Chattisgarh High Court
Bhikham Prasad Hanseliya vs State Of Chhattisgarh on 18 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 6170 of 2021
Bhikham Prasad Hanseliya S/o Shri Suritram Hanseliya Aged About 62
Years Retired Head Master (Govt. Middle School Lahanga), R/o Ward
No. 21, Near Radhakrishna Mandir Janjgir, District Janjgir Champa,
Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Mahanadi Bhawan, Mantralaya Atal Nagar, Naya Raipur,
District Raipur, Chhattisgarh, District : Raipur, Chhattisgarh
2. The District Education Officer Sakti, District Janjgir Champa,
Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
3. The Divisional Joint Director, Treasury, Accounts And Pension Bilaspur,
District Bilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh
4. The District Treasury Officer, District Janjgir Champa, Chhattisgarh,
District : Janjgir-Champa, Chhattisgarh
5. The Block Education Officer Sakti, District Janjgir Champa,
Chhattisgarh, District : Janjgir-Champa, Chhattisgarh
---- Respondents
_____________________________________________________________________
For Petitioner: Shri Jeet Patel, Advocate
For State/Respondents: Ms. Abhyunati Singh, Panel Lawyer.
Single Bench:Hon'ble Shri Sanjay S. Agrawal, J
Order On Board
18.11.2021
1. The challenge in the present writ petition is to the order of recovery
initiated by the authorities vide order dated 07.10.2021 (Annexure-P/1),
whereby the respondents have ordered for recovering an amount of
Rs.1,88,210/- from the petitioner.
2. The facts of the case are that the petitioner was working under the
respondents as a Headmaster at Govt. Middle School, Lahanga and he stood
retired from service w.e.f. 31.05.2021. Till the date of retirement there was no
order of recovery issued by the respondents. After the date of retirement, the
respondents have now issued the impugned order Annexure P/1 ordering for
recovery of an amount of Rs.1,88,210/-. The said alleged recovery is said to
be issued without issuing a show cause notice and it appears to be issued on
the basis of some erroneous fixation of pay made to the petitioner w.e.f.
03.07.1996 to 31.05.2021. 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 this Court considers 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 07.10.2021 ordering for recovery of an
amount of Rs.1,88,210/- 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 indulgence of this Court
is only to the extent of recovery, the respondents would be at liberty to rectify
the erroneous fixation provided to the petitioner without making any recovery.
9. With the aforesaid observations, the present writ petition stands
disposed of. Sd/-
(Sanjay S. Agrawal)
JUDGE
sunita
