Baldau Prasad Sao vs State Of Chhattisgarh
2021 Latest Caselaw 2807 Chatt

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                                                                                          NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                                      WPS No. 5606 of 2021
      Baldau Prasad Sao S/o Dewan Sao Aged About 63 Years Retired Lecturer,
       R/o Village Sonsari Post Nariyara District Janjgir Champa Chhattisgarh.,
       District : Janjgir-Champa, Chhattisgarh
                                                                                         ---- Petitioner
                                                 Versus
     1. State Of Chhattisgarh Through Secretary, School Education Department
        New Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, District Raipur
        Chhattisgarh, District : Raipur, Chhattisgarh
     2. District Education Officer Janjgir District Janjgir Champa Chhattisgarh,
        District : Janjgir-Champa, Chhattisgarh
     3. Office Of The Accountant General Zero Point Vidhansabha Road Raipur,
        District Raipur Chhattisgarh, District : Raipur, Chhattisgarh
     4. Joint Director Treasury Pension And Account, Bilaspur District Bilaspur
        Chhattisgarh., District : Bilaspur, Chhattisgarh
                                                                                    ---- Respondents
________________________________________________________________________
For Petitioner                               :        Shri Sushil Sahu, Advocate
For State/Respondent Nos.1,2& 4:                      Shri Neeraj Pradhan, PL
For Respondent No.3                          :        Shri Ashwani Shukla, Advocate
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Single Bench:Hon'ble Shri Sanjay S. Agrawal, J Order On Board 21.10.2021

1. Challenge in this petition is to the order of recovery of Rs.72,800/- which

was sought for and out of it, the Petitioner has deposited a sum of Rs.72,599/- on

28.12.2020. It is not in dispute that the petitioner retired after rendering the

services as Lecturer at Government Higher Secondary School, Sonsari, District

Janjgir Champa on 30.09.2020. It is contended that the petitioner was served with

a notice after the retirement. Further to settle the pension of the petitioner, for the

first time after two months i.e. on 26.12.2020, the recovery notice was served vide

Annexure P-2. The petitioner contends that the said recovery was made by way of

an arm twisting method as after retirement if the amount would not have paid, the

further pensionary benefit would not have been given. Consequently, the

petitioner was forced to make payment of the said amount and out of it, he paid

Rs.72,599/- so that the pensionary benefit survives. It is contended that after the

deposit was made, the action of the State respondents is under challenge as

illegal and arbitrary. Learned counsel for the petitioner would submit that the ratio

laid down in case of State of Punjab & Others Vs. Rafiq Masih (White Washer)

& Others reported in 2015 (4) SCC 334, clearly postulates the recovery of

amount after retirement would be barred. It is contended that the petitioner held

the post of Lecturer at Govt. Higher Secondary School, a Class II post,

therefore, as per the law laid down, the recovery from the petitioner cannot be

made.

2. Learned State counsel would submit that the recovery is on the

background of the excess payment made as and when the salary was revised.

The reference was made to the undertaking given by the petitioner and would

submit that the undertaking takes within its sweep entirety the excess payment

made, if any. Consequently, as per the law laid down in case of High Court of

Punjab & Haryana and Others v. Jagdev Singh reported in AIR 2016 SC 3523,

the undertaking having been given, the State is within its right to recover. Reliance

is also placed in case of State of Chhattisgarh & Others v. Pramila Mandavi

decided on 02.12.2019 in W.A. No.376 of 2019 and would submit that the ratio

laid down in such case would also be applicable as the undertaking saves the

conduct of the State.

3. Perused the documents. It is not in dispute that the petitioner belongs to

Class-II cadre as he was a Lecturer in the Higher Secondary School. It is also not

in dispute that after the petitioner retired, the recovery notice was served on him

on the ground that excess payment was made. In case of Rafiq Masih (supra),

the Supreme Court at para 18 has laid down the following guideline, which under

those conditions makes the recovery impermissible. For the sake of relevance,

para 18 is reproduced hereunder :

"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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law :

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii)Recovery from the 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.

4. The reliance placed by the State in case of High Court of Punjab &

Haryana v. Jagdev Singh (supra) would show that in such case the Supreme

Court permitted the recovery to be made on the basis of undertaking given

earlier. In the said case, the respondent was appointed as Civil Judge and Rules

governing the service were namely Haryana Civil Service (Judicial Branch) and

Haryana Superior Judicial Service Revised Pay Rules, 2001. Under those Rules,

each of the officers were required to submit an undertaking that any excess

which may be found to have been paid will be refunded to the Government either

by adjustment against future payments due or otherwise. Therefore, there was a

mandatory requirement under the Rules itself. The Supreme Court while

deciding the said case emphatically referred to the service rules and held that

undertaking given in such circumstance would be executable and observed it

that the ratio of State of Punjab & Ors. v. Rafiq Masih (supra) cannot be

applied uniformly. It was held in case of High Court of Punjab & Haryana v.

Jagdev Singh (supra) that the officer 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. Consequently, the officer

furnished an undertaking while opting for revised pay-scale.

5. The Supreme Court in case of Ashok Kumar v. Ved Prakash & Others

reported in (2010) 2 SCC 264, at para 22 & 23 held as under :

"22. Before parting with this Judgment, a short submission of the learned counsel for the appellant needs to be dealt with. According to the learned counsel for the appellant, the case of Harbilas [(1996) 1 SCC 1] and Rakesh Vij [(2005) 8 SCC 504] were rendered on the amendments made to East Punjab Rent Act, whereas the case of Mohinder Prasad Jain [(2006) 2 SCC 724] and the issue before us concerned removing a classification which existed from the inception of the legislation. Therefore, according to the learned counsel for the appellant, a decision and reasoning concerning the East Punjab Rent Act cannot apply to a question with respect to the present Act because both the legislations are products of different legislatures and the rationale behind one cannot be compared at par with that of the other.

23. The learned counsel for the appellant, in support of this contention, relied on a decision of this Court in the case of State of Madhya Pradesh v. G.C.Mandawar [AIR 1954 SC 493] and strong reliance on para 9 of this decision was pressed by the learned counsel for the appellant, which may be quoted :-

"9. It is conceivable that when the same Legislature enacts two different laws but in substance they form

one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different legislatures."

6. The facts further would show that the petitioner was required to

deposit an amount of Rs.72,800/- after his retirement. The petitioner was

superannuated on 30.09.2020 and as per the averments, the said deposit

was required to be made on 28.12.2020 in the Treasury, which was done

by the petitioner under protest. The petitioner contended that he was told

that if he does not deposit the amount, his retiral dues and pension papers

would not be prepared. Consequently, the deposit was made under

compulsion and under protest. The facts when are examined in the twilight

zone of legality, it shows that after the retirement a sword was kept

dangling over the head of the petitioner as a threat that if deposits are not

made, as required, the pensionary benefit would not be released. Reality

therefore was far from rosy-hued narrative. The narrative of the incident

suggests when the petitioner was called upon to deposit, the petitioner was

not equal in bargaining power. The inequality in bargaining power is the

result of disparity, as certainly the petitioner was weaker party in the

position to avail the pensionary benefit, which was the means of his

livelihood upon terms imposed upon by the stronger party i.e. the State.

The petitioner therefore did not have a meaningful choice but to give his

assent to deposit the amount; might be it is unfair, unreasonable and

unconscionable, therefore, following the principles of the Supreme Court in

Central Inland Water Transport Corporation Ltd. & Another v. Brojo

Nath Ganguly & Another reported in AIR 1986 SC 1571, the actions can

be said to be there has been a gross equality of bargaining power between

the State and the petitioner as non-payment of the amount would create a

sense of insecurity in the mind of the petitioner. The Supreme Court as has

been held that in the likewise situation, deciding any case which may not

be covered by authority but before the Court the beacon light of Preamble

to the Constitution would be available and the Court can always be guided

by that light and the principles underlying the Fundamental Rights and the

Directive Principles enshrined in the Constitution. Therefore, the deposit

under such duress by the petitioner lies on dark side of both illegality and

humanitarian principles. Consequently, it would be against the public policy

and contrary to the fundamental rights and the directive principles

enshrined in the Constitution. Accordingly, it cannot be legalized or

insulated.

7. In a result, it is directed that the amount of Rs.72,599/- so deposited

by the petitioner shall be returned to him by the State within a period of 60

days with interest of 6% per annum from the date of its deposit till the date

of actual payment.

8. In view of the above, the petition is allowed to the above extent.

Sd/-

(Sanjay S. Agrawal) JUDGE sunita