Chandrashekhar Prasad Porte vs State Of Chhattisgarh
2021 Latest Caselaw 2511 Chatt

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                                                                                NAFR
                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                  WPS No. 5138 of 2021

     Chandrashekhar Prasad Porte S/o Hiralal Aged About 62 Years Rt. H. M.
     (Middle School) R/o Dabra Post Dabra Block Balrampur District Balrampur-
     Ramanujganj Chhattisgarh.

                                                                      ---- Petitioner

                                             Versus

     1.      State Of Chhattisgarh Through Secretary, Department Of Health And
             Medical, Mahanadi Bhawan, Mantralaya New Raipur, District Raipur
             Chhattisgarh.

     2.      Divisional Joint Director Treasury And Pension Sarguja Division
             Sarguja Chhattisgarh.

     3.      Block Education Officer Balrampur District Balrampur District
             Balrampur Chhattisgarh.

                                                                   ----Respondents

For Petitioner : Mr. Ajay Shrivastava, Advocate For State : Mr. Kunal Das, Panel Lawyer

Hon'ble Shri Justice P. Sam Koshy Order on Board 23/09/2021

1. Aggrieved by the order Annexure P/1 dated 19.03.2020 the present

writ petition has been filed.

2. Vide the impugned order the respondents have recovered an amount

of Rs.1,25,054/- from the retiral dues payable to the petitioner. The

entire amount stands recovered from the gratuity amount. The said

recovery has been made on the ground of some alleged excess

payment made to the petitioner on account of wrong fixation of pay

that occurred while the petitioner was in service.

3. It is a case where the petitioner stood retired from service on the post

of Headmaster, Middle School w.e.f. 31.07.2019. Post retirement

when the retiral dues were being settled for the first time the

impugned order Annexure P/1 was passed and straight away the

recovery was made from the retiral dues being paid to the petitioner

and an amount of Rs.1,25,054/- was recovered from the gratuity

amount paid to the petitioner.

4. The counsel for the petitioner submits that except for issuance of

Annexure P/1, there has been no show cause notice and there has

been no other order passed by the respondents, either giving an

opportunity of hearing to the petitioner or showing the period during

which the alleged excess payment was made, so that the petitioner

could have ascertained the facts. He further submits that since the

impugned order is one, which has been issued much after the

retirement of the petitioner, the recovery as such becomes

impermissible under law and the impugned action on the part of the

respondents therefore deserves to be interfered with. The writ petition

therefore be allowed and the respondents be directed to refund the

alleged excess payment recovered from the petitioner.

5. 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.

6. 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."

7. If we consider the situations, which the Hon'ble Supreme Court has

held 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).

8. The impugned order Annexure P/1, in the light of the aforesaid

judgment of the Hon'ble Supreme Court is unsustainable as the

recovery is impermissible under law and the same is bad in law and

deserves to be and is accordingly set-aside/quashed. The order of

recovery stands quashed. The respondents are directed to ensure

that the entire retiral dues payable to the petitioner is paid at the

earliest within a period of 90 days from the date of receipt of the copy

of this order.

9. It is made clear that the impugned order has been quashed only so

far as the recovery part is concerned. Any rectification part, the State

would be at liberty to carry out the rectification on due verification of

entitlement of the petitioner.

10. With the aforesaid observations, the present writ petition stands

disposed of.

Sd/-

(P. Sam Koshy) Judge Ved