Mukesh Tiwari vs State Of Chhattisgarh
2025 Latest Caselaw 1173 Chatt

Chattisgarh High Court

Mukesh Tiwari vs State Of Chhattisgarh on 14 January, 2025

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                                                                       2025:CGHC:2359




                                                                                   NAFR

                        HIGH COURT OF CHHATTISGARH AT BILASPUR


                                      WPS No. 1672 of 2020

            Mukesh Tiwari S/o Late Manharan Lal Tiwari, Aged About 40 Years
            Posted As Process Server, District Consumer Grievance Redressal
            Forum Baikunthpur, District Koriya Chhattisgarh.
                                                               ... Petitioner(s)
                                              versus


            1 - State Of Chhattisgarh, Through The Secretary, Department Of Food,
            Civil Supplies And Consumer Protection Deptt., Mahanadi Bhawan, Atal
            Nagar, Raipur Chhattisgarh.


            2 - The Registrar, Chhattisgarh State Consumer Grievance Redressal
            Commission Raipur Behind Bus Stand Pandri Raipur Chhattisgarh.,
            District : Raipur, Chhattisgarh


            3 - District Consumer Grievances Forum, Koriya Baikunthpur, District
            Koriya, Through The President, Chhattisgarh
Digitally
signed by
PRAVEEN
KUMAR
SINHA                                                              ... Respondent (S)

For Petitioner : Mr. Ashok Kumar Shukla, Advocate along with Ms. Prakriti Deo, Advocate For State : Ms.Mukta Tripathi, Panel Lawyer

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order on Board

14/01/2025

1. Petitioner has filed this writ petition seeking following reliefs:-

"10.1. This Hon'ble Court may graciously be pleased to issue a writ of mandamus/certiorari or of like nature to quash the impugned order dated 07/04/2012 (Annexure P-1) consequently the order dated 24.06.2014 (Annexure P-7) with direction to refund the amount which has been recovered with reasonable interest.

10.2. That, a command/direction may kindly be issued to call for the entire records pertaining to the case of the petitioner for kind perusal and adjudication.

10.3. Any other relief, which is deemed fit and proper may also be awarded to the petitioner including the cost of the petition."

2. Learned counsel for the petitioner submits that the petitioner was

appointed on the post of Process Server vide order dated 08.01.2010

(Annexure P-4). In the appointment order, there is specific mention of

pay-scale on which petitioner was appointed as Rs.4750-7440(4860

+1400/-). Grade-pay of the petitioner was mentioned in the appointment

order as Rs.1400/-. He contended that petitioner was accordingly granted

pay as per the pay-scale mentioned in the appointment order. However,

vide order dated 07.04.2012 (Annexure P-1), pay-scale of the petitioner

has been amended and grade-pay has been fixed as Rs.1300/- instead

of Rs.1400/- and pursuant to that amendment in the grade-pay, recovery

was also directed and pursuant to recovery order, recovery of alleged

excess payment made to the petitioner has been recovered from him. He

submits that in view of appointment order issued in favour of petitioner

and the Service Rules notified on 18.05.2010 i.e. Chhattisgarh State

Consumer Grievance Redressal Commission and District Consumer

Grievance Redressal Forum (Recruitment & Conditions of Service) Rule

2010 (for short "Service Rules of 2010") while exercising the power under

Section 30 of the Consumer Protection Act 1986, grade-pay of Process

Server is mentioned as Rs.1400/- under Schedule -1 and, therefore,

paying grade-pay of Rs.1400/- to the petitioner cannot be said to be

erroneous and, therefore, order Annexure P-1 is in contravention to the

Schedule -1 of the Service Rules of 2010. He next contended that even

for the sake of arguments, if it is to held that erroneous grade-pay has

been paid to the petitioner, there is no finding recorded by the authority

that it has been paid on account of any fraud or concealment made by

the petitioner and therefore recovery is impermissible under the law. He

also submits that prior to passing of order, no notice was issued and no

opportunity of hearing was given to the petitioner. He also submits that

the pleadings made in the writ petition with respect to Annexure P-6 i.e.

Service Rules of 2010 has not been controverted or disputed by learned

counsel for the State in their reply.

3. On the other hand, learned counsel for the State opposes the submission

of learned counsel for the petitioner and would submits that that the

petitioner is posted as Process Server in District Consumer Grievance

Redressal Forum, Koriya and in view of Annexure R-2, for the employees

appointed in District- Koriya including the petitioner different grade-pay is

provided for Process Server and grade-pay for Process Server is fixed as

Rs.1300/- and not Rs.1400/-, therefore there is no error in passing order

Annexure P-1. She also submits that there is delay in filing this writ

petition.

4. Upon asking to learned counsel for the State as to whether the ground

taken in para - 9.6 of the writ petition of not issuing notice and not

providing opportunity of hearing has been disputed, she submits that in

reply filed by respondent-State on 26.02.2020 there is no specific denial

with respect to pleadings made in para-9.6 of writ petition, however,

contents of para-9 has been denied in its entirety.

5. I have heard learned counsel for the parties and also perused the

documents annexed with this writ petition.

6. Perusal of the document Annexure P-4 which is an order of appointment

dated 08.01.2010 would show that petitioner was appointed in pay-scale

of Rs. 4750-7440 (4860 + 1400) mentioning the grade-pay as Rs.1400/-.

Petitioner has also enclosed copy of Service Rules 2010 notified on

18.05.2010. In Schedule-1 of the Service Rules of 2010, under serial

No.20, grade-pay of Process Server is also mentioned as Rs.1400/-.

Annexure R-2 which is relied upon by learned counsel for the

respondent/State would show that it is not part of service rules, however,

it is a circular issued with respect to regularization of 251 temporary

employees who were continuing in temporary service for more than 3

year. This circular shows that employees were regularized at District

Consumer Redressal Forum Raipur, Bilaspur, Rajnandgaon, Durg,

Sarguja separately and for Jagdalpur, Raigarh and Korea separately. It is

in this document grade- pay of Process Server is mentioned as

Rs.1300/-. This circular is issued with respect to specific category of

employees who were regularized and not for the employees who have

been directly appointed on regular post. Circular cannot supplant the

rules . It is also not in dispute that the petitioner was appointed as Class-

IV employee. In the impugned order, there is no mention that petitioner

has suppressed any material fact or played fraud upon the employer

while obtaining employment and pursuant to that some excess payment

has been made to the petitioner.

7. Hon'ble Supreme Court in the case of State of Punjab and Ors. Vs.

Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 while

considering the recovery of excess payment made to the employees

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."

8. In the above judgment, Hon'ble Supreme Court has held that recovery

from the employees belonging to Class-III and Class-IV service (or Group

'C' and Group 'D' service) is impermissible in law.

9. Relying upon the decision in the case of Rafiq Masih (supra), Hon'ble

Supreme Court in the case of Thomas Daniel Vs. State of Kerala &

Ors. (2022 SCC OnLine SC 536) has further held that recovery from the

employees after long time to be unjustified.

10. Considering the aforementioned facts and circumstances of case and

decision of Hon'ble Supreme Court, in the considered opinion of this

Court, orders Annexure P-1 dated 07.04.2012 and Annexure P-7 dated

24.06.2014, as prayed in the relief clause, is not sustainable. Accordingly

both the impugned orders are hereby quashed. No recovery can be

made from the petitioner pursuant to order Annexure P-1 and Annexure

P-7.

11. As submission of learned counsel for the petitioner is that recovery from

the petitioner has already been made, respondents are directed to refund

the amount in the account of petitioner which has already been

recovered within a period of 3 months from the date of receipt of copy of

this order, failing which, the amount to be refunded shall carry interest at

the rate of 9 per cent per annum.

12. The writ petition is accordingly allowed in above terms.

Sd/-

(Parth Prateem Sahu) Judge

Praveen