Geeta Yadav vs State Of Chhattisgarh
2021 Latest Caselaw 3203 Chatt

                                        1

                                                                          NAFR
                HIGH COURT OF CHHATTISGARH, BILASPUR
                                WPS No. 5132 of 2021
      Geeta Yadav W/o Late Satish Kumar Yadu Aged About 62 Years R/o
       Near Sai Mandir, Bhagat Singh Chowk, Tikrapara, Raipur Chhattisgarh,
       District : Raipur, Chhattisgarh
                                                                  ---- Petitioner
                                     Versus
     1. State Of Chhattisgarh Through The Secretary, Department Of Health
        And Family Welfare, Mantralaya, Mahanadi Bhavan, Atal Nagar, Raipur,
        Chhattisgarh., District : Raipur, Chhattisgarh
     2. Principal Secretary Department Of Finance, Mahanadi Bhavan, Atal
        Nagar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh
     3. Office Joint Director And Superintendent, Dr. Bhim Rao Ambedkar
        Memorial Hospital Raipur Chhattisgarh, District : Raipur, Chhattisgarh
     4. The Joint Director, Treasury Accounts And Pension, Raipur
        Chhattisgarh, District : Raipur, Chhattisgarh
     5. Drawing And Disbursement Officer, Local Office, Raipur Chhattisgarh,
        District : Raipur, Chhattisgarh
                                                              ---- Respondents

______________________________________________________________ For Petitioner: Shri A. K. Kundu, Advocate For State/Respondents: Kunal Das, Panel Lawyer

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

17/11/2021

1. Challenge in the present writ petition is to the order of recovery dated

29-07-2021 passed by the respondent No.3.

2. The facts of the case is that, the petitioner was working as Assistant

Nursing Superintendent under the respondent No.3 and who retired from the

service w.e.f.30-04-2021. The respondent, subsequent to her retirement

issued the impugned order on 29-07-2021, whereby the respondents have

ordered for recovery of an amount of Rs.6,24,574/- which is alleged to have

been paid in excess to the petitioner before her retirement. The said excess

payment has been made because of the erroneous fixation of pay given to the

petitioner.

3. The contention of the petitioner is that, firstly the order of recovery is

bad in law as the same has been issued after retirement, and therefore, it is

impermissible. He further submits that the petitioner at no point of time is held

responsible for the alleged excess payment. The alleged excess payment was

first time paid to the petitioner roughly more than 30 years before her

retirement and before the order of recovery was issued. The said order of

recovery is in violation of the judgment of Supreme Court in the case of State

of Punjab Vs. Rafiq Masih, 2015 (4) SCC 334.

4. State counsel, however, opposing the petition submits that it is a case

where admittedly the petitioner has been paid something extra which

otherwise she was not entitled for. According to the respondents, immediately

on the respondents detecting the excess payment made to the petitioner, they

have issued the order of recovery.

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

the record, admittedly the petitioner was a Class-III post holder. The order of

recovery has been issued post retirement. Erroneous payment was paid prior

to her retirement. The petitioner, at no point of time is held responsible for the

alleged excess payment, if any, received by her.

6. Given the aforesaid facts, it would be relevant at this juncture to refer to

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

Masih(supra), wherein it has been very emphatically held by the Supreme

Court that in the given situations, the recovery would be impermissible under

the law. Some of the situations in the said judgment of Rafiq Masih(supra) are

reproduced hereinunder:

(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. Taking into consideration the aforesaid situations and comparing the

same with the facts of the present case, this Court is of the opinion that the

case of the petitioner stands squarely covered by the judgment of the

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

of recovery dated 29-07-2021 (Annexure P-1) is not sustainable and the same

deserves to be and is accordingly set aside/quashed.

8. It has been informed by the petitioner that the entire amount has been

deducted from the dues payable to the petitioner.

9. Given the said submissions it is ordered that since the order of recovery

is impermissible under the law, the petitioner would be entitled for the entire

amount which has been recovered by the respondent authorities.

10. Under the said facts and circumstances of the case, this Court is of the

opinion that since the action of the recovery is held to be bad, the respondents

are directed to immediately refund the entire amount recovered forthwith to the

petitioner within an outer limit of 90 days from the date of receipt of the copy of

this order.

SD/-

(Sanjay S. Agrawal) JUDGE

Tumane