Motiram vs State Of Chhattisgarh
2021 Latest Caselaw 2873 Chatt

Citation : 2021 Latest Caselaw 2873 Chatt
Judgement Date : 25 October, 2021

Chattisgarh High Court

Motiram vs State Of Chhattisgarh on 25 October, 2021

                                        1

                                                                           NAFR
                HIGH COURT OF CHHATTISGARH, BILASPUR
                            W.P.(S) No. 5790 of 2021
      Motiram S/o Sukhra Ram Aged About 64 Years Retired Upper Division
       Teacher, Govt. Middle School, Jamkani, R/o Village And Post Soor,
       Block Sitapur, District Surguja Chhattisgarh
                                                                   ---- Petitioner
                                     Versus
     1. State Of Chhattisgarh Through The Secretary, School Education
        Department, Mahanadi Bhawan, Mantralaya, Atal Nagar, New Raipur,
        District Raipur Chhattisgarh
     2. The District Education Officer District Surguja Chhattisgarh
     3. The Divisional Joint Director Treasury, Accounts And Pension,
        Ambikapur, District Surguja Chhattisgarh
     4. The District Treasury Officer District Surguja (Ambikapur) Chhattisgarh
     5. The Block Education Officer Mainpath, District Surguja Chhattisgarh
                                                                 ---- Respondents

_____________________________________________________________________ For Petitioner: Shri Harish Khuntiya, Advocate For State/Respondents: Shri Ishan Verma, Panel Lawyer.

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

25.10.2021

1. The challenge in the present writ petition is to the order of recovery

initiated by the authorities vide order dated 31.07.2021 (Annexure P/1),

whereby the respondents have ordered for recovering an amount of

Rs.1,04,810/- from the retiral dues payable to the petitioner.

2. The facts of the case are that the petitioner was working under the

respondents as an Upper Division Teacher and he stood retired from service

w.e.f. 30.04.2020. Till the date of retirement there was no order of recovery

issued by the respondents. After more than one year from the date of

retirement, the respondents have now issued the impugned order Annexure

P/1 ordering for recovery of an amount of Rs.1,04,810/- from the retiral dues

payable to the petitioner. The said alleged recovery is said to be on the basis

of some erroneous fixation of pay made to the petitioner w.e.f. 01.01.2016 to

30.04.2020. According to the petitioner, he is a retired personnel 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 we consider 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 31.07.2021 ordering for recovery of an

amount of Rs.1,04,810/- 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