Chattisgarh High Court
Bhairo Prasad Mishra vs State Of Chhattisgarh on 12 August, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 3689 of 2022
• Bhairo Prasad Mishra S/o Late Shivlal Mishra, Aged About 63 Years
Occupation Sub Inspector (Retired) R/o Tahsil Lormi, District : Mungeli,
Chhattisgarh ---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Home, Finance And Police Affairs,
Mahanadi Bhawan, New Mantralaya, Raipur Chhattisgarh, District : Raipur,
Chhattisgarh
2. The Director General Of Police, Police Head Quarter, Raipur, District : Raipur,
Chhattisgarh
3. Superintendent Of Police, Raigarh, District : Raigarh, Chhattisgarh
4. The Joint Director, Treasury, Account And Pension, Bilaspur Division, District :
Bilaspur, Chhattisgarh ---- Respondents
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For petitioner : Mr. Prakash Tiwari, Advocate.
For Respondent/State. : Mr. Vaibhav Singh, PL
Hon'ble Shri Justice Narendra Kumar Vyas.
Order on Board
(12-08-2022)
1. Learned counsel appearing for the petitioner would submit that the
petitioner has filed this writ petition against the order of recovery dated
25-1-2022 (Annexure P/1) issued by the respondent No.3 by which the
petitioner has been directed to pay the amount of Rs.4,76,708/- which is
paid in excess to the petitioner who retired from the post of Sub
Inspector on 31-12-2021.
2. From the documents, it is clear that the respondent No.3 after the
retirement of the petitioner has issued an order of recovery of excess
payment to the tune of Rs.4,76,708/- showing the wrong pay fixation from
1-1-1996 that continued till his retirement ie.,on 31-12-2021 on the post
of Sub Inspector. This order has been assailed by the petitioner by filing
the instant writ petition under Article 226 of the Constitution of India.
3. Learned counsel for the petitioner would submit that so called erroneous
pay fixation occurred on the default of their official staff and finally after
lapse of 29 years of his service, respondent No.3 issued the order
impugned for recovery of so called excess payment to the tune of
Rs.4,76,708/- without there being any prior notice or intimation He
would further submit that recovery of alleged excess amount is
against the law in view of the decision rendered by the Hon'ble
Supreme Court in the matter of State of Punjab vs. Rafiq Masih
(While Washer), reported in 2015 (4) SCC 334. He would further
submit that if the amount of Rs. 4,76,708/- was directed to be
refunded, it will be irreparable loss to the petitioner as it would amount
to unjust, therefore, the recovery order dated 25-1-2022 (Annexure
P/1) kindly be quashed.
4. On the other hand, learned State counsel would submit that since the
illegal excess payment has been made to the petitioner, therefore,
the recovery order dated 25-1-2022 (Annexure P/1) is justified and
does not call for any interference.
5. I have heard learned counsel for the parties and perused the record.
6. The State has filed their return wherein they have stated that
recovery has been done in accordance with law laid down by Hon'ble
Supreme Court in the case of High Court of Punjab and Haryana vs.
Jagdeo Singh, reported in (2016 14 SCC wherein it has been held in
para 11 as follows.
"11. The principle enunciated in proposition
(II) above cannot apply to a situation such as
in the present case. In the present case,
the officer to whom the payment was made
in the first instance was clearly placed on
notice that any payment found to have been
made in excess would be required to be
refunded. The officer furnished an
undertaking while opting for the revised pay
scale. He is bound by the undertaking".
7. The facts projected by the petitioner in this case and the facts
reflected from the judgment of High Court of Punjab and Haryana vs.
Jagdeo Sing (supra) are all together different as this case relates to
judicial officer whereas in the present case, the petitioner was Head
Constable and subsequently he was promoted to the post Sub
Inspector which is a Class-III post. Hon'ble the Supreme Court in the
subsequent judgment of Thomas Deanial Vs. State of Keralam
2022 SCC Online SC 536 has observed as under.
"13) In State of Punjab and Others v. Rafiq Masih
(White Washer) and Others4 wherein this court
examined the validity of an order passed by the
State to recover the monetary gains wrongly
extended to the beneficiary employees in
excess of their entitlements without any fault or
misrepresentation at the behest of the recipient.
This Court considered situations of hardship
caused to an employee, if recovery is directed
to reimburse the employer and 4 (2015) 4 SCC
334 disallowed the same, exempting the
beneficiary employees from such recovery. It
was held thus:
"8. As between two parties, if a determination is
rendered in favour of the party, which is the weaker
of the two, without any serious detriment to the
other (which is truly a welfare State), the issue
resolved would be in consonance with the concept
of justice, which is assured to the citizens of India,
even in the Preamble of the Constitution of India.
The right to recover being pursued by the employer,
will have to be compared, with the effect of the
recovery on the employee concerned. If the effect of
the recovery from the employee concerned would
be, more unfair, more wrongful, more improper, and
more unwarranted, than the corresponding right of
the employer to recover the amount, then it would
be iniquitous and arbitrary, to effect the recovery. In
such a situation, the employee's right would
outbalance, and therefore eclipse, the right of the
employer to recover.
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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 hereinabove, we may, as a
ready reference, summarise the following few
situations, wherein recoveries by the employers,
would be impermissible in law:
(i) Recovery from the employees belonging to Class
III and Class IV service (or Group C and Group D
service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year, of
the order of recovery.
(iii) Recovery from the 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."
14) Coming to the facts of the present case, it is not
contended before us that on account of the
misrepresentation or fraud played by the appellant,
the excess amounts have been paid. The appellant
has retired on 31.03.1999. In fact, the case of the
respondents is that excess payment was made due
to a mistake in interpreting Kerala Service Rules
which was subsequently pointed out by the
Accountant General."
8. Now coming to the facts of the case, it is not in dispute that the
petitioner retired from services as Sub Inspector, which is Class III
therefore, recovery amount is against the law laid down by Hon'ble
Supreme Court .
9. In the result, the the writ petition succeeds and is accordingly
allowed. The recovery order dated 25-1-2022 (Annexure P/1) issued
by the respondents is quashed. It is directed that the State shall
release the pension and retiral dues of the petitioner within a period
of one month from the date of receipt of a copy of this order.
Sd/-
(Narendra Kumar Vyas)
JUDGE
Raju
