Chattisgarh High Court
Rajendra Kumar Sharma vs State Of Chhattisgarh on 29 September, 2021
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 5274 of 2021
1. Rajendra Kumar Sharma S/o Late Shri D.P. Sharma Aged About 63 Years
R/o Q.No. 74, Gitanjali Park, Mangla Bilaspur District Bilaspur
Chhattisgarh
2. Smt. Sunita Dhariya W/o Shri S.K. Dhariya Aged About 62 Years R/o Near
Satbahaniya Mandir, Old Power House Devrikhud, Bilaspur District
Bilaspur Chhattisgarh
---- Petitioners
Versus
1. State Of Chhattisgarh Through The Secretary, Finance Department
Mahanadi Bhawan, Mantralaya, Atal Nagar, District Raipur Chhattisgarh
2. Secretary Department Of Home (Police), Mahanadi Bhawan, Mantralaya,
Atal Nagar District Raipur Chhattisgarh
3. Director General Of Police Police Headquarters, Block No. 4, Sector 19,
Near Indrawati Bhawan, Atal Nagar, District Raipur Chhattisgarh
4. Superintendent Of Police Bilaspur, District Bilaspur Chhattisgarh
5. Joint Director (Treasury, Accounts And Pension) Bilaspur Division, District
Bilaspur Chhattisgarh
---- Respondents
For Petitioner : Ms. Naushina Ali, Advocate.
For State : Mr. Kunal Das, PL
Hon'ble Shri Justice P. Sam Koshy
Order on Board
29/09/2021
1. The present writ petition has been filed by the two petitioners from whose
retiral dues the respondent no.5 has made certain deductions and from the
gratuity amount payable to the petitioners. The petitioner no.1 was working
on the post of Subedar(M) w.e.f. 30.11.2019 and petitioner no.2 retired
form service on 30.10.2020.
2. In the course of settlement of their post retiral beneftis, the respondent
no.5 recovered an amount of Rs. 84,702/- from the petitioner no.1 and an
amount of Rs. 29,866/- from petitioner no.2, except for the order Annexure
P-1 which reflects recovery being made to in respect of the aforesaid
amount, there is no further details available as to under what head the
deduction is being made and as to when the alleged excess payment was
made to the petitioners and also as to whether the said excess payment
was paid to the petitioners on account of fraud or misrepresentation made
by the petitioners. The department has straight away carried out deduction
from the retiral dues payable to the petitioners without issuance of any
show cause notice or any opportunity of explanation being provided to the
petitioners.
3. Contention of the petitioners is that the action on the part of the
respondents in so far as initiating the recovery proceedings after
retirement is otherwise impermissible under law in the light of the judgment
of the Supreme Court in the case of "State of Punjab and others etc. vs.
Rafiq Masih (White Washer) etc." reported in 2015 AIR SCW 501.
4. State counsel on the other hand opposing the petition submits that it is
only at the time of settlement of post retiral dues that department has
come to know that there has been certain excess payment made to the
petitioners. Therefore, when the respondents have detected the defect in
respect of the excess payment they have taken remedial steps for
recovering the excess payment and therefore it cannot be said to be bad
in law.
5. Having heard the contentions put forth on either side and on perusal of
records, admittedly the two petitioners have retired from service w.e.f.
30.11.2019 & 30.10.2020 respectively. The action of recovery has been
done straightaway from the retiral dues without there being any formal
order of recovery being issued by the department. The two petitioners
herein admittedly were working as a Class-III and Class-IV employees
under the respondents. There is no allegation of any misrepresentation or
fraud played by the petitioners for the purpose of obtaining the alleged
excess payment.
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. In the said paragraph, the decision of the Supreme Court has laid down
certain situations under which the recoveries would be totally
impermissible under law. One of those situations envisaged is when
recoveries have been proposed against the retired employees. The other
situations being the recovery being made from the low paid Class-III and
Class-IV employees. It is also held by the Hon'ble Supreme Court in the
event of the alleged excess payment having been made prior to 5 years
from the date of recovery being made in that event also the recovery
would be impermissible.
8. From the given aforesaid matrix of the present case, it appears that case
of the two petitioners squarely fits in the situations provided by the Hon'ble
Supreme Court. In view of the same the action on the part of the
respondents is bad in law to the extent of making recoveries from the
gratuity amount payable to the petitioner. The impugned orders Annexure
P-1 in respect of both the petitioners to the extent of making recoveries
from the gratuity is held to be bad in law. Respondents are directed to
immediately refund the said amount deducted from the petitioners i.e. the
amount of Rs. 84,702/- and an amount of Rs. 29,866/- from the petitioner
no.1 and petitioner no.2 respectively at the earliest preferably within a
period of 60 days from the date of receipt of copy of this order.
9. With the aforesaid observations, the writ petition stands allowed and
disposed of.
Sd/-
(P. Sam Koshy)
Judge
Rohit
