1 2025:CGHC:3973 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1661 of 2022 1 - Udal Ram Khatkar S/o Late Chand Ram Khatkar Aged About 63 Years Retired Manager, R/o Post Ramabai Ambedkar Nagar, Pamgarh, District Janjgir-Champa, Chhattisgarh. 2 - Tej Kumar Dewangan S/o H.L. Dewangan Aged About 63 Years R/o House No. R-54, Ward No. 01, Pragati Vihar Colony, Post Amleshwar, District Durg, Chhattisgarh. 3 - N.K. Dubey S/o Late Gajanand Dubey Aged About 66 Years R/o Shiv Park Colony, Near Petrol Pump, Bhothil, Amleshwar, District Durg, Chhattisgarh. ... Petitioners versus 1 - State of Chhattisgarh Through its Secretary, Department of Krshi, Pashudhan Vikash, Mantralaya, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, Chhattisgarh. 2 - Chhattisgarh State Dairy Co-Operative Federation Limited Through Its Authorized Officer, Village Urla, Post BMY Charoda, Police Station Charoda, District Durg, Chhattisgarh. 3 - The Director Directorate of Local Fund Audit, Block-1, 2nd Floor, Indravati Bhawan, Nava Raipur, Atal Nagar, Raipur, Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Petitioners : Mr. Neeraj Choubey, Advocate For State/Respondents No. 1 and 3 Mr. Saumitra Kesharwani, Panel Lawyer For Respondent No.2 : Mr. Om Prakash Sahu, Advocate YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.01.25 16:27:24 +0530 2 Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 22.01.2025 1. Heard Mr. Neeraj Choubey, learned counsel for the petitioner as well as Mr. Saumitra Kesharwani, learned Panel Lawyer appearing for the State/respondents No.1 and 3 and Mr. Om Prakash Sahu, learned counsel appearing for respondent No.2. 2. The instant writ petition is preferred by the petitioners under Article 226 of the Constitution of India with the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to issue writ (s) /order(s)/ direction(s) against and quash, set-aside the impugned order dated 10.02.2022 (Annexure-P/1) issued by the respondent No.1 and further quash the impugned letter dated 24.12.2021 (Annexure-P/2) issued by the respondent no.3 by declaring both are bad in the eyes of law. 10.2 That, the Hon'ble High Court may kindly be pleased to direct the respondent federation to immediately return the recovered amounts of the petitioners with interest @ 18%. 10.3 The Hon'ble High Court may kindly be please issuing the suitable direction to the respondent state to take action against the Managing Director of the respondent 3 federation, who had habitual to harass and deprived the retired person from his legal right without any justification. 10.4 That, the Hon'ble High Court may kindly be please to imposed the heavy cost of Rs. 20 laks upon the respondent federation on account of the harassment of the retired person without any justification and also awarded the cast of litigation arise due to illegality committed by the respondents. 10.5 The Hon'ble court may be pleased to issue writ/ writs/ order/ orders/ direction/ directions/ relief/ relief's, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case.” 3. The facts of the case, in a nutshell, are that the petitioner was working under the respondent authorities and after attaining the age of superannuation, the petitioners were retired on 31.03.2018, 31.08.2019 and 31.12.2016, respectively. After passing of 4 years from the date of retirement, respondent authorities have issued a recovery orders dated 10.02.2022 and 24.12.2021 respectively on account of excess payment by way of erroneous fixation and directed the petitioners to deposit the said recovery amount. 4. The contention of the petitioners is that the said amount of excess payment is made to the petitioners on account of an erroneous fixation made by the Department which otherwise they were not 4 entitled for. He further submits that since the petitioners are the employees working under respondent No.2 and that the entire recovery is being made from the retiral dues of the petitioners, which is impermissible under law. Further, before issuing recovery notice from the retiral dues the petitioners have never been called upon to give any explanation or any thing as such and for this reason also the order impugned deserves to be interfered with. The petitioner relied upon the judgment of Supreme Court in case of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc. reported in 2015 (4) SCC 334 and Thomas Denial Vs. State of Kerela reported in 2022 SCC OnLine SC 525. 5. On the other hand, learned State counsel submits that upon examining the pay fixation of the employees of the Dairy Federation, instruction was issued regarding examination and verification of pay fixation of the employees of the Dairy Federation, in which it has been found that excess payment has been paid to the petitioners. Learned State counsel fairly submits that petitioners have deposited the said amount before the respondent authorities. 6. Learned counsel appearing on behalf of respondent No.2 submits that it has been noticed by the respondent authorities after verification of the documents that the excess payment has been paid to the petitioners from 01.09.2011 to 30.10.11, which are 5 illegal, hence, the petitioners are liable to pay excess amount. He further submits that respondent No.2 is a Society and therefore, the writ petition is not maintainable. He would further contend that the petitioners ought to have approached the Registrar against the decision taken by respondent No.2. He would also contend that undertakings were given by the petitioners to the effect that excess payment of salary or amount of gratuity would be subject to recovery by the respondent authorities, as such, the writ petition is liable to be dismissed. 7. Having heard the contentions put forth on either side and on perusal of the record, admittedly the petitioners were working under the respondent authorities and they were not pay- fixation authority as per rules applicable to them, therefore, it cannot be said that the petitioners have committed any fraudulent act or was involved in pay fixation and there was no fault on the part of the petitioners. Therefore, from the retiral dues of the petitioners, no recovery can be made by the authorities. 8. With regard to undertaking, in the absence of any statutory rule, it cannot be held that undertaking given by the petitioners would be binding over them. Respondent No.2 has not placed on the record rules etc. to establish that in the service rules or revision of pay rules, there is any provision with regard to undertaking, therefore, 6 in the absence of rules, it cannot be held that the undertaking, if any, given by the petitioners would be binding upon them. 9. It is an admitted fact that the benefit was extended by the Department itself. It is also not in dispute that all the petitioners have got retired from services. 10. Given the aforesaid facts, it would be relevant at this juncture to refer to the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein it has been very emphatically held by the Supreme Court that in the given situations, the recovery would be impermissible under law. The judgment of Rafiq Masih (supra) was followed in Thomas Denial (supra) wherein it has been observed as under:- “13. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, 2015 (4) SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: 7 “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxxxxxxx 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 8 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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.” 9 14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.” 11. Taking into consideration the facts discussed above and the law laid down by the Hon’ble Supreme Court, in the opinion of this Court, impugned orders of recovery dated 10.02.2022 and 24.12.2021 are not sustainable in the eyes of law, therefore, recovery orders issued by the respondent authorities are hereby quashed. Any recovery made from any of the petitioners shall be refunded within a period of three months from the date of receipt of a copy of this order. 12. In the result, the writ petition stands allowed. There shall be no order as to cost(s). Sd/- Sd/- (Amitendra Kishore Prasad) Judge Yogesh