1 2025:CGHC:44982 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3274 of 2023 1 - Dileshwar Pradhan S/o Shri Durga Prasad Pradhan Aged About 37 Years Posted As Con/390, Posted At - 9th B N (Dcoy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 2 - Sanjai Pradhan S/o Shri Virendra Pradhan Aged About 33 Years Posted As Con/505, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 3 - Anil Kurry S/o Shri Kukram Aged About 30 Years Posted As Con/275, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 4 - Krishna Kumar Suman S/o Shri Narayan Lal Suman Aged About 31 Years Posted As Con/596, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 5 - Amit Kumar Kurre S/o Shri Narad Ram Kurre Aged About 30 Years Posted As Con/293, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 6 - Bhola Ram Rajwade S/o Shri Shukam Ram Rajwade Aged About 35 Years Posted As Con/393, Posted At - 9th B N (D Coy) C.G. Armed Digitally signed by RAGHVENDRA JAT 2 Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 7 - Bhuneshwar Prasad Mahilane S/o Shri Set Ram Mahilane Aged About 33 Years Posted As Con/222, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 8 - Ram Saran Singh S/o Shri Chandra Kumar Aged About 40 Years Posted As Con/348, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 9 - Dinesh Kumar Sahu S/o Shri Tularam Sahu Aged About 37 Years Posted As Con/455, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 10 - Krishna Bhagat S/o Shri Jogiram Bhagat Aged About 32 Years Posted As Con/227, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh 11 - Ahsan Khan S/o Shri Fariyad Khan Aged About 34 Years Posted As Tc/922, Posted At - 9th B N (D Coy) C.G. Armed Forces, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through- The Secretary, Home And Police Affairs, Mahanadi Bhawan, New Mantralay, District : Raipur, Chhattisgarh 2 - The Director General Of Police Police Head Quarter, District : Raipur, Chhattisgarh 3 3 - The Commandant 9th B N C. G. Armed Force Karli, District : Dantewada, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shayon Kar, Advocate. For Respondent(s)/State : Mr. Devesh G. Kela, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 03/09/2025 1. By way of this petition, the petitioner has prayed for following reliefs:- “A. The Hon'ble court may be pleased to call for the entire records pertaining to the case of petitioner. This Hon'ble Court may kindly be pleased to set aside the Order dated 11.10.2022 passed by the respondent no. 3 (ANNEXURE P-1) with all consequential benefits. C That, Hon'ble Court may kindly be pleased to direct the respondent authorities to provide the benefit of special allowance granted by the Respondent No. 1 wef 17.07.2009 (Annexure P-2) and remit back the recovered amount. D. Any other relief, which Hon'ble court deems fit and proper of the case, may be allowed. E. Cost of the petition may also be given.” 2. Learned counsel for the petitioners respectfully submits that the 4 impugned order dated 11.10.2022 (Annexure P-1) passed by respondent No. 3 is wholly illegal, arbitrary and violative of the principles of natural justice, in as much as it seeks to recover amounts without affording any opportunity of hearing or issuing prior notice to the petitioners, who are merely Class-III employees. It is contended that respondent No. 1, vide notification dated 17.07.2009 has granted Naxal Duty Allowances ranging from 15% to 20% to employees/officers of Police and Armed Forces posted in specified naxal-affected areas as per Schedule ‘A’ and ‘D’, and the petitioners are discharging their duties in such areas, their headquarters itself being situated at Dantewada, a notified core naxal-affected district. Pursuant to the said notification, the petitioners’ company has been duly extended the benefit of Naxal Duty Allowances, and accordingly, the recovery initiated against them is ex facie illegal and unsustainable. It is further submitted that the alleged excess payment was never a result of any misrepresentation, fraud, or concealment on the part of the petitioners, who had no knowledge that the amount being credited was in excess of their entitlement; rather, the same has arisen solely due to misinterpretation of the order dated 17.07.2009 by the concerned authorities, whose negligence and inaction has led to the present situation. Counsel emphasizes that in the absence of any fault 5 attributable to the petitioners, recovery of the so-called excess amount would not only cause grave financial hardship to them but would also be wholly inequitable, arbitrary, and in contravention of the settled principle that where the effect of recovery on the employee outweighs the employer’s right to recover, such recovery must be held iniquitous and impermissible in law. He contended that the issue with regard to recovery of the excess payment made to the employees in particular, the Class III and Class IV employees has been considered by the Hon’ble Supreme Court in case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 and the Hon’ble Supreme Court has held that the recovery of excess payment made to the Class III and Class IV employee to be impermissible. He also contended that following the decision in the case of Rafiq Masih (Supra), Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has also allowed the Appeal filed by the appellant therein. He further submits that no recovery has been made from the petitioner. 3. On the other hand, learned counsel for the Respondents/State submits that since wrong fixation has been mentioned in the service book as such it is required to be recovered from the petitioner as excessive amount has been paid which is apparent from the fixation 6 of pay scale itself. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. The Hon’ble Supreme Court in the case of Rafiq Masih (Supra) has 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. 7 (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.” 6. Hon'ble Supreme Court in the case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. (2009) 3 SCC 475 considering the issued with regard to recovery of excess payment made to the petitioner therein has held as under : “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (A) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) 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. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to 8 mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 7. In a recent judgment, the Hon’ble Supreme Court in the matter of Jogeswar Sahoo & Ors vs. The District Judge, Cuttack & Ors reported in 2025 SCC Online SC 724 has reiterated and confirmed the dictum laid by the Hon’ble Supreme Court in the matter of Rafiq Masih (supra) and Thomas Daniel (supra) holding that recovery cannot be made from the employee in case no fraud or misrepresentation was made by the employee. 9 8. In light of the above authoritative judgments, facts of the present case are to be examined. The alleged excess payment was not made by any misrepresentation or fraud on the part of the petitioners. In the considered opinion of this Court, the case of the petitioners is squarely covered by the decision in the case of Rafiq Masih (supra), Thomas Daniel (supra) and Jogeswar Sahoo (supra). Therefore, the impugned order dated 11.10.2022 (Annexure P/1) is hereby set aside. 9. With the aforementioned observation, writ petition is allowed. 10. If any amount is recovered pursuant to the impugned recovery order, the same shall be refunded to the petitioners within a period of 90 days from the date of receipt of a copy of this order, failing which, it shall carry interest at the rate of 7% per annum. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat