1 2025:CGHC:6623 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8556 of 2023 1 - Tejram Patel S/o Shri Jagmohan Patel Aged About 63 Years R/o Kelo Vihar, Qtr. No. 435, Street No. 2, Chakradhar Nagar, Raigarh, P.S. Chakradhar Nagar, Tahsil And Distt. Raigarh, C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Bhawan, Mantralaya, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh 2 - Director General Of Police (Dgp) Police Head Quarter (Phq), Sector-19, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh. 3 - Inspector General Of Police (Igp) O/o. Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, Distt. Bilaspur, C.G. 4 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, Distt. Bilaspur, C.G. Digitally signed by RAGHVENDRA JAT 2 5 - Superintendent Of Police (Sp) O/o Superintendent Of Police , Raigarh, Distt. Raigarh, C.G. ... Respondent(s) For Petitioner(s) : Mr. Abhishek Pandey, Advocate along with Ms. Swati Rani Saraf, Advocate. For Respondent(s)/State : Mr. Akhilesh Kumar, G.A. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 05/02/2025 1. Heard. 2. This petition has been filed by the petitioner seeking for 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 dated 02.03.2023 against the petitioner issued by Respondent No. 4 Divisional Joint Director, Treasury Accounts and Pension Bilaspur (Annexure P/2). (iii) That, this Hon'ble Court may kindly be pleased to direct respondent authorities to refund the whole 3 deducted amount to the petitioner i.e., Rs. 3,66,358/- with interest of 10% in relation to recovery order dated 02.03.2023 issued by Respondent No. 4 Divisional Joint Director, Treasury Accounts and Pension Bilaspur. (iv) That, the Hon'ble Court may kindly be pleased to direct the Respondent No. 3, 4 and 5 to release the whole retiral dues i.e. Leave Encashment, Sewa Samman Nidhi, Group Insurance Scheme (GIS), Family Benefit Fund (FBF) and others to the petitioner which has been stopped due to impugned recovery order dated 02.03.2023. (v) 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. Learned counsel for the petitioner submits that initially the petitioner was appointed on the post of Constable in the year 1984 and promoted as Head Constable. He was working with the respondent department and got retired on 31.07.2022 as Head Constable on attaining the age of superannuation. After retirement of the petitioner the respondents authority pass an order for recovery on dated 02.03.2023 of excess payment 4 amounting to Rs. 3,66,358/-. He further submits that, while he was in service, from time to time as per the guidelines of the State Government the benefit of pay scale including the time pay scale was extended by the respondent authorities in favour of the petitioner. He further stated that while he was in service. The main grievance espoused is that, all of a sudden the respondent authorities passed recovery order dated 02.03.2023 (Annexure P/2) for recovery of Rs. 3,66,358/- from the petitioner on account of excess payment made to the petitioner against wrong pay fixation. In support of his contention counsel for the petitioner has relied upon the judgment passed by this Court in W.P.(S) No. 9716 of 2019 (Shankar Narayan Chakrawarty Vs. State of Chhattisgarh and ors.) wherein while disposing of the writ petition vide order dated 30/01/2020, the Hon'ble Court passed an order for quashment of recovery order and directed to refund the amount recovered from the employee/petitioner. Petitioner in support of his contention has also given a reference of order dated 08/10/2021 passed in W.P.(S) No. 5823 of 2014. He submits after the superannuation of the petitioner the respondent authority has passed an order for recovery dated 02.03.2023 of the excess payment seeking consent from the petitioner. For this submission he relied upon the judgment of 5 Uma Shankar Dwivedi Vs. State of Chhattisgarh & Ors. Passed by this Court on 23.05.2024 in Writ Petitionm (S) No. 655 of 2015 and also relied upon the order passed by the Division Bench of this Court on 03.04.2024 in Writ Petition (S) No.2977 of 2024 (Suyash Kanti Ghosh Vs. Central Silk Board and others). He further submits that the ratio laid down in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334, clearly postulates the recovery of amount after retirement would be barred. He would further submit that the respondent department/concerned authority may be directed to refund the entire amount of Rs. 3,66,358/- with interest at the rate of 10% per annum from the date of its recovery till actual payment made to the petitioner. 2. On the other hand, learned counsel for the State submits that the reliance as placed by the petitioners in the case of State of Punjab Vs. Rafiq Masih (supra) is misconstrued as the same is not applicable to the case of the petitioner as the same has been passed in different facts and circumstances. Further the present is a case where the wrong fixation has been made at the time of revision of pay of the employee and at the very same time he was duly informed and had given specific undertaking while opting for the fixation stating that in 6 case of any wrong fixation being detected subsequently, the same can be recovered by the department and he was made aware that the revision was not final and the same was merely provisional. The said position of law has been settled by the 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." As per case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhan and Others reported in (2012)8 SCC 417 wherein the question before the Apex Court whether the appellant can retain the amount received on the basis of irregular/wrong fixation or in absence of any misrepresentation or fraud in their part as contended. Answering the aforesaid question which was raised after considering the ratio laid down in the earlier judgments has come to the conclusion that even if 7 there is no misrepresentation or fraud the same can be recovered. "13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “tax payers", money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, 8 carelessness, collusion, favoritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money or otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case reported in (2009)3 SCC 475 and in Col. B.J. Akkara case reported in (2006)11 SCC 709, the excess payment made due to wrong/irregular pay fixation can always be recovered. 16. The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in 9 which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that the excess payment made be recovered from the appellant's salary in twelve equal monthly installments starting from October, 2012." 3. The Hon’ble Supreme Court in case of Rafiq Masih (Supra) held as under:- “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). 10 (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.” 4. The Hon’ble Division Bench of this Court in case of Labha Ram (Supra) observed as under: 11 “9. In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon’ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been 12 overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra. XXXX 11.In view of the above and on finding that in the cases at hand, the recovery of the excess payment has been made more than 12 years ago; the writ petitioners belong to Class-III cadre in the services of the State Government, and small amount has been paid to them in a long span of time, which has now accumulated and the recovery of substantial amount is to be made against them, we are inclined to hold that the Writ Appeals have no substance. They deserve to be and are hereby dismissed.” 5. In the light of the above authoritative judgments the facts of the present case is to be examined. The petitioner is a Class III employee. About 7 months ago prior to his from the date retirement the impugned order (Annexure P/2) was issued. The alleged excess payment was not made by any misrepresentation or fraud on the part of the petitioner. In the considered opinion of this Court, the case of the petitioner squarely covered by the 13 case of Rafiq Masih (Supra). Therefore, the impugned order dated 02.03.2023 (Annexure P/2) issued by the respondent authorities for recovery of the excess payment is set aside and the amount which has been recovered, if any, as excess payment shall be refunded to the petitioner and also directed the respondent authorities to release the withheld retiral dues i.e. amount of leave encashment, seva samman nidhi, family benefit fund (FBF) & ors which has been withheld due to impugned recovery order within a period of 60 days from receipt of copy of this order. 6. Accordingly this petition is allowed with the aforesaid observations and directions. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat