1 2025:CGHC:5569 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 9793 of 2019 1 - Divya Kumar Sahu S/o Shri Nanku Das Sahu, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 2 - Neeran Lal S/o Shri Punaram, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 3 - Nilesh Panday S/o Shri G.P. Panday, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 4 - Lokendra Singh S/o Shri Daulat Singh, Aged About 33 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 5 - Lalit Tiwari S/o Shri Tribeni Prasad, Aged About 31 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 6 - Markanday Rai S/o Late Shri Ramsurat, Aged About 32 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 7 - Ashok Kumar S/o Shri Ram Ashray Singh Aged About 36 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 8 - Dinesh Patel S/o Shri Pyaare Lal Patel, Aged About 24 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 9 - Om Prakash Shukla S/o Shri Jagdeesh Shukla, Aged About 32 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 10 - Sandeep Mishra S/o Shri Vashishta Mishra, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 11 - Surdas Bhoyar S/o Late Shri Dhan Singh Aged About 35 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 12 - Upendra Savita S/o Late Shri Devidayal, Aged About 32 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 13 - Deepak Sharma S/o Shri Sundar Lal Sharma, Aged About 32 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 14 - Ramadhar Baghel S/o Shri Manbodh Baghel, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 15 - Bhaskar Prasad Sharma S/o Shri Matadin Sharma, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 16 - Sanatan Sidar S/o Shri Dev Prasad, Aged About 35 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 17 - Ghanshayam Yadav S/o Late Shri Jogeshwar Yadav Aged About 33 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 3 18 - Ambrish Kumar S/o Shri Ramnath, Aged About 36 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 19 - Mritunjay Kushwaha S/o Late Shri Mangaru Bhagat, Aged About 33 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 20 - Girdhar Prasad Sahu S/o Shri Om Prakash Sahu, Aged About 33 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 21 - Arun Nareti S/o Shri Shayam Lal Nareti, Aged About 37 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 22 - Indra Singh Netam S/o Shri Arjun Singh Netam, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 23 - Jai Singh Netam S/o Shri Midhu Ram Netam Aged About 35 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 24 - Arvind Kumar S/o Shri Chandrabhan Singh, Aged About 35 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 25 - Vikram Das Sahu S/o Shri Prabhu Dayal Sahu, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh 26 - Manendra Pratap Singh, S/o Shri Gopal Singh, Aged About 34 Years R/o Stf Head Quarter, Baghera, Durg P.S. Baghera, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Petitioner(s) Versus 4 1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Mantralaya, Police Station And Post Rakhi, Atal Nagar Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2 - Director General Of Police (Dgp), Police Head Quarter (Phq), Near Mahanadi Mantralaya, Police Station And Post Rakhi, Atal Nagar, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 3 - Inspector General Of Police (I.G.P.), Office Of Inspector General Of Police, 32 Banglow, Bhilai, District Durg Chhattisgarh, District : Durg, Chhattisgarh 4 - Superintendent Of Police (S.P.) Office Of Superintendent Of Police, Baghera, P.S. Baghera, Durg, Tahsil And District Durg Chhattisgarh, District : Durg, Chhattisgarh ... Respondent(s) For Petitioners : Mr. Abhishek Pandey, Advocate For Respondents : Mr. Santosh Soni, Government Advocate along with Mr. Abhishek Pandey, Government Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 29/01/2025 1. Grievance of petitioners in this writ petition is with regard to recovery of the excess amount on the ground of excess payment made to the petitioners, during their service tenure vide impugned order dated 10.10.2019 (Annexure P/1). 2. Learned counsel for petitioners submit that petitioners are officiating their duties on the post of Constable and were posted under the office of the Respondent No. 4/Superintendent of Police, Bagehra, District - Durg. Respondent No.4 issued order dated 10.10.2019 for recovery of the amount allegedly paid in excess to the petitioners during their service period due to wrong pay fixation. Petitioners are Class-III employees and no recovery can be made from the petitioners even if there is wrong fixation of pay by the respondents. He contended that 5 before passing of the impugned order dated 10.10.2019, the petitioners were never informed about any excess payment made to them, even before proposing recovery and showing amount to be recovered, no notice was issued to them asking that the amount paid in excess has to be recovered from them. In support of his contention, he placed reliance on the decision of Hon'ble Supreme Court in cases of State of Punjab & Ors Vs. Rafiq Masih (White Washer) & Ors, reported in (2015) 4 SCC 334; High Court of Punjab and Haryana and others v. Jagdev Singh reported in (2016) 14 SCC 267; and also the orders passed by Division Bench of this High Court in Writ Appeal No.264/2020 (State of Chhattisgarh v. Labha Ram Dhruv) and Writ Appeal No.265/2020 (State of Chhattisgarh and Others v. Roshan Lal Baghel). 3. Learned State Counsel submits that due to typographical mistake in mentioning of figure of salary, petitioners have been paid excess amount of salary from the year 2017 till the year 2019 and therefore, the same being a huge loss to the Public Ex-chequer is to be recovered. Further, the said recovery cannot be said to be bad because at the time of entering into service and thereafter, from time to time, the petitioners had given undertakings that in case if any payment is made in excess, they will return the excess amount or the authorities will be at liberty to deduct the said amount from the petitioners. Therefore, the petitioners are estopped from challenging the recovery order dated 10.10.2019 (Annexure P/1) issued by the authorities. Hence, the action taken by the respondents is just and proper. 4. Heard learned counsel for the parties and perused documents filed along with writ petition. 6 5. This Court vide order dated 27.11.2019 passed an interim order in favour of the petitioners, staying the effect and operation of recovery notice dated 10.10.2019 (Annexure P-1) till the next date of hearing. 6. In the case of Rafiq Masih (supra), the Apex Court considering the issue of recovery of amount has summarized the situations where in certain cases even the recovery from the employee by the employer would not be permissible in law. In Para-18 it was observed thus:- "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). (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." 7. In case of Jagdev Singh (supra), Hon’ble Supreme Court though had considered the issue with regard to the undertaking, however, Para-10 (i) of the decision in case of Rafiq Masih (supra) has not been overruled or interfered. This aspect is also considered by the Division Bench of this Court in case of Labha Ram Dhruv (Supra) and observed thus:- “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. 7 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 overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra” 8. From perusal of the above it is clear that the recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) is 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. 9. In the case at hand, admittedly, petitioners are officiating their duties on the post of Constable which is a Class – III Post (Group ‘C’) and thereafter, the order of recovery from the petitioners has been issued on 10.10.2019. It is also not the case of the respondents that petitioners have received excess payment by practicing fraud or by making misrepresentation. Thus, the petitioners cannot be compelled to refund the amount which has been paid by the respondents on their 8 own without any misrepresentation or fraud on the part of the petitioners. 10. So far as the undertaking submitted by the petitioners during course of their employment is concerned, the Division Bench of this High Court in WA No.264/2020 (supra), while considering the issue of undertaking has held that giving of such an undertaking is not a voluntary act and the recovery on that basis, therefore, cannot be sustained. The Division Bench in Para-9 has held thus:- “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 overruled, but only clarified, by the Hon’ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra.” 11. In the case at hand, perusal of undertaking given by the petitioner namely Divya Kumar Sahu produced before this Court during argument would show that it was submitted by petitioners at the time of getting benefit of revision. This undertaking is in a proforma that simply 9 mentions for refund of over payments, if any made, on account of incorrect fixation. However, the amount paid in excess to petitioners and sought to be recovered by the order impugned, is for the period from the year 2017 to 2019. 12. The decision relied upon by the counsel for the respondents in the case of Jagdev Singh (Supra) is on different facts. In that case, the respondent therein was a Judicial Officer whereas in the case at hand, the petitioners are Class - III employees. The another decision relied upon by the learned counsel for the State in the case of Chandi Prasad Uniyal Vs. State of Uttrakhand (2012) 8 SCC 417 which is a decision before the decision in the case of Rafiq Masih (Supra). In the case of Rafiq Masih (Supra), Hon’ble Supreme Court has observed that under what circumstances, recovery from the employees is not permissible. In the said case, Hon’ble Supreme Court has clearly held that recovery of excess payment from Class – III and Class – IV employees to be impermissible. 13. In light of above decisions and in the given facts and circumstances of the case, in the considered opinion of this Court, the respondents cannot be permitted to make the recovery from the petitioners and being so, the recovery against the petitioners is not suitable. 14. Consequently, the writ petition is allowed. Impugned order dated 10.10.2019 passed by Respondent No. 4 so far it relates to the petitioners’ is hereby quashed. If recovery is already made, respondents are directed to refund the amount so recovered to the petitioners within a period of three months from the date of order, failing 10 which the aforesaid amount shall carry interest @ 6% per annum till actual date of payment. 15. Certified copy as per rules. Sd/-d/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey