Dhruv Kumar Sharma vs State Of Chhattisgarh
2025 Latest Caselaw 1957 Chatt

Chattisgarh High Court

Dhruv Kumar Sharma vs State Of Chhattisgarh on 17 February, 2025

                                   1




                                                     2025:CGHC:8241
                                                                 NAFR

        HIGH COURT OF CHHATTISGARH AT BILASPUR

                          WPS No. 4605 of 2022

  1. Dhruv Kumar Sharma S/o Late Shri Ramgulam Tiwari Aged
      About 62 Years R/o Qr. No. 65, Police Line Campus, Bilaspur ,
      Tahsil & P.S. Bilaspur , Civil & Rev. District Bilaspur (CG)
                                                           ... Petitioner
                                versus
  1. State Of Chhattisgarh Through Its Secretary, Department Of
      Home, Police , Mahanadi Mantralaya , Police Station And Post
      - Rakhi, New Raipur Distt. Raipur Chhattisgarh
  2. Director General Of Police (D.G.P.) Police Headquarters (Phq),
      Sector - 19 , Block No.3, Near Mahanadi Mantralaya , Police
      Station And Post - Rakhi , New Raipur , District - Raipur
      Chhattisgarh
  3. Deputy Inspector General Of Police (A.D.G.P.) Administration
      Police Headquarters (Phq), Sector -19, Block No. 3, Near
      Mahanadi Mntralaya, Police Station And Post - Rakhi, New
      Raipur District - Raipur Chhattisgarh
  4. Inspector General Of Police (I.G.P.) Officer Of Inspector
      General Of Police (I.G.P.), Behind Nagar Nigam Office,
      Bilsapur Range, Bilaspur Chhattisgarh
  5. Superintendent Of Police (S.P.) Office Of Superintendent Of
      Police (Sp) Janjgir - Champa, Distt. Janjgir - Champa
      Chhattisgarh 495668
                                                     ... Respondent(s)

For Petitioner : Mr. Shashi Kumar Kushwaha, Advocate

For Respondents : Ms. Akansha Verma, 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.3,07,367/- from the retiral benefits of petitioner

on the ground of excess payment made to him, during his

service tenure.

2. Learned counsel for petitioner submits that petitioner was

retired compulsorily on 18.8.2017. Respondent No.5 issued

order dated 19.4.2018 for recovery of Rs.3,07,367/- 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. As forcefully deduction has been done without

giving any opportunity of hearing petitioner's prayer and as

extra payment done years ago was not petitioner's fault

making such deduction arbitrary, illegal and erroneous and

prayed to refund along with interest. 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 compulsorily retired on 18.8.2017 and

the impugned order of recovery is issued on 19.4.2018 i.e.

after the retirement of petitioner. Thus, the case of petitioner

falls in the cases of recovery of excess payment from

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 18.8.2017 and thereafter,

the order of recovery from retiral dues of petitioner has been

issued on 19.4.2018 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 19.4.2018 (Annexure P-1) 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.

14. Certified copy as per rules.

Digitally SYED signed ROSHAN by SYED ZAMIR ALI ROSHAN ZAMIR Sd/- -/-/--------/--/-

       ALI                                                (Amitendra Kishore Prasad)
                                                                     Judge
               nisha