1 2025:CGHC:3761 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5131 of 2022 Vishnu Prasad Tiwari S/o Late Shri T. P. Tiwari, Aged About 65 Years, R/o Krishna Kripa Bhawan, In Front of Raj Kumar College, G. E. Road, Raipur, P. S. Saraswati Nagar, Tahsil and District Raipur Chhattisgarh ... Petitioner versus 1 - State of Chhattisgarh Through Its Secretary, Department of Agriculture and Bio- Technology, Mahanadi Bhawan, Mantralay, Police Station and Post- Rakhi, Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh 2 - Divisional Joint Director O/o Divisional Joint Director, Treasury Account And Pension, Near Ghadi Chowk, Raipur, District Raipur Chhattisgarh 3 - Divisional Joint Director O/o Divisional Joint Director, Department of Agriculture, Shastri Chowk, Raipur, District Raipur Chhattisgarh 4 - Deputy Director O/o Deputy Director, Department of Agriculture, Collectorate Campus, Raipur, District Raipur Chhattisgarh ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Abhishek Pandey, Advocate For Respondents : Mr. Ajit Singh, Government Advocate Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 21.01.2025 1. Heard Mr. Abhishek Pandey, learned counsel for the petitioner as well as Mr. Ajit Singh, learned Government Advocate, appearing for the State/respondents. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.01.27 19:33:17 +0530 2 2. The instant writ petition is preferred by the petitioner under Article 226 of the Constitution of India with the following relief(s):- “(i) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case of the petitioner before this Hon'ble Court for its kind perusal. (ii) That this Hon'ble Court may kindly be pleased to set aside/quash the impugned recovery order of Petitioner dated 31.10.2020 issued by Respondent No. 4. Deputy Director, Agriculture, Raipur (Annexure P/2). (iii) That, this Hon'ble Court may kindly be pleased to direct respondent authorities to refund the whole deducted amount to the Petitioner with interest of 10% which has been deducted from the petitioner due to impugned recovery order dated 31.10.2020 issued by Respondent No. 4 Deputy Director, Agriculture, Raipur. (iv) That this Hon'ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and agony. harassment and hardships suffered by him as also cost of the litigation.” 3. The facts of the case, in a nutshell, are that the petitioner was working on the post of Assistant Grade-I under the office of 3 respondent No. 4 i.e. Deputy Director, Agriculture, Raipur and after attaining the age of superannuation, the petitioner was retired on 30.06.2020. After passing of 4 months from the date of retirement, respondent No.4 has issued a recovery order dated 31.10.2020 on account of excess payment by way of erroneous fixation and directed the petitioner to deposit the said recovery amount. 4. The contention of the petitioner is that the said amount of excess payment is made to the petitioner on account of an erroneous fixation made by the department which otherwise he was not entitled for. According to the petitioner, since he is a Class-III category employee and that the entire recovery is being made from the retiral dues of the petitioner, that which is impermissible under law. Further, before issuing recovery notice from the retiral dues the petitioner has never been called upon to give any explanation or any thing as such and for this reason also the order impugned deserves to be interfered with. The petitioner relied upon the judgment of Supreme Court in case of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc. reported in 2015 (4) SCC 334 and Thomas Denial Vs. State of Kerela reported in 2022 SCC OnLine SC 525. He further placed reliance in the judgment passed by Division Bench of this Court in Writ Appeal No.264 of 2020; parties being State of Chhattisgarh and others v. Labha Ram Dhruv and analogous cases decided on 22.09.2021 in support of his contention. 4 5. On the other hand, learned State counsel submits that at the time of retirement, the petitioner himself has given undertaking to the effect that in case, any excess payment is made to him, then the same would be recoverable from him. He further submits that the petitioner is bound by the said undertaking and therefore, the petitioner cannot be exonerated from recovery of excess payment which has been pointed out by the office of the Divisional Joint Director, Treasury, Accounts and Pension, Raipur at the time of scrutiny / verification of the pension case of the petitioner. Insofar as the reliance placed by the petitioner in the matter of Rafiq Masih (supra) etc. and Thomas Denial (supra) are concerned, he has submitted that the same does not come to the rescue of the case of the petitioner for the reason that in the matter of High Court of Punjab and Haryana and others Vs. Jagdev Singh reported in AIR SC 2016 3523, the Hon'ble Supreme Court has held 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. It has further been held that the officer furnished an undertaking while opting for the revised pay scale, and then he is bound by the undertaking, meaning thereby that in case the officer furnishes an undertaking to the effect that he would be liable to refund any excess payment made to him, then the employee is bound by the undertaking. In the case at hand, the petitioner has already given 5 undertaking while he was in service to the effect that any excess payment is paid to him on account of wrong fixation of pay, the same would be recoverable as land of revenue. Thus, the impugned recovery is just, proper and legal and does not suffer from any illegality or infirmity. As such, entire writ petition deserves to be dismissed being sans merit. 6. Having heard the contentions put forth on either side and on perusal of the record, admittedly the petitioner was working as Assistant Grade-I under the respondent No.4 and he was not pay- fixation authority as per rules applicable to them, therefore, it cannot be said that the petitioner has committed any fraudulent act or was involved in pay fixation and there was no fault on the part of the petitioner. Therefore, from the retiral dues of the deceased employee, no recovery can be made by the State Authorities. 7. Given the aforesaid facts, it would be relevant at this juncture to refer to the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein it has been very emphatically held by the Supreme Court that in the given situations, the recovery would be impermissible under law. The judgment of Rafiq Masih (supra) was followed in Thomas Denial (supra) wherein it has been observed as under:- “13. In State of Punjab and Others v. Rafiq Masih (White Washer) and Others, 2015 (4) SCC 334 wherein this court examined the 6 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 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 employee's right would outbalance, 7 and therefore eclipse, the right of the employer to recover. xxxxxxxx 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 8 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.” 14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.” 8. Now coming to the facts of the case, it is not in dispute that the petitioner, who was working as Assistant Grade-I, which is a Class III employee and low paid employee, therefore, recovery amount is against the law laid down by Hon’ble Supreme Court in aforementioned cases. 9. In the result, the writ petition succeeds and is accordingly allowed. The impugned order of recovery dated 31.10.2020 (Annexure P/2) issued by the respondent No.4 is quashed. The 9 said amount, if deducted, be refunded to the petitioner within a period of four weeks from the date of receipt of a copy of this order. 10. With these observations and directions, the writ petition is allowed. No order as to costs. Sd/- (Amitendra Kishore Prasad) Judge Yogesh