Chattisgarh High Court
Smt. Sanyogita Mishra vs State Of Chhattisgarh on 5 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2192 of 2020
1. Smt. Sanyogita Mishra W/o Sarit Kumar Mishra Aged About 61 Years R/o
H.No.36/167, Near Lakhe School, Gandhi Chowk, Chota Para, Raipur,
Chhattisgarh ---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of Health And
Family Welfare, Mantralaya, Mahanadi Bhavan, Atal Nagar, Raipur,
Chhattisgarh.
2. Principal Secretary Department Of Finance, Mahanadi Bhavan, Atal Nagar,
Raipur, Chhattisgarh.
3. Joint Director And Superintendent Dr. Bhim Rao Ambedkar Memorial Hospital
Raipur, Chhattisgarh.
4. The Joint Director Treasury Accounts And Pension, Raipur, Chhattisgarh.
5. Drawing And Disbursement Officer Local Office, Dr. Bhim Rao Ambedkar
Memorial Hospital Raipur, Chhattisgarh. ---- Respondents
For Petitioner : Mr. Akash Kumar Kundu, Advocate
For State : Smt Binu Sharma, Panel Lawyer.
Hon'ble Shri Justice P. Sam Koshy
Order On Board
05.10.2021
1. Aggrieved by the impugned order Annexure P/1 dated 22.04.2020, the
present writ petition has been filed.
2. Vide the impugned order, the respondent No. 3 has ordered for
recovery of an amount of Rs. 2,95,841/- from the retiral dues payable
to the petitioner. The contention of the petitioner is that the respondents
have already adjusted Rs. 23,868/- from the arrears of salary which
was payable to the petitioner.
3. The facts of the case in brief are that the petitioner was working under
the respondents as a Nursing Sister and in due course of time she got
promoted as an Assistant Nursing Superintendent, on which post she
stands retired on 31.04.2021. Just before a year or so the petitioner
was issued with an order of recovery dated 22.04.2020 ordering for
recovery of an amount of Rs.2,95,841/-. The said recovery was said to
be on account of a wrong fixation given to the petitioner in the year
2010 onward.
4. The contention of the petitioner is that, firstly the order of recovery is
bad in law as the same has been issued after retirement, thus, 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 10
years before his 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 Maish, 2015
(4)SCC 334.
5. State counsel, however, opposing the petition submits that it is a case
where admittedly the petitioner has been paid something extra which
otherwise he was not entitled for. According to the respondents,
immediately on the respondents detecting the excess payments made
to the petitioner, they have issued the order of recovery. Further, since
the writ petition has been filed after more than three years, the same
should be rejected on the ground of delay and laches.
6. 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 first time to the petitioner more than 10 years prior to her
retirement. The petitioner, at no point of time is held responsible for the
alleged excess payment, if any, received by her.
7. 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 law. Some of the situations in the said judgment of Rafiq Masih
(supra) are reproduced hereinunder:
(1) Recovery from employees belonging to Class-III 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 has
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 employee's right to recover."
8. 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 Annexure P-1 dated 22.04.2020 is not
sustainable and the same deserves to be and is accordingly set
aside/quashed.
9. As has been informed by the petitioner, before this Court had granted
the interim protection on 09.07.2020, the respondents have recovered
one installment from the dues payable to the petitioner and also an
amount of Rs. 23,868/- from the arrears payable to the petitioner,
however the balance amount by virtue of the interim protection has not
been recovered.
10. In view of the same and the legal position as it stands, the
impugned order Annexure P/1 deserves to be and is accordingly set
aside. The order of recovery is quashed. The respondents are directed
to immediately refund the amount which has already been
recovered/adjusted from the dues payable to the petitioner forthwith
within an outer limit of 60 days.
11. It is made clear that the interference of this Court is only to the
extent of the recovery part, the respondents/State would be entitled to
make all necessary rectification in-respect-of the erroneous fixation of
pay is concerned.
12. The present writ petition accordingly stands allowed and
disposed of.
Sd/-
(P. Sam Koshy)
Judge
Jyoti
