1 2025:CGHC:4594-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 51 of 2025 Chhattisgarh State Dairy Co-Operative Federation Ltd. Through - Its Managing Director, Village - Urla, Post - B M Y Charoda, Police Station Charoda District - Durg, Chhattisgarh (Respondent No. 3) ... Appellant(s) versus 1 - Radhe Lal Sinha S/o Late B.R. Sinha Aged About 63 Years Retired Senior Technician Of C.G.S.D.C.F., R/o - Shiv Nagar, Ward No.9, Kumhari, Durg, Chhattisgarh (Petitioner) 2 - State Of Chhattisgarh Through - Its Secretary, Department Of Krshi, Pashudhan Vikash, Mantralaya, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, Chhattisgarh (Respondent No. 1) 3 - The Director Directorate Of Local Fund Audit, Block-1, 2nd Floor, Indravati Bhawan, Nava Raipur, Atal Nagar, Raipur Chhattisgarh (Respondent No. 2) ... Respondent(s) For Appellant(s) : Ms. Akanksha Jain, Advocate For Respondent(s) : Mr. Neeraj Choubey, Advocate For Respondent / State : Mr. Shashank Thakur, Dy. A.G. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.01.27 18:47:41 +0530 2 Judgment on Board Per Ramesh Sinha, Chief Justice 27.01.2025 1. Heard Ms. Akanksha Jain, learned counsel for the appellant. Also heard Mr. Neeraj Choubey, learned counsel for respondent No. 1 as well as Mr. Shashank Thakur, learned Deputy Advocate General for respondent / State. 2. This writ appeal is presented assailing the order dated 26.11.2024 passed by the learned Single Judge in WPS No. 1629 of 2923 (Radhe Lal Sinha vs. State of Chhattisgarh and Others), whereby, the writ petition filed by writ petitioner / respondent No.1 herein was allowed by the learned Single Judge and the recovery orders issued by the appellant herein have been set-aside with direction to refund the recovered amount to the writ petitioner forthwith. 3. The facts of the case according to the appellant are that W.P.(S) No. 1620/2023 was filed by the respondent/writ petitioner praying for setting aside the recovery order dated 25/01/2023 issued by the appellant based on the recommendation of respondent No. 2 after the retirement of the writ petitioner, by declaring the acts of the appellant to be bad in the eyes of law and further for issuance of direction to immediately release the entire retiral dues with penal interest along with other consequential dues, further prayer was that if the Hon'ble High Court found that the State Govt.'s 3 rules / circular application with the writ petitioner, then it is held that the writ petitioner is entitled for all such service benefits at par with State Govt. employees. Before the Hon'ble Single Bench, the case of the writ petitioner was that he is retired employee of Chhattisgarh State Dairy Co-operative Federation. The benefit of time scale pay was granted to him in the years 2011 and 2016 pursuant to the decision taken by the Board of Directors, whereas the orders of recovery have been issued in the year 2022. It was submitted that after retirement, the enhanced amount of gratuity was not paid to him, therefore, writ petitions were filed and direction was issued to appellant herein / respondent No. 3 to make payment of the enhanced amount of gratuity but the respondents / appellant instead of making payment of balance amount of gratuity, issued order of recovery. It was further submitted that he is Class-III employee and got retired from services on attaining the age of superannuation in the year 2018. Further it was submitted that the decision was taken by the Board of Directors on 24/09/2011 to grant the benefit of time scale pay to its employees and the same was executed on 01/09/2011. Another decision with regard to second-time scale pay was taken by the Board of Directors on 25/06/2016 and a specific order was issued in this regard by the appellant / respondent No. 3. From 2011 till 2022 no action was taken by the respondent authorities and the order of recovery against some of its employees were issued whereas the benefit was extended uniformly to all the 4 employees. As he is retired employees; the benefit was extended in the years 2011 and 2016; excess payment, if any, made to him petitioner could not be detected by the department for more than five years; he got retired from services, and it would be cumbersome for him petitioner to refund the amount, therefore, the orders of recovery may be quashed. 4. Learned counsel for the appellant submits that the reason that the impugned order is absolutely perverse, unjust, unreasonable and against the rules. The reason that the learned Single Bench erred in appreciating the fact that the Hon'ble Supreme Court in the case of Punjab and Haryana Vs. Jagdev Singh, AIR 2016 SC 3523 has not disturbed the propositions which were framed in the case of Rafiq Masih (White Washer), (2015) 4 SCC 334 except to the extent of proposition No.(ii) wherein it was observed that "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". In the said case, the officer had furnished an undertaking while opting for the revised pay scale and therefore he was bound by the same. Under those circumstances, it was observed that the employer could have initiated recovery. Accordingly, it was held that recovery on account of re-fixation of pay can be carried out. Further, the learned Single Bench has failed to appreciate the fact that the employer has a right to seek recovery in pursuance to Rule 65 of the Chhattisgarh Civil Services (Pension) Rules of 5 1976. The judgment passed in the case of Rafiq Masih (supra) is judgment passed in pursuance to the power exercised by the Hon'ble Supreme Court under Article 142 of the Constitution of India. Therefore, it cannot be considered as a law laid down by the Hon'ble Supreme Court. Law with regard to recovery has been laid down by the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417, under Article 136 of the Constitution of India. When the judgment in the case of Rafiq Masih was referred to a Larger Bench, the Larger Bench have observed that Article 136 of the Constitution of India is a corrective jurisdiction that vests discretion in the Supreme Court to settle the law. 5. Learned counsel for the appellant further submits that it would be evident that any amount which was paid or received without authority of law could always be recovered excluding certain exceptions such as extreme hardship. The employee has an obligation to repay the amount since otherwise it would amount to unjust enrichment. Therefore, who has played the fraud or who has misinterpreted would be of no consequence. Further, when revision of pay or extension of benefit of increments are granted, a large number of employees are involved. As a precautionary measure, the employees are asked to furnish an undertaking to the aforesaid effect. Furnishing of an undertaking is provided for in Rule 66 of the Rules of 1976. Reliance is placed on the Chhattisgarh Pay Revision Rules, 2017 (hereinafter referred to as 6 "the Rules of 2017") wherein a Circular dated 19/05/2017 was issued by the Finance Department, State of Chhattisgarh which has a statutory binding on the employees. Clause 12 of the said Circular indicates that at the time of extending the benefits in pursuance to revision of pay, a provision has been made for taking an undertaking from the Government servant to the effect that in case excess payment is made, he will refund the same. Therefore, once an employee furnishes an undertaking, he has to comply with the same and to refund the excess payment. The question of an undertaking was considered by the Hon'ble Supreme Court in the case of Jagdev Singh (supra) wherein the judgment passed by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) reported in (2015) 4 SCC 334 was distinguished. The Hon'ble Supreme Court while disposing of the matter observed that the principle enunciated in proposition no.(ii) namely recovery from retired employees, or employees who are due to retire within one year of the order of recovery, would not apply in the situation wherein an undertaking has been furnished by an employee. Since there is a provision of making recovery from post retiral claims pursuant to the Rules of 1976 as well as the Circular dated 19/05/2017 then it cannot be said that no recovery can be made. Further, as per the revised pay scale as fixed it is clear that the writ petitioner was receiving excess pay at the enhanced rate, further the writ petitioner in his petition has not challenged the re-fixation of pay, meaning thereby that he admits 7 that his pay was wrongly fixed and later on the same has been corrected by way of re-fixation of pay, as such the recovery based on the re-fixation of pay, which is not under challenge, is a legal one and cannot be set-aside. Also, when the pay was re-fixed as per the proper pay scale that the respondent / writ petitioner was entitled, it was necessary to recover the excess amount paid to the writ petitioner, hence, the recovery orders were issued, which were challenged by the writ petitioner without challenging the order of re-fixation of pay scale. 6. On the other hand, learned counsel for respondents opposes the submissions made by the learned counsel for the appellant in his appeal and submits that the learned Single Judge after considering all the aspects of the matter has rightly allowed the writ petition filed by the writ petitioner / respondent No.1 herein, in which, no interference is called for. 7. We have heard learned counsel for the parties and perused the impugned order and other documents appended with writ appeal. 8. From perusal of the impugned order, it transpires that the learned Single Judge has allowed the writ petition filed by the writ petitioner / respondent No.1 herein observing that with regard to undertaking, in the absence of any statutory rule, it cannot be held that undertaking given by the writ petitioners would be binding over them. Respondent No. 3 / appellant herein has not placed on the record rules etc, to establish that in the service rules or 8 revision of pay rules, there is any provision with regard to undertaking, therefore, in the absence of rules, it cannot be held that the undertaking, if any, given by the writ petitioners would be binding upon them. Admittedly, the writ petitioners are employees of respondent No. 3 and they were holding Class-l to Class-IV posts under respondent No. 3. The decision was taken by the Board of Directors on 24.09.2011 and pursuant to that an order was passed by respondent No. 3 to extend the benefit of time scale pay to the writ petitioners and the said benefit was extended. Later on, the Board of Directors again passed a resolution to extend the benefit of second time scale pay in favour of the writ petitioners and again specific order was issued by respondent No. 3 / appellant herein on 25.06.2016. Thus, it cannot be said that there was any misrepresentation on the part of the writ petitioners to get the benefit of time scale pay. The department detected the mistake after a lapse of 12 years from 2011 and after the lapse of 07 years from 2016. 9. Learned Single Judge has further relief upon the judgment passed by the Hon’ble Apex Court in the matter of State of Punjab vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 34 and has held that it is an admitted fact that the benefit was extended by the department itself. It is also not in dispute that all the writ petitioners have got retired from services. Lastly, taking into consideration the facts and law laid down by the Hon’ble Apex Court, the learned Single Judge concluded that the orders of 9 recovery are not sustainable in the eyes of law, therefore, the recovery orders issued by the respondent No. 3 / appellant herein was quashed. 10. Considering the submissions advanced by the learned counsel for the parties and the finding recorded by the learned Single Judge while allowing the writ petition filed by the writ petitioner / respondent No.1 herein, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error in the impugned order warranting interference by this Court. 11. Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet