Chattisgarh High Court
Rajesh Kumar Singh vs State Of Chhattisgarh on 29 September, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 5314 of 2021
Rajesh Kumar Singh S/o Late Shri M. K. Singh, Aged About 60 Years
R/o. C/4, Geetanjali City, S-2, Sarkanda, Bilaspur, P.S. Sarkanda,
Tahsil And District Bilaspur, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through Its Secretary, Department Of Home/
Police, Mahanadi Bhawan, Mantralay, Police Station And Post Rakhi,
Atal Nagar, New Raipur, District Raipur, Chhattisgarh
2. Inspector General Of Police, O/o. Inspector General Of Police, Bilaspur
Range, Near Nehru Chowk, Bilaspur, District Bilaspur, Chhattisgarh
3. Divisional Joint Director, O/o. Divisional Joint Director, Treasury
Account And Pension, Bilaspur, District Bilaspur, Chhattisgarh
4. Superintendent Of Police (SP), O/o. Superintendent Of Police,
Bilaspur, District Bilaspur, Chhattisgarh
----Respondents
For Petitioner : Shri Abhishek Pandey along with
Ms. Laxmeen Kashyap, Advocates.
For Respondent : Shri Kunal Das, P.L.
Hon'ble Shri Justice P. Sam Koshy
Order On Board
29.09.2021
1. Aggrieved by the impugned order Annexure P/2 dated 06.03.2021, the
present writ petition has been filed. Vide the said order, the
respondents have ordered for recovery of an amount Rs. 1,70,749/-
from the gratuity amount payable to petitioner.
2. The facts in brief, are that the petitioner in the present writ petition was
working as a Head Constable under the respondents. The petitioner
stood retired from service on attaining the age of superannuation on
28.02.2021. The petitioner has taken voluntarily retirement from
service. Subsequent to the petitioner having retired, the respondents
have now issued the impugned order whereby they have ordered for
recovery of an amount of Rs. 1,70,749/- from the retiral dues of
petitioner.
3. The decision for recovery is on the ground that while the petitioner was
in service, he was granted certain erroneous fixation on account of
which the petitioner had received excess amount which he was
otherwise under service rules not entitled for. The contention of the
petitioner assailing the action of recovery is that the decision of
recovery of the said amount is per se bad-in-law in the light of the
judgment of the Hon'ble Supreme Court in the case of "State of Punjab
and Ors. etc. v. Rafiq Masih (White Washer) etc . [2015 AIR SCW 501]",
where such recoveries have been clearly held to be impermissible
under law.
4. The further submission of petitioner is that it is not the contention of the
respondents/State that the erroneous or the excess amount received
by the petitioner was on account of any misrepresentation or fraud paid
by the petitioner. It is also the contention that the alleged excess
amount has been paid to petitioner on account of an error on the part of
the respondents because he is not responsible in any manner. Thus
the action of recovery according to the petitioner deserves to be
quashed.
5. The State counsel, on the other hand, submits that upon the petitioner
retiring from service on 28.02.2021, in the course of settlement of dues
it was detected that the petitioner has been given wrong fixation of pay
and this excess payment comes to Rs. 1,70,749/- which now while
settling the retiral dues has been adjusted by the authorities. According
to the State counsel, since the petitioner has received something which
he is not legally entitled for, the respondents are entitled for recovering
the excess amount so paid from the dues payable to petitioner.
6. Given the facts and circumstances of the case, it would be relevant at
this juncture to take note of the judgment of the Supreme Court in case
of Rafiq Masih (Supra) wherein in paragraph 18 the Supreme Court
has clearly held certain situations under which it has been specifically
held that recoveries would become impermissible. For ready reference
the operative part of the said judgment is reproduced herein under:-
"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."
7. A plain perusal of the aforesaid judgment of the Supreme Court if we
consider the factual matrix of the present case, it would reveal that
most of the situations envisaged in the said judgment which make
recovery impermissible are also available in the case of the petitioner in
hand. The petitioner indisputably was employed as Class-III at the time
of his retirement. He retired a few months back before the order of
recovery was passed. The petitioner is not at fault for the alleged
receipt of excess payment.
8. Given the aforesaid facts and circumstances of the case, the impugned
order to that extent is not sustainable and the same deserves to be and
is hereby set aside/quashed. The respondents are directed to
immediately refund the entire amount recovered or adjusted from his
retiral dues i.e. an amount of Rs.1,70,749/- as per Annexure P/2 dated
06.03.2021.
9. However, in case it is found that the alleged excess payment made to
the petitioner is in respect of the post retiral benefits, the respondents
would be at liberty to issue a show-cause notice to the petitioner in
respect of the alleged excess payment and initiate appropriate
proceedings thereafter. This in other words means if it is a case of
excess payment made long ago while the petitioner was in service, any
further proceedings would not be permissible.
10. In view of quashing of the impugned order Annexure P/2 dated
06.03.2021, the respondents are directed to ensure that the entire retiral
dues payable to petitioner is processed and settled at the earliest
preferably within a period of 90 days from the date of receipt of copy of
this order.
11.The writ petition accordingly stands allowed and disposed of in terms of
the observations made in the preceding paragraphs.
Sd/-
P. Sam Koshy
Judge
Khatai
