1 2025:CGHC:7258 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 118 of 2023 1 - Shyam Rao Borkar S/o Chindu Ji Borkar Aged About 63 Years R/o Rajendra Nagar, Bilaspur, District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Home, Mahanadi Bhavan, Mantralaya, Atal Nagar, Naya Raipur, District : Raipur, Chhattisgarh. 2 - Joint Director Treasury, Accounts And Pension, Bilaspur Division, District : Bilaspur, Chhattisgarh. 3 - District Treasury Officer Bilaspur, District : Bilaspur, Chhattisgarh. 4 - Inspector General Of Police Bilaspur Division, District : Bilaspur, Chhattisgarh. 5 - Senior Superintendent Of Police Bilaspur, District : Bilaspur, Chhattisgarh. 6 - District Treasury Officer Bilaspur, District : Bilaspur, Chhattisgarh. ... Respondent(s) Digitally signed by RAGHVENDRA JAT 2 For Petitioner(s) : Mr. Abhishek Pandey, Advocate and Ms. Swati Rani Saraf, Advocate. For Respondent(s)/State : Mr. Ajit Singh, G.A. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 10/02/2025 1. By way of this petition, the petitioner has prayed for following relief:- “10.1 That, this Hon'ble Court may kindly be pleased to allow the writ petition and be pleased to make an order to direct the concerned respondents to grant the payment of Rs. 10,14,552/ alongwith the earned leave of 89 days together with the payment of interest @ 10% per annum from which the petitioner was legally bound to get it and since the amount has been withheld illegally by the department and respondents are found responsible for the commission of the same. 10.2 Any other relief which this Hon'ble Court deems fit and proper may also be passed in favour of the petitioners together with cost of the petition.” 2. Learned counsel appearing for the petitioner would submit that the petitioner has filed this writ petition against the order of recovery dated 07.10.2022 (Annexure P/2) issued by the respondent No. 2 by which the petitioner has been directed to pay the amount of Rs. 84,369/- which is paid in excess to the 3 petitioner who retired from the post of Head Constable on 31.07.2022. 3. From the documents, it is clear that the respondent No. 2 after the retirement of the petitioner has issued an order of recovery of excess payment to the tune of Rs. 84,369/- showing the excess pay to the petitioner on the post of Head Constable. This order has been assailed by the petitioner by filing the instant writ petition under Article 226 of the Constitution of India. 4. Learned counsel for the petitioner would submit that so called erroneous excess payment on the default of their official staff and finally respondent No. 2 issued the order impugned for recovery of so called excess payment to the tune of Rs. 84,369/- without there being any prior notice or intimation He would further submit that recovery of alleged excess amount is against the law in view of the decision rendered by the Hon’ble Supreme Court in the matter of State of Punjab vs. Rafiq Masih (While Washer), reported in 2015 (4) SCC 334. He would further submit that if the amount of Rs. 84,369/- was directed to be refunded, it will be irreparable loss to the petitioner as it would amount to unjust, therefore, the recovery order dated 07.10.2022 (Annexure P/2) kindly be quashed. 5. On the other hand, learned State counsel would submit that since the illegal excess payment has been made to the petitioner, 4 therefore, the recovery order dated 07.10.2022 (Annexure P/2) is justified and does not call for any interference. 6. I have heard learned counsel for the parties and perused the record. 7. The State has filed their return wherein they have stated that recovery has been done in accordance with law laid down by Hon'ble Supreme Court in the case of High Court of Punjab and Haryana vs. Jagdeo Singh, reported in (2016 14 SCC wherein it has been held in para 11 as follows. “11. The principle enunciated in proposition (II) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking”. 8. The facts projected by the petitioner in this case and the facts reflected from the judgment of High Court of Punjab and Haryana vs. Jagdeo Sing (supra) are all together different as this case relates to judicial officer whereas in the present case, the petitioner was working as Constable and subsequently he was promoted to the post of H e a d C o n s t a b l e which is 5 a Class-III post. Hon'ble the Supreme Court in the subsequent judgment of Thomas Deanial Vs. State of Keralam 2022 SCC Online SC 536 has observed as under. “13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 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 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “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 6 employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxxxxxxxx 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: (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. 9. Now coming to the facts of the case, it is not in dispute that the petitioner retired from services as Head Constable, which is Class III therefore, recovery amount is against the law laid down by Hon’ble Supreme Court . 10. In the result, the writ petition succeeds and is accordingly allowed. The recovery order dated 07.10.2022 (Annexure P/2) issued by the respondents is quashed, State is directed to refund 7 the recovered amount and also directed to release the pension and other retiral dues of the petitioner within a period of one month from the date of receipt of a copy of this order. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat