Bhaiya Ram Goti vs State Of Chhattisgarh
2021 Latest Caselaw 2124 Chatt

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                                                                            NAFR
               HIGH COURT OF CHHATTISGARH AT BILASPUR
                        Writ Petition (S) No. 4642 of 2021

   1. Bhaiya Ram Goti S/o Late Siyaram Goti Aged About 65 Years Retired
      Assistant Engineer /sdo, Water Resources Department, Posted In The
      Office Of Executive Engineer Water Resources Survey And Barrage
      Construction Division No. 2, Champa District Janjgir Champa Chhattisgarh
      R/o C/o Ram Gopal Devangan, Qr. No. A/4, Sai Vatika Colony Devpuri
      Raipur District Raipur Chhattisgarh.
                                                                ---Petitioner(s)
                                     Versus
   1. State of Chhattisgarh Through Secretary, Department of Water Resources,
      Mahanadi Bhawan, New Mantralaya, Raipur Chhattisgarh
   2. Engineer In Chief Water Resources Department, Mahanadi Bhawan, New
      Mantralaya, Raipur Chhattisgarh
   3. Executive Engineer Water Resources Survey and Barrage Construction
      Division No. 02, Champa District Janjgir Champa Chhattisgarh
   4. Division Joint Director Treasury, Account And Pension, Bilaspur Division
      District Bilaspur Chhattisgarh
                                                               ---Respondents

      For Petitioner             :       Shri F S Khare, Advocate.
      For State                  :       Ms. Abhyunnati Singh, Panel Lawyer.

                       Hon'ble Shri Justice P. Sam Koshy
                                Order on Board

03.09.2021.

1. Aggrieved by the order dated 30.06.2021 the present writ petition has

been filed. Vide the impugned order the respondents have ordered for

recovering of an amount of Rs.4,17,267/-and the said amount has already

been recovered by adjusting the said amount from the gratuity amount

payable to the petitioner on his retirement as is evident from Annexure P/2

dated 24.07.2021.

2. The contention of the petitioner is that he was working on the post of

Assistant Engineer under the respondents and on attaining the age of

superannuation the petitioner got retired w.e.f. 30.06.2018. Subsequent to

his retirement the petitioner has only been recently after more than three

years being released with the gratuity amount payable to him as would be

evident from Annexure P/2 dated 24.07.2021. However, while releasing

the gratuity amount it is reflected that the department has recovered an

amount of Rs.4,17,267/- from the total gratuity amount payable to the

petitioner. It was then, that the petitioner came to know that the

respondents had issued an order on 30.06.2021, Annexure P/1 holding

that there is an alleged excess payment made to the petitioner for the

period between 25.02.2004 to 30.06.2018 amounting to Rs.4,17,267/-and

which has been ordered to be recovered.

3. The contention of the petitioner is that the there is no allegation of any

misrepresentation or fraud played by the petitioner in the obtaining of the

said amount of excess payment. It is also the contention of the petitioner

that the first alleged payment has been made almost 14 years prior to

petitioner having retired and about 17 years before the order of recovery

was passed. The counsel for the petitioner relied upon judgment of

Supreme Court in case of State of Punjab Vs. Rafiq Masih, 2015 (4)SCC

334.

4. The State counsel on the other hand contended that since at the time of

settlement of the retiral dues it was found that the petitioner had been

wrongly granted extra increment which otherwise not entitled for and

therefore this excess money paid to the petitioner on account of wrong

fixation of pay has been ordered to be recovered from the dues payable to

the petitioner. The same thus cannot be said to be bad in law. He further

submits that even otherwise at the time of retirement an employee/officer

has to give an undertaking in respect of recovery of any excess payment

made, and in the instant case also the petitioner must have definitely given

an undertaking and on that basis also the recovery cannot be held to be

bad in law.

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

records, it would be relevant at this juncture to take note of decision of the

Supreme Court in case of Rafiq Masih (Supra) wherein in paragraph 18

the Supreme Court has laid down certain situations under which the

recovery becomes impermissible under the law. For ready reference para

18 of the said judgment is being reproduced hereinunder:

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

(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. On going through the facts of the present case it clearly reflects that the

case of the petitioner squarely meets most of the situations mentioned in

the judgment of the Supreme Court wherein the recovery has been held to

be impermissible under the law. Thus, the case of the petitioner is squarely

covered by the said judgment.

7. As regards the contention of the State that there is an undertaking given

by the petitioner at the time of retirement is concerned, this court is of the

opinion that the said undertaking firstly would be applicable in respect of

any erroneous payment made to the petitioner by way of retiral dues or

pensionary benefits. The said undertaking cannot be stressed to the extent

of recovering an allegedly excess payment made long back while the

employee was in service and for which the employee was not directly or

indirectly responsible for receiving the same that to if at all wrongly paid.

8. As regards the alleged excess payment made long back while the

employee was in service, the authorities would always have liberty to carry

out the rectification part, but the excess payment so paid cannot be

recovered in the light of the judgment of Supreme Court rendered in Rafiq

Masih (Supra).

9. For the aforesaid reasons, the writ petition at this juncture stands allowed.

The impugned order of recovery is held to be bad in law. The same

deserves to be and is hereby set aside/quashed. The respondents are

directed to ensure that the amount recovered should be refunded back to

the petitioner forthwith within a period of 60 days from the date of receipt

of copy of this order.

10. The writ petition accordingly stands allowed and disposed of.

Sd/-

(P. Sam Koshy) Judge inder