For Petitioner : Mr. Sumit Shrivastava, Advocate
For State : Ms. Mukta Tripathi, Panel Lawyer
(Hon'ble Shri Parth Prateem Sahu, Judge)
Order on Board
16/01/2025
1. Petitioner has filed this writ petition seeking following relief :
10.3 Any other relief, which this Hon'ble Court
may deem fit and proper, may also be passed
in favour of the petitioner together with cost of
the petition."
2. Learned counsel for petitioner submits that petitioner is holding post of Forest
Guard. He was appointed on 06.09.2007, salary has been fixed as Rs. 5680/-
with grade pay of Rs. 1900/- and he was being paid salary of Rs. 7810/- per
month. In the year 2017, petitioner was transferred from Gariyaband Raipur
Division to Jagdalpur Division. Petitioner was served with an order on
24.10.2018 mentioning therein that his pay has been erroneously fixed and
pursuant thereto petitioner was paid excess salary to the tune of Rs. 37,727/-
and further it also mentioned that recovery be made @ of Rs. 2,000/- per
month. It is contention of learned counsel for petitioner that in the order, there
is no mention that wrong fixation of pay in the year 2008 is based on any
misrepresentation or fraud committed by petitioner upon employer. Wrong
fixation of pay, if any, may be due to error on the part of respondents, hence,
recovery of the excess payment cannot be made from petitioner, more so
when petitioner is a Class - IV employee. He contended that till date, some
part of amount has already been recovered. He submits that as held in the
case of State of Punjab and Others etc. vs. Rafiq Masih (White Washer)
etc., recovery from Class - IV employee is not permissible.
3. On the other hand, learned State counsel opposes the submission made by
learned counsel for petitioner and would submit that wrong fixation of pay is
made for the petitioner which detected only when petitioner was transferred
from Gariyaband Raipur Division to Jagdalpur Division and accordingly, order
was passed. She also contended that petitioner, at the time of fixation of pay
has given an undertaking and therefore, there is no error in passing of order
Annexure-P/1 and order of recovery of excess salary already paid to
petitioner. In support of her contention regarding undertaking, she referred to
Annexure-R/2.
4. I have heard learned counsel for the respective parties and also perused
documents annexed along with the record as also the reply.
5. It is not in dispute that wrong fixation of pay of petitioner was of the year
2008. Order of recovery and re-fixation of pay was only on 24.10.2018.
Annexure-R/2 which is relied upon by learned State counsel to submit that
undertaking has been given by petitioner, perusal of it does not reflect that
undertaking is of the year 2008 but under the heading, it is mentioned as
Chhattisgarh Pay Revision Rules, 2017 and further, some date is mentioned
of the year 2016, hence, on the face of document which is relied upon by
learned State counsel to submit that petitioner has given an undertaking
cannot be said to be the undertaking given at the time of fixation of pay in the
year 2008. Learned State counsel has not disputed submission of learned
counsel for petitioner that petitioner is a Class-IV employee.
6. Hon'ble Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq
Masih (White Washer) and Ors., reported in (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."
7. 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.
8. 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.,
reported in (2022) SCC OnLine SC 536 has further held that recovery from
the employees after long time to be unjustified.
9. Considering aforementioned facts fo the case, submission made by learned
counsel for the parties as also decisions of Hon'ble Supreme Court, order of
recovery of excess payment made from petitioner who is a Class - IV
employee is not sustainable. Accordingly, order Annexure-P/1, so far as it
relates to recovery of excess payment from petitioner is set aside.
10. Respondents are directed to refund the amount already recovered from
petitioner and to deposit the same in the account of petitioner within a period
of three months from the date of receipt of this order, failing which, amount
which is required to be refunded to petitioner shall carry interest at the rate
9% per annum
11. The writ petition is accordingly allowed in above terms.
Sd/-
(Parth Prateem Sahu)
JUDGE
Shayna
Digitally
signed
by
SHAYNA
KADRI
