1 2025:CGHC:3345 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7755 of 2023 Jayant Kumar Tiwari S/o Late Shri Jagannath Prasad Tiwari Aged About 64 Years Retired Senior Radiographer, R/o 69/1048, Ward No. 69, Shanti Vihar Colony, Daganiya, Raipur, District : Raipur, Chhattisgarh ... Petitioner versus 1 - State of Chhattisgarh Through Secretary, Health And Family Welfare Department, Mahanadi Bhawan, Mantralaya, Capital Complex, Naya Raipur, District : Raipur, Chhattisgarh 2 - Director Health Services, Mantralaya, Indrawati Bhawan, IIIrd Floor, Atal Nagar, Raipur, District : Raipur, Chhattisgarh 3 - Divisional Joint Director Health Services, Division-Raipur / Durg, Old Nursing Hostel, D.K.S. Bhawan, Raipur, District : Raipur, Chhattisgarh 4 - Block Medical Officer Community Health Center Arang, District : Raipur, Chhattisgarh 5 - Commissioner Directorate, Treasury And Pensions, Indrawati Bhawan, Naya Raipur, Chhattisgarh 6 - Joint Director Directorate of Treasury, Account And Pension, Indravati Bhavan, Naya Raipur, District : Raipur, Chhattisgarh ... Respondents (Cause-title taken from Case Information System) For Petitioner : Ms. K. Radhika, Advocate For Respondents : Mr. Pratik Tiwari, Panel Lawyer Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 20.01.2025 1. Heard Ms. K. Radhika, learned counsel for the petitioner as well as Mr. Pratik Tiwari, learned Panel Lawyer, appearing for the State/respondents. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.01.23 19:35:44 +0530 2 2. On 03.10.2023, learned State counsel prayed for four weeks time to file reply, but till date, no reply has been filed by the State/respondents and today also, when the matter is came up for hearing, learned State counsel seeks for further time to file reply. The said request has been objected by the learned counsel for the petitioner. 3. It appears from the pleadings made in the writ petition that since the matter relates to recovery of amount and the grounds for recovery do not shows that the petitioner in any manner committed any misconduct or misrepresentation while accepting the said deduction, I proceeded to hear the matter finally even without reply of the State. 4. The instant petition is preferred by the petitioner under Article 226 of the Constitution with the following relief(s):- “10.1 That, the Hon’ble Court may kindly be pleased to call for the entire records pertaining to case of the petitioner. 10.2 That, this Hon’ble Court may kindly be pleased to quash/set aside the impugned amended order dated 02/06/2021 (Annexure P/1) passed by the respondent No.04. 10.3 That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to remit back the recovered amount i.e. Rs.1,07,395/- to the petitioner along with 3 interest of @ 18% per annum, without any further deduction and at the earliest. 10.4 That, any other relief, which this Hon’ble Court may deem fit and proper under the facts and circumstances of this case, may also be granted to the petitioner. 10.5 That, the cost of the petition may also be granted.” 5. The challenge in the present writ petition is to the notice of recovery dated 02.06.2021 whereby the authorities have initiated recovery of an amount of Rs.1,07,395/- to be recovered from the retiral dues payable to the petitioner. 6. The facts of the case is that, the petitioner working on the post of Senior Radiographer under the respondent No.4 and retired from service on attaining the age of superannuation on 31.05.2021. Subsequent to the retirement of the petitioner, in the course of deciding release of retiral dues, the respondents have ordered for recovery of aforementioned amount of Rs.1,07,395/- from the retiral dues payable to the petitioner. 7. 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, which is impermissible under 4 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 in support of his contention. 8. The State counsel on the other hand submits that it is a case where admittedly the petitioner has been provided with some erroneous fixation of pay on account of which he has received certain amount in excess to what he was otherwise legally entitled for and the moment it was detected in the course of settling retiral dues of the petitioner the department has taken steps for adjusting the same from the retiral dues. He fairly submits that petitioner has deposited the said amount before the respondent authorities. 9. Having heard the contentions put forth on either side and on perusal of the record, admittedly the petitioner worked as an Senior Radiographer, which is a Class-III post. The alleged excess payment has been made to the petitioner on account of wrong fixation made by the department. It is not the case of the respondents that there has been any misrepresentation made by the petitioner for getting the said erroneous fixation. 10. 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 5 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. Some of the situations in the said judgment of Rafiq Masih (supra) are reproduced hereinunder: “11. Recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). In such circumstances recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's 6 retirement, or within one year of the date of his retirement on superannuation. 12. xxxxxxxxxx (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. (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.” 11. Taking into consideration the aforesaid situations and comparing the same with the facts of the present case, this Court is of the opinion that the case of the petitioner stands squarely covered by 7 the judgment of the Supreme Court in the case of Rafiq Masih (supra). 12. Thus, the impugned order of recovery dated 02.06.2021 is not sustainable and the same deserves to be and is accordingly set aside/quashed. The writ petition stands allowed. 13. Accordingly, it is directed that the recovery made of Rs.1,07,395/- by the Department would be forthwith released to the petitioner within a period of 90 days from the date of receipt of copy of this order. Sd/- (Amitendra Kishore Prasad) Judge Yogesh