1 2025:CGHC:10532 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2080 of 2024 1 - Smt. Bhanbati Sinhsar W/o Lt. Shri Rohit Kumar Sinhsar (Excise Constable) Aged About 55 Years R/o 256 Khaspara, Ward No. 14, Gram Bargari Nayapara, Kanker Charbhatha, Chhattisgarh. ...Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Excise, Mahanadi Bhawan, Atal Nagar, New Raipur, District : Raipur, Chhattisgarh 2 - Joint Director Treasury Accounts And Pension Raipur, Division, Raipur, District : Raipur, Chhattisgarh 3 - The Commissioner (Excise) Office Of The Commissioner (Excise) G S T Bhawan, Atal Nagar, Naya Raipur, District : Raipur, Chhattisgarh 4 - District Excise Officer Mahasamund, District : Mahasamund, Chhattisgarh 5 - Treasury Officer Mahasamund, District : Mahasamund, Chhattisgarh ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner(s) : Mr. Abdul Moin Khan, Advocate For State/Respondent(s) : Mr. Sabyasachi Choubey, Panel Lawyer Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 04/03/2025 1. By way of this writ petition, the petitioner has prayed for following reliefs: “10.1. That, the Hon'ble Court may kindly be pleased to set aside / quash the impugned recovery order dated 12.03.2024/ Annexure P2. 10.2. That, the Hon'ble Court may direct the 2 respondent authority to initiate pension benefit along with, gratuity, leave cash and other benefits along with interest to the petitioner.. 10.3. Any other relief or reliefs may also be granted to the petitioner which this Hon'ble court deems fit and proper in the facts and circumstances of the case.” 2. Learned counsel for the petitioner submits that husband of petitioner, namely, Lt. Rohit Kumar Sinhsar joined his service in year 1996 as contingency paid employee as Sales man in the wine shop run by the erstwhile Government of Madhya Pradesh. Thereafter, the petitioner's Husband was regularized in the post of Constable (Excise) vide order dated 08.08.2008. The petitioner's Husband while working as constable (excise) under the respondent died on 15.01.2021. Thereafter, his wife / petitioner is entitled to get the family pension, gratuity, leave cash and other dues, which have not been paid to the petitioner yet. A recovery order has been issued by the respondent no. 04 stating that the contingency paid employee prior to date of regularization have not been counted for retirement dues, and directed the petitioner to pay the recovery amount of Rs. 1,65,999/- vide order dated 12.03.2024 (Annexure P/2). The impugned order dated 12.03.2024 is bad in law as it has been issued after three years of death of the petitioner's husband. Even after lapse of three years since death of the petitioner's husband, monthly pension, gratuity, leave cash and other dues has not been paid yet. It is contention of learned counsel for petitioner that due to non-payment of funds, difficult situation has been created for the petitioner for her living, 3 hence, impugned order may be quashed and respondents be directed to release monthly pension, gratuity, leave cash and other dues in favour of petitioner. 3. On the other hand, learned State counsel opposes the submission made by learned counsel for petitioner and would submit that an undertaking was taken from the petitioner's husband at the time of fixation of pay in the year 2019, that excess payment made to the petitioner's husband on account of erroneous fixation will be recovered from the retiral dues. The undertaking was further to be effect that any such amount can be recovered from the legal heirs of the petitioner by way of deduction from the terminal dues, if required. Due to non-payment of amount paid in excess to petitioner’s husband, the family pension case of petitioner could not be finalized. It is further contention of learned State counsel that retiral dues have already been processed by respondents and pension payment order has been issued on 29.07.2024. 4. I have heard learned counsel for the respective parties and also perused documents annexed along with the record. 5. Admittedly, there is no dispute from either side of the parties that husband of petitioner joined his service in year 1996 as contingency paid employee as Sales man. Thereafter, the petitioner's husband was regularized on the post of Constable (Excise) vide order dated 08.08.2008. The petitioner's Husband while working as constable (excise) under the respondent died on 15.01.2021. Petitioner is entitled to get the family pension, 4 gratuity, leave cash and other dues, which have not been paid to the petitioner yet. A recovery order has been issued by the respondent no. 04 stating that the contingency paid employee prior to date of regularization have not been counted for retirement dues, and directed the petitioner to pay the recovery amount of Rs. 1,65,999/- vide order dated 12.03.2024 (Annexure P/2). 6. The issue involved in this present petition with respect to non- payment of retiral dues has already been decided by the Division bench of this Court in W.A. No. 88 of 2019 wherein, it has been held that : “5. Petitioner's services during his posting in the Contingency Paid Establishment were governed under the Madhya Pradesh Irrigation Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1977. Under Rule 4 (2) (b) of the said Rules, a contingency paid employee is accorded temporary status immediately upon completion of 5 years service. On representation by the Employees Union, the State Government issued a circular on 02.03.2005, which reads as follows: ^^NRrhlx<+ 'kklu foRr ,oa ;kstuk foHkkx ea=ky;] nkm dY;k.k flag Hkou] jk;iqj dekad 81@1056@fo@fu@04 jk;iqj] fnukad 2 ekpZ] 2005 izfr] 'kklu ds leLr foHkkx v/;{k] jktLo eaMy] fcykliqj] leLr foHkkxk/;{k] leLr ftyk/;{k] 5 NRrhlx<+ A fo"k; % dk;ZHkkfjr@vkdfLed fuf/k ls osru ikus okys deZpkfj;ksa dh fu;fer LFkkiuk esa fu;qfDr gksus ij vgZrknk;h lsok dk fu/kkZj.k A NRrhlx<+ ¼dk;ZHkkfjr rFkk vkdfLedrk ls osru ikus okys deZpkjh½ ias'ku fu;e] 1979 ds fu;e 6(3) esa ;g izko/kku gS fd fdlh vLFkk;h deZpkjh ds] fcuk fdlh O;o/kku ds fdlh Hkh fu;fer isa'ku ;ksX; in lafofy;u fd;s tkus ij] 1 tuojh] 1974 ls vkxs dh xbZ lsok] c'krsZ fd ,slh lsok 6 o"kZ ls de dh u gks] isa'ku ds fy; fxuh tk;sxh ekuksa fd ,slh lsok fdlh fu;fer in ij dh xbZ gksA^^ y? kqosru deZpkjh la? kksa }kjk jkT; 'kklu ds /;ku esa yk;k x;k gS fd dqN foHkkxksa }kjk vgZrkdkjh lsok dh x.kuk gsrq mDr fu;eksa ds rgr vLFkkbZ lsok dks 'kkfey ugha fd;k tk jgk gSA leLr foHkkxksa ls vuqjks/k gS fd os mDr izko/kkuksa dks vius v/khuLFk dk;kZy;ksa ds /;ku esa ykosa rFkk buds vkk/kkj ij vgZrkdkjh lsok dh x.kuk djrs gq, yafcr isa'ku izdj.kksa dk rRdky fujkdj.k djus gsrq funsZf'kr djsa A gLrk@& ¼lrh'k ik.Ms;½ milfpo] NRrhlx<+ 'kklu] foRr foHkkx” 6. In the above quoted circular, the State Government clearly directed that for counting the pensionable service, the period spent as temporary employee shall also be counted. The Division Bench of Madhya Pradesh High Court has also held in the matter of Shrikrishna Shrivastava vs State of M. P. and others, reported in (2003) 4 MPLJ 376, that period of temporary service rendered by a contingency paid employee shall be counted in the pensionable service. 7. In view of the circular issued by the State Government and the law laid down by the Division Bench of the M. P. High Court in Shrikrishna Shrivastava (supra), we are of the considered opinion that the petitioner's pensionable service should be counted from the date he completed 5 years service from 6 the date of initial appointment, as immediately upon completion of 5 years service in the Contingency Paid Establishment, the petitioner had acquired temporary status under Rule 4 (2) (b) of the Rules, 1977. It is ordered accordingly. Consequently, it is directed that the respondents shall recalculate the petitioner's pensionable service in accordance with this order and pay him the entire consequential benefits within a period of 3 months from the date of receipt of the certified copy of the order. There shall be no order as to interest on the arrears. 8. The writ appeal is allowed in the above stated terms.” 7. The judgement passed by Hon’ble Division Bench in Writ Appeal No. 88 of 2019 shall also be applicable in this case to the extent that the services rendered by the petitioner as daily wage employee prior to regularization shall also be counted for purpose of grant of retiral dues including pensionary benefit. 8. So far as the order of recovery is concerned, Hon’ble Supreme Court in the matter of State of Punjab & Ors. vs. Rafiq Masih (White Washer), reported in (2015) AIR SCW 501, has laid down certain situations under which the recovery is totally impermissible under the law. The situations as envisaged in the said judgement are reproduced below for ready reference : "(1) 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. 7 (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." 9. Plain perusal of the aforesaid situations would show that the situations would be applicable to those employees belonging to Class – III and Class - IV cadre, if they fall under the other situations as mentioned in the Judgment of Rafiq Masih (supra) other than the situations where it has been held that it is impermissible under law so far as the recovery being made from Class-IV and Class-III employees. 10. In the instant case, from the facts itself it is evidently clear that the case of the petitioner falls within the situations provided in said Judgment of Rafiq Masih (supra). Moreover, it is the case where the employee has died in harness and, if that be the situation, the legal heirs should not be made to suffer for any excess payment erroneously paid by the respondents. Therefore, the petitioner has the right for the entire retiral dues payable to him on the death of her husband i.e. the deceased employee. 8 11. In view of the aforesaid factual matrix and the legal position as it stands, the impugned order dated 12.03.2024 (Annexure-P/2) is liable to be and is hereby set-aside / quashed. 12. Respondents authorities are directed to ensure that the entire retiral dues payable to the petitioner, without insisting or enforcing the order of recovery which has been quashed by this Court, be released to the petitioner in accordance with the Rules governing the field, at the earliest. 13. With the aforesaid observation and direction, this writ petition is accordingly allowed. Sd/- (Amitendra Kishore Prasad) Judge Shayna