Chattisgarh High Court
Bhagat Ram Kurrey vs State Of Chhattisgarh on 17 February, 2025
1
2025:CGHC:8239
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 4348 of 2022
1. Bhagat Ram Kurrey S/o Late Shri J.R. Kurrey Aged About 62
Years Headmaster (Middle School) Govt. Middle School,
Tanakhar, Block Podi Uproda, District : Korba, Chhattisgarh
... Petitioner
versus
1. State Of Chhattisgarh Through The Secretary, Department Of
School Education, Mantralaya, Mahanadi Bhawan, Atal Nagar,
Naya Raipur, District : Raipur, Chhattisgarh
2. The Director Directorate Of Public Instructions, Indravati
Bhawan, Mantralaya, Naya Raipur, District : Raipur,
Chhattisgarh
3. The District Education Officer Korba, District : Korba,
Chhattisgarh
4. The Joint Director Treasury Account And Pension, Bilaspur,
District : Bilaspur, Chhattisgarh
5. The Block Education Officer Block Podi Uproda, Korba, District
: Korba, Chhattisgarh
... Respondent(s)
For Petitioner : Mr. A.S. Rajput, Advocate
For Respondents : Mr. Abhishek Gupta, Panel Lawyer.
S.B.: Hon'ble Shri Amitendra Kishore Prasad, Judge
Order On Board
17/2/2025
1. Grievance of petitioner in this writ petition is with regard to
recovery of Rs.1,49,166/- from the retiral dues of her deceased
husband on the ground of excess payment made to him,
during his service period.
2. Learned counsel for petitioner submits that petitioner stood
retired as Upper Division Teacher (Middle School) on
28.2.2022. Respondent No.5 issued the order dated 13.6.2022
for recovery of Rs.1,49,166/- allegedly paid in excess to
petitioner during his service tenure. Petitioner was a Class-III
employee and after his retirement, no recovery can be made
from the retiral benefits payable to him. During his service
period, petitioner was never informed about any excess
payment made to him, even before proposing recovery and
showing amount to be recovered, no notice was issued to
petitioner asking that the amount paid in excess has to be
recovered. He submits that there was no misrepresentation or
fraud practiced by the petitioner and the excess payment of
salary was for reasons not attributed to the husband of the
petitioner. In support of his contention, he placed reliance on
the decision of Hon'ble Supreme Court in cases of State of
Punjab & ors Vs. Rafiq Masih (White Washer) & ors,
reported in (2015) 4 SCC 334 ; High Court of Punjab and
Haryana and others v. Jagdev Singh reported in (2016) 14
SCC 267; and also the orders passed by Division Bench of this
High Court in Writ Appeal No.264/2020 (State of
Chhattisgarh v. Labha Ram Dhruv) and Writ Appeal No.265/2020
(State of Chhattisgarh and others v. Roshan Lal Baghel)
3. Learned State Counsel submits that upon examination of the
service book of the petitioner, the respondent authorities raised
an objection with respect to excess payment to petitioner on
account of wrong fixation of pay-scale, therefore, the order has
been issued for recovery of excess amount of salary paid to
petitioner. Further, the said recovery cannot be said to be bad
because at the time of entering into service and thereafter from
time to time, the petitioner had given undertakings that in case
if any payment is made in excess, he will return the excess
amount or the authorities will be at liberty to deduct from his
retiral dues. Therefore, the petitioner is estopped from
challenging the recovery order issued by the authority. Hence,
the action taken by the respondents is just and proper.
4. Heard learned counsel for the parties and perused documents
filed along with writ petition.
5. It is not in dispute that petitioner was a Class III cadre
employee, he has been retired on 28.2.2022 and the
impugned order of recovery is issued on 13.6.2022. Thus, the
case of petitioner falls in the cases of recovery of excess
payment from retired employees belonging to Class III and
Class IV category.
6. In the case of Rafiq Masih (supra), the Apex Court
considering the issue of recovery of amount has summarized
the situations where in certain cases even the recovery from
the employee by the employer would not be permissible in law.
In Para-18 it was observed thus:-
"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. In case of Jagdev Singh (supra), Hon'ble Supreme Court though
had considered the issue with regard to the undertaking, however,
Para-10 (i) of the decision in case of Rafiq Masih(supra) has not
been overruled or interfered. This aspect is also considered by the
Division Bench of this Court in case of Labha Ram Dhruv (Supra)
and observed thus:-
"9.In the case at hand, the Revision of Pay
Rules, 2009 and 2017 do not make any
enabling provision reserving option for the
employer to seek refund of the amount paid in
excess, by making the employee to furnish an
undertaking. Even if we conclude, for the sake
of arguments, that even in the absence of
enabling provision under the Rules,
undertaking given by the employee would
operate, the fact remains that against the
classes of employees against whom recovery
would be impermissible in law, as held by the
Hon'ble Supreme Court in the matter of Rafiq
Masih (Supra), recovery from the employees
belonging to Class-III and Class-IV service (or
Group 'C' and Group 'D' service) would still be
impermissible in law. Meaning thereby that
even when undertaking is submitted by the
employee, but he otherwise belongs to Class-III
and Class-IV service, and the amount has been
paid more than 5 years back, the law declared
by the Hon'ble Supreme Court in the matter of
Rafiq Masih (Supra) would still hold the field in
favour of such employees, because the
judgment in the matter of Rafiq Masih (Supra)
has not been overruled, but only clarified, by
the Hon'ble Supreme Court in its later judgment
in the matter of Jagdev Singh, Supra"
8. From perusal of the above it is clear that recovery of amount
from the employees belonging to Class-III and Class-IV service
(or Group 'C' and Group 'D' service), is impermissible in law.
Meaning thereby that even when undertaking is submitted by
the employee, but he otherwise belongs to Class-III and Class-
IV service.
9. In the case at hand, admittedly, petitioner has been
compulsorily retired from service on 28.2.2022 and thereafter,
the order of recovery from retiral dues of petitioner has been
issued on 13.6.2022. It is also not the case of the respondents
that petitioner has received excess payment by practicing
fraud or by making representation. Thus, the petitioner cannot
be compelled to refund the amount which has been paid by the
respondents on their own without any misrepresentation or
fraud on the part of the petitioner.
10. So far as the undertaking submitted by petitioner during course
of his employment is concerned, the Division Bench of this
High Court in WA No.264/2020 (supra), while considering the
issue of undertaking has held that giving of such an
undertaking is not a voluntary act and the recovery on that
basis, therefore, cannot be sustained. The Division Bench in
Para-14 has held thus:-
"14. While passing the order dated 22.09.2021 in State
of Chhattisgarh & Others vs. Labha Ram Dhruv and the
batch of cases, the Division Bench of this Court had
observed as follows:
"9.In the case at hand, the Revision of Pay Rules,
2009 and 2017 do not make any enabling provision
reserving option for the employer to seek refund of
the amount paid in excess, by making the employee
to furnish an undertaking. Even if we conclude, for
the sake of arguments, that even in the absence of
enabling provision under the Rules, undertaking
given by the employee would operate, the fact
remains that against the classes of employees
against whom recovery would be impermissible in
law, as held by the Hon'ble Supreme Court in the
matter of Rafiq Masih (Supra), recovery from the
employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service) would
still be impermissible in law. Meaning thereby that
even when undertaking is submitted by the
employee, but he otherwise belongs to Class-III and
Class-IV service, and the amount has been paid
more than 5 years back, the law declared by the
Hon'ble Supreme Court in the matter of Rafiq Masih
(Supra) would still hold the field in favour of such
employees, because the judgment in the matter of
Rafiq Masih (Supra) has not been overruled, but
only clarified, by the Hon'ble Supreme Court in its
later judgment in the matter of Jagdev Singh, Supra.
10. Insofar as, the order passed by this Court in the
matter of Pramila Mandavi, referred to above, is
concerned, a plain reading of the order would reveal
that the facts as to whether the Revision of Pay
Rules makes an enabling provision to obtain
undertaking and thereafter entitles the employer to
make recovery has not been considered. Similarly,
the effect of judgment in the matter of Rafiq Masih
(Supra) making recovery of an amount paid to
Class-III or Class-IV employees has also not been
dealt with. Therefore,the judgment passed in the
Writ Appeals is distinguishable on the strength of
law laid down by conjoint reading of the judgments
rendered by the Hon'ble Supreme Court in the
matters of Rafiq Masih and Jagdev Singh (Supra)."
11. Considering the aforesaid view already taken and decided by
the Division Bench of this Court and the fact that excess
amount was not paid on account of any misrepresentation or
fraud on the part of the petitioner, I am fortified by the view
taken by the Division Bench and the undertaking given by the
petitioner is of no avail to justify the recovery in the present
case.
12. In light of above decisions of Hon'ble Supreme Court and in
the given facts and circumstances of case, in the considered
opinion of this Court, the respondents cannot be permitted to
make the recovery from retiral dues of petitioner and being so,
the recovery against petitioner is not permissible and hence,
the order impugned is bad in law.
13. Consequently, the writ petition is allowed. Impugned order of
recovery dated 13.6.2022 (Annexure P-2) is hereby quashed.
Respondents are directed to refund the amount in question, if
recovered, to the petitioner within a period of 90 days from the
date of order, failing which the aforesaid amount shall carry
interest @ 6% per annum till actual date of payment.
Digitally
14. Certified copy as per rules.
SYED signed
ROSHAN by SYED
ZAMIR ROSHAN
ALI ZAMIR
ALI Sd/-
(Amitendra Kishore Prasad)
Judge
nisha
