Chattisgarh High Court

Alok Kumar Rai vs The State Of Chhattisgarh on 20 January, 2025

                                                    1




                                                                   2025:CGHC:3779
                                                                              NAFR

                          HIGH COURT OF CHHATTISGARH AT BILASPUR

                                        WPS No. 2298 of 2020

                    1. Alok Kumar Rai S/o Late Yogendra Rai, Aged About 62 Years
                        Retired Laboratory Technician, Vivekanand Government Post
                        Graduate College, Manendragarh, District Koria Chhattisgarh,
                        Civil And Revenue District Koria Chhattisgarh., District :
                        Koriya (Baikunthpur), Chhattisgarh
                                                                        ... Petitioner
                                                versus
                    1. The State Of Chhattisgarh Through The Principal Secretary,
                        Department Of Higher Education, Mantralaya, Mahanadi
                        Bhawan, New Raipur, District Raipur Chhattisgarh.
                    2. Under Secretary, Government Of Chhattisgarh, Higher
                        Education Department, Mahanadi Bhawan, Naya Raipur,
                        Raipur, District Raipur Chhattisgarh.
                    3. The Commissioner/ Director, Higher Education, Government
                        Of Chhattisgarh, Government Science College Campus,
                        Raipur, District Raipur Chhattisgarh.
                    4. The    Principal, Vivekanand Government Post Graduate
                        College, Manendragarh, District Koriya (Baikunthpur) [CG]
                    5. Joint Director, Treasury And Accounts, Directorate, Near
                        Gandhi Chowk, Ambikapur, District Surguja (Ambikapur) [CG]
                                                                    ... Respondents

For Petitioner : Mr. Divyanand Patel, Advocate. Digitally NISHA signed by DUBEY NISHA DUBEY For State/Respondents :Mr. Santosh Kumar Soni, PL.

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 20/1/2025

1. Grievance of petitioner in this writ petition is with regard to

recovery of Rs.2,72,150/- from his retiral dues on the ground

of excess payment made to him, during his service tenure.

2. Learned counsel for petitioner submits that petitioner stood

retire as Laboratory Technician after attaining age of

superannuation on 30.11.2018. Respondent No.4 issued

order dated 24.2.2020 for recovery of Rs.2,72,150/- allegedly

paid in excess to him during his service period. Petitioner

was a Class-III employee and hence after his retirement, no

recovery can be made from his retiral dues. Before

retirement, the 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 him asking that the amount paid in excess has to be

recovered from him. 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 due to typographical

mistake in mentioning of figure of salary, petitioner has been

paid excess amount of salary from July, 2014 to 30.11.2018

and therefore, the same being loss to the public ex-chequer is

to be recovered. 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. This Court vide order dated 15.7.2020 passed an interim

order in favour of the petitioner, staying the effect and

operation of recovery notice dated 24.2.2020 (Annexure P-1)

till the next date of hearing.

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 the recovery 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 retired from

service after attaining the age of superannuation on

30.11.2018 and thereafter, the order of recovery from retiral

dues of petitioner has been issued on 24.2.2020. It is also

not the case of the respondents that petitioner has received

excess payment by practicing fraud or by making

misrepresentation. 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-9 has held 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."

11. In the case at hand, perusal of undertaking given by petitioner

would show that it was submitted by petitioner at the time of

getting benefit of revision of pay for recovery of any excess

amount, if any paid to him. This undertaking is in a proforma

that simply mentions for refund of over payments, if any

made, on account of incorrect fixation. However, the amount

paid in excess to petitioner and sought to be recovered by the

order impugned, is for the period of July 2014 to 2018.

Typographical error stated to have been committed by

respondent is in July 2014. No undertaking was given by the

petitioner for this period. The undertaking as it appears from

the reply filed by respondent/State that at every stage of pay