1 2025:CGHC:4771 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1802 of 2023 Rajesh Kumar Gupta S/o Late L.M. Gupta Aged About 63 Years Retired Dairy Postal Assistant Of C.G.S.D.C.F., R/o Chopra Colony, Mahavir Nagar, P.O. Ravigram, Raipur, Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Krshi, Pashudhan Vikas, Mantralaya, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, Chhattisgarh. 2 - The Director Directorate Of Local Fund Audit, Block-1, 2nd Floor, Indravati Bhawan, Nava Raipur, Atal Nagar, Raipur, Chhattisgarh. 3 - Chhattisgarh State Dairy Co-Operative Federation Ltd. Through Its Managing Director, Village Urla, Post BMY Charoda, P.S. Charoda, District : Durg, Chhattisgarh ... Respondents (Cause title taken from Case Information System) For Petitioner : Shri Neeraj Choubey, Advocate. For Respondent/State : Shri Saumitra Kesharwani, PL. For respondent No.3 Shri Om. P. Sahu, Advocate. GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2025.02.10 10:33:00 +0530 2 Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 27/01/2025 1. Heard Shri Neeraj Choubey, learned counsel for the petitioner as well as Shri Saumitra Kesharwani, learned Panel Lawyer for the State and Shri Om. P. Sahu, learned counsel for the respondent No.3. 2. By way of this writ petition, the petitioner has prayed for following reliefs: (i)That, this Hon'ble Court may kindly be pleased to issue writ (s) /order(s)/ direction(s) against and quash, set-aside the impugned recovery letter dated 17.02.2023 (Annexure-P/1) issued by the respondent No.3 and further quash the impugned calculation sheet (Annexure-P/2) prepared by respondent no. 2 by declaring both are bad in the eyes of law and further direct the respondents to immediately released the remaining party of the gratuity amount of Rs. 3,3,211/- with penal interest @ 18% P.A along with other consequential dues. (ii)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 federation, who had habitual to harass and deprived the retired person from his legal right without any justification. (iii)That, the Hon'ble High Court may kindly be please to imposed the heavy cost of Rs. 20 lakhs 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. 3 (iv)That, if the Hon'ble High Court found that, the state government rules/circular applicable with the petitioner, then it is hold that, the petitioner is entitled for all the services benefit at par with state government employees as such the petitioner is entitled for the pay scale as par recommendation of 7th pay commission and also entitled to worked up to age of 62 years and kindly may be pleases to pass the order accordingly. (v)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. Learned counsel for the petitioner submits that the petitioner was working as Dairy Dak Assistant in the office of respondent No.3, he retired on 30.04.2020 and thereafter vide impugned order dated 17/02/2023, i.e. near about three years of his retirement an order of recovery has been issued alleging that the petitioner has been given pay scale and grade salary for which he was not entitled for and as such recovery to the tune of Rs.6,47,900/- is to be recovered from the petitioner. Learned counsel for the petitioner further submits that due to said recovery order the entire retiral dues has been withheld by the respondent authorities and till date neither gratuity nor leave encashment and amount of Dearness Allowance has been granted and the same has been withheld by the respondent authorities. Learned counsel for the petitioner submits that the petitioner has not made any misrepresentation in getting the pay scale or the salary to which the respondents are alleging as such the recovery order is bad in eyes of law. Further, the petitioner was retired on 30.04.2020 and 4 thereafter near about three years recovery notice has been issued after his retirement and therefore that too it is not in accordance with law. The petitioner cannot be held liable for recovery of amount to the tune of Rs.6,47,900/-. 4. On the other hand, learned counsel for the respondent No.3 submits that the order of recovery has been rightly issued on the basis of the recommendation made by the respondent No.2/Director, Directorate of Local Fund Audit as such, it can be issued even after retirement of the petitioner and there is no law restraining the respondent from recovering the amount from the petitioner if the amount is liable to be recovered from the petitioner. The learned counsel submits that according to order passed by the Single Bench in WPS No.6218 of 2023 and other connected matter and further considering the law laid down by the Hon’ble Supreme Court in the matter of State of Punjab vs. Rafiq Masih and others reported in (2015) 4 SCC 334, the recovery after retirement cannot be allowed and as such the petition is liable to be allowed. The relevant para 18 is quoted as 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: 5 (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.” 5. Considering the aforesaid aspect of the matter and further considering the law laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (supra), I am of the considered opinion that the amount directed for recovery is not in accordance with law. There is no such evidence to show that the petitioner has made any misrepresentation and that too after near about three years of retirement, it cannot be recovered. Accordingly, the impugned order is quashed. Learned counsel for the petitioner at this stage submits that due to this order of recovery, the petitioner 6 is not being given benefit of gratuity, leave encashment and amount of Dearness Allowance, as such some direction may be issued to respondents to pay the aforesaid amount to the petitioner forthwith. 6. Considering the aforesaid aspect of the matter, the respondents are directed to pay the amount lying due to the petitioner within a period of 90 days. If the due amount is not paid to the petitioner within 90 days, the petitioner is entitled for interest at the rate of 6% per annum from the date of retirement of the petitioner till the actual payment is disbursed. 7. Accordingly, with the aforesaid observation, this petition is disposed of. Sd/- (Amitendra Kishore Prasad ) Judge gouri