid down certain situations under which the recovery is totally

impermissible under law. The situations as envisaged in the said

judgment are as under :

"(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."

6. If we consider the situations, under which the Hon'ble Supreme Court

has held recoveries to be impermissible under law and compare the

facts of the present case, it would clearly reflect that the case of the

petitioner would squarely fall within the situations as envisaged in the

judgment of the Hon'ble Supreme Court in the case of "Rafiq Masih"

(supra).

7. Given the aforesaid facts and circumstances of the case, the

impugned order of recovery (Annexure P/1) dated 23.10.2021

ordering for recovery of an amount of Rs.1,64,151/- is erroneous, bad in law and impermissible under law and the same deserves to be and

is accordingly set-aside/quashed.

8. The respondents are directed to settle the retiral dues of the

petitioner without initiating any recovery. It is made clear that the