Chattisgarh High Court
State Of Chhattisgarh vs Smt. Shobha Walia on 9 December, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 230 of 2021
1. State of Chhattisgarh Through The Secretary, Department of Forest,
Mantralaya Mahanadi Bhawan, Naya Raipur, District Raipur (C.G.)
2. The Principal Chief Conservator of Forest, Raipur Office of Principal
Chief Conservator of Forest, Aranya Bhawan, Sector-19, Naya Raipur,
District Raipur (C.G.)
3. The Additional Principal Chief Conservator of Forest (AD/NG), Office of
Principal Chief Conservator of Forest, Aranya Bhawan, Sector-19, Naya
Raipur, District Raipur (C.G.)
4. The Divisional Forest Officer, Karya Ayojana Vanmandal, Raipur (C.G.)
5. The Divisional Joint Director, Treasury Accounts & Pension, Raipur
(C.G.)
---- Appellants
Versus
Smt. Shobha Walia, W/o Late Ranjan Walia, Aged about 60 years, R/o
Flat No. 41, Kusha Bhau Thakre Apartment, New Rajendra Nagar, Group
No. 4, Raipur, District Raipur (C.G.)
---- Respondent
(Cause-title taken from Case Information System)
For Appellants : Mr. Sudeep Agrawal, Deputy Advocate General.
For Respondent : Smt. Shobha Walia, in person.
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Justice N.K. Chandravanshi, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
09.12.2021
Heard Mr. Sudeep Agrawal, learned Deputy Advocate General for the
appellants and Smt. Shobha Walia, respondent / writ petitioner in person.
2. This writ appeal is presented against an order dated 18.01.2021 passed
by the learned Single Judge in Writ Petition (S) No. 5513 of 2018, whereby, the
writ petition was allowed, setting aside the order dated 01.09.2017 issued by
the respondent No. 3 in the writ petition (appellant No. 3 in this appeal),
whereby, the recovery proceeding to recover a sum of Rs. 88,890/- in 30
installments was initiated as well as the order dated 12.07.2018, whereby, the
amount was sought to be recovered in 20 installments.
3. The writ petitioner had retired from service on 30.04.2020 while serving
as Assistant Grade-I. It is not in dispute that the petitioner was a Class-III
employee.
4. The recovery was sought to be effected on the ground of alleged excess
payment made to the petitioner due to erroneous pay fixation and such excess
payment was made from 01.01.2006 to 01.07.2017.
5. The learned Single Judge, taking note of the fact that the writ petitioner is
a Class-III employee and excess payment had been made for a period in
excess of 5 years before the order of recovery was issued and that there was
no misrepresentation or false statement made by the petitioner in getting the
excess payment, set aside the aforesaid order dated 07.07.2017 by relying on
the decision of the Hon'ble Supreme Court in the case of State of Punjab &
Others etc. vs. Rafiq Masih (White Washer) etc., reported in 2015 AIR SCW
501 = (2015) 4 SCC 334.
6. Mr. Agrawal submits that the writ petitioner had given an undertaking at
the time of fixation of pay to refund back any excess payment made on account
of erroneous fixation. Relying on the decision in the case of High Court of
Punjab and Haryana & Others vs. Jagdev Singh , reported in (2016) 14 SCC
267, it is submitted by him that as the writ petitioner had given an undertaking,
the case of Rafiq Masih (supra) would not be applicable. It is further submitted
that in the case of State of Chhattisgarh & Others vs. Parmila Mandavi, (Writ
Appeal No. 376 of 2019, which was decided on 02.12.2019), a Division Bench
of this Court had observed that as an undertaking was given by the employee,
the dicta in Jagdev Singh (supra) would apply and resultantly, had interfered
with the order of the learned Single Judge setting aside the order of recovery.
Accordingly, he submits that the order of the learned Single Judge is not
sustainable in law.
7. Learned counsel for the writ petitioner, on the other hand, has drawn the
attention of the Court to the judgment rendered in State of Chhattisgarh &
Others v. Labha Ram Dhruv and other connected cases (Writ Appeal No. 264
of 2020 and other connected writ appeals, decided on 22.09.2021). He
submits that the Division Bench, in the aforesaid cases, had taken note of the
judgment rendered in Pramila Mandavi (supra) and after noticing that recovery
was sought to be effected after excess payment was given about 12 years
back and as the petitioner therein was a Class-III employee, which aspects
were not considered in Pramila Mandavi (supra), dismissed the appeal,
declining to interfere with the order of learned Single Judge setting aside the
order of recovery.
8. We have considered the submissions of the learned counsel for the
parties and have perused the materials on record.
9. In Rafiq Masih (supra) at paragraphs-6 and 7, the Hon'ble Supreme
Court observed as follows :
"6. In view of the conclusions extracted hereinabove, it will be
our endeavour, to lay down the parameters of fact situations,
wherein employees, who are beneficiaries of wrongful
monetary gains at the hands of the employer, may not be
compelled to refund the same. In our considered view, the
instant benefit cannot extend to an employee merely on
account of the fact, that he was not an accessory to the
mistake committed by the employer; or merely because the
employee did not furnish any factually incorrect information,
on the basis whereof the employer committed the mistake of
paying the employee more than what was rightfully due to
him; or for that matter, merely because the excessive
payment was made to the employee, in absence of any fraud
or misrepresentation at the behest of the employee.
7. Having examined a number of judgments rendered by this
Court, we are of the view, that orders passed by the employer
seeking recovery of monetary benefits wrongly extended to
employees, can only be interfered with, in cases where such
recovery would result in a hardship of a nature, which would
far outweigh, the equitable balance of the employer's right to
recover. In other words, interference would be called for, only
in such cases where, it would be iniquitous to recover the
payment made. In order to ascertain the parameters of the
above consideration, and the test to be applied, reference
needs to be made to situations when this Court exempted
employees from such recovery, even in exercise of its
jurisdiction under Article 142 of the Constitution of India.
Repeated exercise of such power, "for doing complete justice
in any cause" would establish that the recovery being effected
was iniquitous, and therefore, arbitrary. And accordingly, the
interference at the hands of this Court."
10. It was further held in Rafiq Masih (supra) that an action of the State,
ordering a recovery from an employee, would be in order, so long as it is not
rendered iniquitous to the extent, that the action of recovery would be more unfair,
more wrongful, more improper, and more unwarranted, than the corresponding right
of the employer, to recover the amount. It is also held that recovery from employees
in lower rung of service, would result in extreme hardship to them as it is considered
that the employees in lower rung of service would spend their entire earnings in the
upkeep and welfare of their family, and if such excess payment is allowed to be
recovered from them, it would cause them far more hardship, than the reciprocal
gains to the employer.
11. After a detailed analysis of the case law on the subject, Hon'ble Supreme
Court in Rafiq Masih (supra) at paragraph-18 observed as follows :
"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."
12. In Jagdev Singh (supra), recovery was sought to be effected from a Civil
Judge, Junior Division, who was placed under suspension and who was
eventually compulsorily retired. The Hon'ble Supreme Court took note of the
fact that when the Civil Judge had opted for the revised pay scale, he furnished
an undertaking as required under the relevant Rules to the effect that he would
be liable to refund any excess payment made to him. In view of the above
position, the Hon'ble Supreme Court in Jagdev Singh (supra) held that
proposition (ii) of Rafiq Masih (supra) would not apply as the person to whom
the payment was made in the first instance was clearly placed on notice that
any payment found to have been made in excess would be required to be
refunded and as the officer had furnished an undertaking while opting for the
revised pay scale.
13. In Pramila Mandavi, the writ petitioner was a Class-III employee. It was
observed therein that in view of the subsequent decision in Jagdev Singh
(supra), it will be permissible for an employer to recover excess amount paid
on the basis of an undertaking. A perusal of the said judgment goes to show
that the conditions in which recovery was held to be impermissible in Rafiq
Masih (supra) was not dealt with.
14. While passing the order dated 22.09.2021 in Labha Ram Dhruv (supra)
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 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)"
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 under taking 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-C 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 years.
16. We are in respectful agreement with the above view.
17. In view of the decision in Labha Ram Dhruv (supra), Rafiq Masih (supra)
as well as in Jagdev Singh (supra), as the writ petitioner is a Class-III
employee and as the recovery is sought to be effected from the year 2008,
which is far in excess of a period of 5 years, we are of the considered opinion
that no interference is called for with regard to the order of the learned Single.
18. It is pointed out by the writ petitioner in person that total amount of
Rs.8,890/- had been recovered from her salary which is not disputed. The
aforesaid amount shall be paid back to the writ petitioner within a period of one
month from today. The writ petitioner has also submitted that her gratuity and
commutation of pension have not been paid till date.
19. On a query of the Court as to why gratuity, commutation of pension etc.
have not been paid to the petitioner, Mr. Agrawal submits that because of the
pendency of this appeal, the same have not been paid. Now that the appeal
has been disposed of, the appellants will make payment of all pensionary
benefits to the petitioner within a period of 45 days from today.
20. The appeal is dismissed with the aforesaid observations and directions.
21. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K. Chandravanshi)
Chief Justice Judge
Brijmohan
