Chattisgarh High Court

Kansram Arya vs State Of Chhattisgarh on 24 January, 2025

                                                            1




                                                                       2025:CGHC:4477


        Digitally
        signed by
                                                                                       NAFR
        RAVI
RAVI    SHANKAR
SHANKAR MANDAVI
MANDAVI Date:
        2025.02.12


                               HIGH COURT OF CHHATTISGARH AT BILASPUR
        21:10:15
        +0530




                                              WPS No. 1523 of 2024

                     1 - Tarachand Patel S/o Late Shri Shantimani Patel Aged About 63
                     Years R/o Near Raigarh T.V. Tower, Sai Mangalam Road, Raigarh, P.S.
                     Chakradharnagar, Tah. And Distt. Raigarh, Chhattisgarh
                                                                               --- Petitioner
                                                      versus
                     1 - State Of Chhattisgarh Through Its Secretary, Department Of
                     Home/police, Mahanadi Bhawan, Mantralaya, Police Station And Post-
                     Rakhi, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh

                     2 - Inspector General Of Police (Igp) O/o Inspector General Of Police,
                     Near Nehru Chowk, Bilaspur Range, District : Bilaspur, Chhattisgarh

                     3 - Division Joint Director O/o Divisional Joint Director, Treasury-
                     Accounts And Pension, Bilaspur Division, District : Bilaspur,
                     Chhattisgarh

                     4 - Superintendent Of Police (Sp) O/o Superintendent Of Police,
                     Raigarh, District : Raigarh, Chhattisgarh
                                                                  --- Respondent(s)

1 - Sohanlal Sahu, S/o. Late Shri G.P. Sahu, Aged About 63 Years R/o. Sonianagar, Kotra Road, Raigarh, Ward No. 40, P.S. - City Kotwali, Tahsil And District - Raigarh (C.G.)

---Petitioner

Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Bhawan, Mantralay, Police Station And Post - Rakhi, Atal Nagar, Nawa Raipur, District - Raipur (C.G.)

2 - Inspector General Of Police (Igp), O/o. Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, Distt. Bilaspur (C.G.)

3 - Divisional Joint Director, O/o. Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, Distt. Bilaspur (C.G.)

4 - Superintendent Of Police (Sp), O/o. Superintendent Of Police, Raigarh, Distt. Raigarh (C.G.)

--- Respondent(s)

1 - Gregori Tirkey S/o Late Shri Poulus Tirkey Aged About 63 Years R/o Quartor No. 130, Ward No. 02, Kharsia, Mandirpara, Chodha, P. S. And Tahsil- Kharsia, District- Raigarh Chhattisgarh.

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Bhawan,mantralaya Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District- Raipur Chhattisgarh.

2 - Inspector General Of Police (I G P) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, District Bilaspur Chhattisgarh.

3 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur, Division, District- Bilaspur Chhattisgarh.

4 - Superintendent Of Police ( S P ) O/o Superintendent Of Police, Raigarh District- Raigarh Chhattisgarh.

--- Respondent(s)

1 - Telshush Ekka S/o Late Shri Joshef Ekka Aged About 63 Years R/o Quarter No.- 350, Vijaypur Amraiyapara, Boirdadar, Raigarh, P.S. Chakradhar Nagar, Tahsil And District Raigarh, Chhattisgarh.

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/ Police, Mahanadi Bhawan, Mantralay, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh.

2 - Inspector General Of Police (I.G.P.) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, District Bilaspur, Chhattisgarh.

3 - Divisional Joint Director O/o. Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, District Bilaspur, Chhattisgarh.

4 - Superintendent Of Police (S.P.) O/o. Superintendent Of Police, Raigarh, District Raigarh, Chhattisgarh.

--- Respondent(s)

1 - Kansram Arya S/o Late Shri A.S. Arya, Aged About 63 Years R/o Village- Alivara, Post- Kherhabazar, Tahsil- Doundi Lohara, P.S.- Devri And Distt-. Balod ( C.G.).

---Petitioner Versus

1 - State Of Chhattisgarh Through- Its Secetary, Department Of Home/ Police, Mahanadi Bhawan, Mantralay, Police Station And Post- Rakhi, Atal Nagar, Nawa, Raipur, District- Raipur ( C.G.).

2 - Inspector General Of Police ( Igp). O/o. Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, Distt. Bilaspur ( C.G.).

3 - Divisional Joint Director O/o. Divisional Joint Director, Treasury, Accounts And Pention, Bilaspur Division, Distt-. Bilaspur ( C.G.).

4 - Superintendent Of Police (Sp), O/o. Superintendent Of Police, Raigarh, Distt-. Raigarh ( C.G.).

--- Respondent(s)

1 - Jeevan Lal Shriwas S/o Late Shri Bhagat Ram Shriwas Aged About 63 Years R/o Near Panjri Plant, Ward No. 28, Raigarh P.S. Chakradhar Nagar, Tahsil And District Raigarh Chhattisgarh

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police Mahanadi Bhawan, Mantralay, Police Station And Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh

2 - Inspector Genral Of Police (Igp) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, District Bilaspur Chhattisgarh

3 - Divisional Joint Director O/o Divisional Joint Director, Treasury Accounts And Pension, Bilaspur Division, District Bilaspur Chhattisgarh

4 - Superintendent Of Police (Sp) O/o Superintendent Of Police Raigarh, District Raigarh Chhattisgarh

--- Respondent(s)

1 - Rajesh Xaxa S/o Late Shri Joshef Xaxa Aged About 63 Years R/o House No. 455, Prem Pratap Colony, Govt. High School, Chandmari, Raigarh, P.S. - City Kotwali, Tahsil And Distt. Raigarh (C.G.)

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/ Police, Mahanadi Bhawan, Mantralay, Police Station And Post- Rakhi , Atal Nagar, Nawa Raipur, District - Raipur (C.G)

2 - Inspector General Of Police (Igp), O/o Inspector General Of Police, Near Nehru Chowk , Bilaspur Range, Distt. Bilaspur (C.G.)

3 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, Distt. Bilaspur(C.G.)

4 - Superintendent Of Police (Sp) O/o Superintendent Of Police, Raigarh, Distt. Raigarh (C.G.)

--- Respondent(s)

1 - Diliram Uronw (Bhagat) S/o Late Shri Nathhuram Bhagat, Aged About 63 Years R/o Village- Pachpedhi, Post- Kotri, Mohalla- Dabripara, Tahsil And P.S. - Sarangarh, District- Sarangarh-Bilaigarh (C.G.)

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Bhawan, Mantralaya, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District- Raipur (C.G.)

2 - Inspector General Of Police (Igp) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, District- Bilaspur (C.G.)

3 - Divisional Joint Director, O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, District- Bilaspur (C.G.)

4 - Superintendent Of Police (Sp), O/o Superintendent Of Police, Sarangarh, District- Sarangarh-Bilaigarh (C.G.)

--- Respondent(s)

1 - Rajesh Das S/o Late Shri Haridas Aged About 63 Years R/o Ward No. 13, Hospital Colony, Baloda, P.S. And Tahsil - Baloda Distt. Jangir Champa Chhattisgarh

---Petitioner Versus

1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Bhawan, Mantralay, Police Station And Post - Rakhi, Atal Nagar, Nawa Raipur, District - Raipur Chhattisgarh

2 - Inspector General Of Police (Igp) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, Distt. Bilaspur Chhattisgarh

3 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, Distt. Bilaspur Chhattisgarh

4 - Superintendent Of Police (Sp) O/o Superintendent Of Police, Jangir Champa, Distt. Jangir Champa Chhattisgarh

--- Respondent(s)

(Cause-title taken from Case Information System) For Petitioner(s) : Mr. Abhishek Pandey, Advocate For State/Respondent(s) : Mr. Vivek Sharma, Additional AG

Hon'ble Shri Justice Amitendra Kishore Prasad

Order on Board

24/01/2025

1. Heard Mr. Abhishek Pandey, learned counsel for the respective

petitioners as well as Mr. Vivek Sharma, Additional Advocate

General for the State/respondent/s.

2. Since common question of law and facts are involved in these

writ petitions is whether after retirement of the petitioners,

recovery of amount paid in excess during the service period can

be recovered by the respondents State authorities.

3. As in the batch of Writ Appeals, common issue arises for

determination is whether recovery of excess amount of payment

made to a Class-III employee can be recovered when an

employee has furnished an undertaking at the time of applying

revised pay scale under the Revision of Pay Rules, when the

undertaking is not enabled or contemplated under the Rules,

which in the present case is the Chhattisgarh Revision of Pay

Rules, 2009 and the Chhattisgarh Revision of Pay Rules, 2017

(hereinafter referred to as 'the Rules, 2009' & Rules, 2017'

respectively) by the Division Bench of this Court in WA No.246 of

2020 (Annexure P/3) along with connected matters as well as WA

No.265 of 2020 (Annexure P/4) by the another Division Bench of

this Court and the coordinate Benches also passed the same

order in same line.

4. These Writ Petitions were filed by the retired employees posted

as Police Constables/Head Constables/Sub-Inspectors/Assistant

Sub-Inspectors holding Class-III posts in the Police Department,

challenging the order for recovery issued by the respondent No.3

against the respective petitioners and recovered the amount from

retiral dues of respective petitioners and also withheld some

retiral dues i.e. Sewa Samman Nidhi & Arrears of 7 th Pay Scale of

petitioners.

5. Learned counsel for the petitioners submits that all the writ

petitions are squarely covered under the law laid down by the

Hon'ble Supreme Court in the matter of State of Punjab and

Others Vs. Rafiq Masih (White Washer) and Others reported in

(2015) 4 SCC 334 for quashing the recovery as the same was

made on account of error on the part of the respondent - State

Government without there being any misrepresentation or false

statement on the part of the petitioners.

6. Learned counsel for the petitioner further submits that in all these

matters the recovery order has been passed after retirement or

prior to retirement of the employees and the issue involved in this

matter has already been settled by the Division Bench of this

Court. WA No.246 of 2020 (Annexure P/3) along with connected

matters as well as WA No.265 of 2020 (Annexure P/4) by the

another Division Bench of this Court and the coordinate Benches

also passed the same order in same line, as such, nothing is

required to be considered between the parties.

7. The State counsel also not opposed the submissions made by

learned counsel for the petitioners.

8. I have heard learned counsel for the parties and perused the

record.

9. From perusal of records it is evident that the petitioners retired

from services after attaining age of superannuation. At this

juncture it would be relevant to notice the judgment of the Hon'ble

Supreme Court in case of Rafq Masih (Supra) where in Supreme

Court has clearly held certain situations under which recoveries

would become impermissible. Paragraph 18 of the said judgment

is reproduced herein under:-

"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 fve 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."

10. The impugned recovery orders were passed before few days of

after the retirement of the petitioners for recovery of amount from

their retiral dues. Placing reliance upon the case of Rafq Masih

(supra) the Hon'ble Supreme Court in case of Thomas Daniel

Vs. State of Kerala and others reported in 2022 SCC OnLine

536 has quashed the recovery of excess amount paid to the

petitioner and observed in paragraph 9 as under:-

"9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess."

11. So far as undertaking given by the employees/petitioners is

concerned, the Division Bench of this Court has consider this

aspect in WA.265 of 2020 in the matter of State of Chhattisgarh

and others vs. Roshan Lal decided on 09.12.2021 and held in

para 14 and 15 as under :

"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).

15. A perusal of the above paragraphs would go to show that the Division Bench has recorded that in Pramila Mandavi (supra), this Court did not consider as to whether the Revision of Pay Rules, 2009 enables the authorities to obtain an undertaking, permitting the employer to make recovery and also did not advert to the effect of judgment in the case of Rafiq Masih (supra) laying down that no recovery shall be effected from employees belonging to Class-III and Class-IV service (or Group-C and Group-D service). It was also noted that even if it is held that an undertaking would operate in absence of an enabling provision under the Rules to take an undertaking whereby the employee undertakes to refund back any excess payment, no recovery can be effected from the employees belonging to Class-III and Class-IV service (or Group- and Group-D service) in terms of Rafiq Masih (supra) and also in case the amount sought to be recovered had been continued to be paid for a period in excess of 5 year."

12. Considering the aforesaid view already taken and decided by the

Division Bench of this Court, I am fortified by the view taken by

the Division Bench and the undertaking given by the employee

would of no consequence.

13. The petitioners are class III employees. Excess amount was not

paid on account of any misrepresentation or fraud of the

petitioners and the recovery from retiral dues is improper and not

in accordance with law. The impugned recovery orders were

issued are liable to be quashed. Hence, in the light of above

authoritative pronouncement of the Hon'ble Supreme Court

coupled with the facts of these Writ Petitions this Court has no

hesitation to hold that the same deserve to be allowed.