Loku Ram Sahu vs State Of Chhattisgarh
2021 Latest Caselaw 1052 Chatt

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                                                                                NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR

                              WPS No. 3493 of 2021

      Loku Ram Sahu S/o Hazari Ram Sahu Aged About 57 Years Working As
      Head Master, Govt. Middle School Narbada, District- Balod,chhattisgarh

                                                                      ---- Petitioner

                                        Versus

   1. State Of Chhattisgarh Through The Secretary, Department Of School
      Education,     Mantralaya,       Mahanadi   Bhawan,   Atal    Nagar,   Raipur,
      Chhattisgarh

   2. Principal Secretary Department Of Finance, Mahanadi Bhawan, Atal
      Nagar, Raipur, Chhattisgarh

   3. District Education Officer District- Balod, Chhattisgarh

   4. Block Education Officer Gurur, District- Balod, Chhattisgarh

                                                                   ---- Respondents

      For Petitioner               :       Mr. Naveen Nirala, Advocate
      For State                    :       Ms. Abhyunnati Singh, PL


                       Hon'ble Shri Justice P. Sam Koshy
                                Order on Board

12/07/2021

1. Aggrieved of the order dated 14.06.2021, the present writ petition has

been filed. Vide the impugned order, respondents have called upon the

petitioner to deposit the amount of Rs. 48,096 or give consent for

deduction of the said amount from the salary payable to the petitioner. The

alleged recovery of Rs. 48096/- was on account of excess payment made

allegedly for the period between February, 2007 to December, 2015.

2. According to the petitioner he has been working on the post of Head

Master, Middle School which is a Class-III post and alleged excess

payment being made more than 13-14 years back and respondents could

have initiated recovery against the petitioner. It is also the contention of the

petitioner that before issuance of the impugned order the petitioner also

was not granted opportunity of hearing by which he could have defended

the payment that he has received.

3. Counsel for the petitioner submits that the said order of recovery is

apparently bad in law and impermissible in the light of the judgment of the

Supreme Court in the case of State of Punjab and others etc. vs. Rafiq

Masih (White Washer) etc. reported in 2015 AIR SCW 501. He submits

that the petitioner is working as a Lecturer under the respondents and that

the petitioner has been allegedly granted some wrong fixation w.e.f.

February, 2007 up till December, 2015. According to the petitioner, it is

now after more than 6 years from the date of the first error that had been

crept, the respondents have initiated the recovery proceedings. He

submits that the situation which has come under the judgment of the

Supreme Court in the case of Rafiq Masih (supra) holding recovery to be

impermissible includes the situation where the recovery has been ordered

to be made for an excess payment made more than 6 years prior to the

date of recovery. It is further contended by the petitioner that in any case it

is not the case of the respondents that the petitioner has been paid the

excess amount on account of any misrepresentation or fraud by the

petitioner.

4. This factual position which has been stated by the petitioner is not

disputed by the State counsel. However, he submits that since the

petitioner is not a retired employee, the recovery order would be

permissible as it is not a case where the recovery has been initiated after

retirement. He further submits that the last excess payment that was paid

to the petitioner was on December, 2015 it is well within the 6 years period

so as to attract the judgment of the Supreme Court in the case of

RafiqMasih (supra).

5. Having considered the contentions put forth on either side and on perusal

of the record admittedly the petitioner has been paid some excess amount

from February, 2007 to December, 2015. It is also not in dispute that the

said excess payment was made on account of some error on the part of

the respondents. From 2007 till the date of recovery it would reveal that

the excess payment was first made to the petitioner much before 6 years

of time from the date of the order of recovery. Undisputedly, before

issuance of the impugned order no opportunity of hearing was also

granted to the petitioner.

6. Given the said facts, this Court is of the opinion that applying the judgment

of the Supreme Court in the case of Rafiq Masih (supra), the impugned

order of recovery is bad in law and the same deserves to be and is

accordingly set aside.

7. The writ petition accordingly stands allowed.

Sd/-

(P. Sam Koshy) Judge Rohit