1 2025:CGHC:49695 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3852 of 2023 1 - Smt. Sanim Dhritlahare W/o- Late Shri Vimlesh Dhritlahre, Aged About 43 Years R/o-D/104, R.K. Residency, Ghuru Road, Yadunandan Nagar-Tifra, Bilaspur, District- Bilaspur, C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary Dept. Of School Education, Mantralalya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District- Raipur, C.G. 2 - District Education Officer, Gaurela- Pendra-Marwahi, Distt-Gaurela- Pendra-Marwahi, C.G. 3 - Principal Govt. Higher Secondary School Kodagar, Block- Pendra, District- Gaurela- Pendra-Marwahi, C.G. RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 4 - Division Joint Director Treasury Account And Pension, Bilaspur, District-Bilaspur, C.G. ... Respondent(s) For Petitioner(s) : Mr. Gourav Laskar, Advocate on behalf of Mr. Pawan Shrivastava, Advocate. For Respondent(s)/State : Mr. Ajay Kumar Pandey, G.A. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 06/10/2025 1. By way of this petition, the petitioner has prayed for following reliefs:- “10.1 That, the Hon'ble Court may kindly be pleased to call the entire records relating to the case of the Petitioner. 10.2 That, the Hon'ble Court may kindly be pleased to issue Writ and quash/set aside the letter dated-12.06.2023 (Annexure-P/1) issued by respondent no 3 with regard to direction to petitioner to deposit of excess payment of Rs 94,320/- made to late employee, while he was in service. 10.3 That, the Hon'ble Court may kindly be pleased to issue a Writ and direct the respondents to release the full and final family pension of petitioner with arrears with 12% interest, within a period of 30 days. 10.4 That, Hon'ble Court may kindly be pleased to direct the Respondents to release the entire Gratuity amount with 3 12% interest, within a period of 30 days. 10.5 That, Hon'ble Court may kindly be pleased to direct the Respondents to pay 12% interest on delay payment of amount of leave encashment and other retiral dues. 10.6 Any other relief which Hon'ble Court deems fit and proper in the facts and circumstances of the case and cost of the petition..” 2. Learned counsel for the petitioner submits that vide order dated 13.10.2010, Shri Vimlesh Dhritlahare, the husband of the petitioner, was appointed as Assistant Grade-3 at Government Higher Secondary School, Vishrampuri, District Bastar, Chhattisgarh, where he commenced his duties on 21.10.2010. Subsequently, pursuant to the option exercised by the District Education Officer, Bilaspur, by order dated 31.08.2017, Shri Dhritlahare was transferred and posted at Government Higher Secondary School, Amadand, Block Pendra, under the control of Respondent No. 3, joining on 04.09.2017 and diligently performing his responsibilities with utmost sincerity and integrity. Later, by order dated 09.01.2018, he was attached to the office of the Collector, District Bilaspur, under the Lok Suraj Abhiyan initiative. During the course of his duties amidst the COVID-19 pandemic, Shri Dhritlahare passed away on 10.05.2021. Following his demise, the petitioner, his lawful wife, approached 4 the relevant authorities for the release of family pension and other retiral dues. However, respondent No. 4 raised a formal objection, contending that an excess payment amounting to Rs. 94,320/- was erroneously disbursed to the late employee due to the wrongful grant of an increment between 01.07.2012 and 30.06.2017. Consequently, a demand notice was issued directing the petitioner to refund the said sum as a prerequisite for processing her pension claim. Learned counsel contends that this action is wholly unjust, arbitrary, and malafide, which unequivocally held that recovery of excess payments from an employee who is blameless is impermissible. Therefore, the impugned letter dated 12.06.2023 demanding repayment must be quashed and set aside, and the petitioner’s claim for family pension and retiral benefits ought to be expeditiously granted without any further obstruction. He contended that the issue with regard to recovery of the excess payment made to the employees in particular, the Class III and Class IV employees has been considered by the Hon’ble Supreme Court in case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 and the Hon’ble Supreme Court has held that the recovery of excess payment made to the Class III and Class IV employee to be impermissible. He also contended that following the decision in the case of Rafiq Masih (Supra), 5 Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has also allowed the Appeal filed by the appellant therein. He further submits that no recovery has been made from the petitioner. 3. On the other hand, learned counsel for the Respondents/State submits that since wrong fixation has been mentioned in the service book as such it is required to be recovered from the petitioner as excessive amount has been paid which is apparent from the fixation of pay scale itself. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. The Hon’ble Supreme Court in the case of Rafiq Masih (Supra) has 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). 6 (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.” 6. Hon'ble Supreme Court in the case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. (2009) 3 SCC 475 considering the issued with regard to recovery of excess payment made to the petitioner therein has held as under : “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (A) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the 7 pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the 8 view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.” 7. High Court of Madhya Pradesh (Gwalior Bench) in the matter of Smt. Rekha Tomar vs. M.P. Warehousing and Logistics Corporation and Others passed in W.P. No. 17214 of 2017 vide order dated 30.08.2022 has held as under: “Whether a departmental enquiry can be initiated against a dead employee, if yes then whether the respondents have followed the said procedure not? 8. Counsel for the respondents could not point out any provision of law which empowers the Corporation to initiate a departmental enquiry against a dead employee Furthermore, after the death of an employee takes place the relationship of employer and employee also stand broken for the purposes of departmental enquiry. Even if the death takes place during the pendency of departmental enquiry the departmental proceedings would stand abated xxx xxx 9. Even otherwise it appears that the Corporation has tried to fix the liability of entire embezzlement on the shoulders of the dead employee by forfeiting an amount of Rs 16,48,000/-against a total embezzlement of Rs 6,43,88,390/ No fact finding conducted by the enquiry was respondents to find out as to whether husband of the petitioner was solely responsible or 9 embezzlement took place in connivance with other officers No opportunity of hearing was given to the petitioner against any such proposed recovery. 10. Thus, the order dated 30.05.2017 which provides that against a loss of Rs.6,43,88,390/- the matter is closed by forfeiting an amount of Rs. 16,48,000/-payable to the petitioner is hereby quashed.” 8. The Allahabad High Court in the case of Durgawati Dubey vs. State of U.P. and others by order dated 08.10.2018 passed in WRIT-A No.40057 of 2013 has held as under:- “By the perusal of records, this fact is undisputed proceeding was initiated after the death departmental of husband of petitioner. It appears that only after order of this Court dated 22.02.2013, respondents have initiated the departmental proceeding ignoring this fact that husband of the petitioner died much eartier it is also very ridiculous that Inquiry Officer has issued notice to petitioner to submit the reply for an allegation against her late husband In fact this act of Inquiry Officer is absolutely suffers from non application of mind and also ignores settled law of departmental proceeding How it is possible for the petitioner to submit reply with regard to the alleged allegation of embezzlement by her late husband. Whatever letters are referred in the counter affidavit, either filed by respondent No. 4 or by the State respondents with regard to the departmental proceeding undsiputedly after the death of husband of petitioner. Therefore, in such facts, the 10 complete departmental proceeding is ex facie bad as in any case, no inquiry can be initiated against a dead person. Respondents may have initiate the inquiry proceeding during the service period of husband of petitioner or at least before his death, but after death, complete inquiry proceeding as well as impugned order dated 10.06.2013 is bad in law and not sustainable.” 9. In the case of Smt. Rajeshwari Devi Vs. State of U.P. and Ors., 2011(2) ADJ 643 decided on 07.01.2011, the High Court of Allahabad has held that as soon so as a person dies, he breaks. all his connection with the worldly affairs, therefore, no disciplinary proceeding can be initiated against him. Relevant Paragraph Nos. 6 and 7 of the judgment are being quoted below:- “6. Holding of departmental enquiry and imposition of punishment contemplates a pre-requisite condition that the employee concerned, who is to be proceeded against and is to be punished, is continuing an employee, meaning thereby is alive. As soon as a person dies, he breaks all his connection with the worldly affairs. It cannot be said that the chain of employment would still continue to enable employer to pass an order, punitive in nature, against the dead employee.” 10. Similar dispute has also come before the Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors., 2001 (49) BLJR 2179 decided on 01.05.2001, the Court had directed the respondents to pay all post retiral benefits to the widow Relevant Paragraph Nos 9 and 10 of the judgment are being quoted below- 11 “9. In the instant case admittedly the died on delinquent- employee 24.3.1999 and the Enquiry Officer submitted his report on 30.8.1999. In the enquiry report (Annexure F) the Enquiry Officer took notice of the fact that the delinquent employee died on 24.3.1999. The Enquiry Officer further took notice of the fact that the delinquent-employee had requested the respondents to keep the departmental proceeding in abeyance till the disposal of the case pending before him. However, the Enquiry Officer after the death of delinquent employee called upon the respondents and on the basis of documents produced by them submitted enquiry report and on the basis of that report a formal order of dismissal was passed In my opinion therefore the manner respondents proceeded in which with the departmental proceeding against the delinquent employee, the enquiry report as well as the order of dismissal is vitiated in law and is null and void I am, further of the view that the widow of the deceased employee cannot be deprived of her legitimate claim of death-cum-retirement benefits on the ground of dismissal of the employee on the basis of departmental proceeding initiated after 6 years of the order of suspension and that to on the basis of enquiry report submitted by the Enquiry Officer after proceeding ex parte against the deceased-employee who died much before the date when the Enquiry Officer proceeded with the matter and submitted his report. 12 10. For the reasons aforesaid, this writ application is allowed and the respondents are directed to release all the death-cum- retirement dues in favour of the petitioner, who is widow of the deceased expeditiously employee as possible as and preferably within a period of 30 days from the date of receipt/production of copy of this order.” 11. Very recently, in the matter of Yogita Harinkhede vs. the State of Madhya Pradesh and Others, passed in W.P. No. 2592 of 2025 vide order dated 11.02.2025, the Court has held as under:- “9. Upon hearing learned counsel for the parties and consideration of pleadings and documents placed on record, it is apparently clear that in the present case also, recovery is being made from the widow of an employee who was belonging to Class-III service. The recovery is being made after death of deceased employee from his widow Thus, in view of the case laws cited above, the impugned recovery being made from the petitioner vide Annexure P/4 cannot be sustained. 10. In view of the above, the impugned order dated 9.12.2024 (Annexure P/4) passed by the respondent no.5 is hereby quashed. The amount, if any. recovered from the petitioner be refunded to her along with interest @ 6% per annum from the date of recovery made pursuant to Annexure date of payment. P/4 till The respondents authorities are further directed to release the withheld amount to the petitioner and the family pension and pensionary dues payable to her husband on his 13 death in favour of the petitioner.” 12. In a recent judgment, the Hon’ble Supreme Court in the matter of Jogeswar Sahoo & Ors vs. The District Judge, Cuttack & Ors reported in 2025 SCC Online SC 724 has reiterated and confirmed the dictum laid by the Hon’ble Supreme Court in the matter of Rafiq Masih (supra) and Thomas Daniel (supra) holding that recovery cannot be made from the employee in case no fraud or misrepresentation was made by the employee. 13. In light of the above authoritative judgments, facts of the present case are to be examined. The alleged excess payment was not made by any misrepresentation or fraud on the part of the husband of the petitioner. Further considering the fact that during life time of husband of petitioner, no proceedings for recovery of amount was indicated as such after the death of employee the amount as alleged by the respondent authorities cannot be recovered from the widow. Accordingly, in light of orders cited above impugned recovery notice issued to the widow of deceased employee is quashed. 14. With the aforementioned observation, writ petition is allowed. 15. If any amount is recovered pursuant to the impugned recovery order, the same shall be refunded to the petitioner within a period of 90 days from the date of receipt of a copy of this order, failing which, it shall carry interest at the rate of 7% per annum. Sd/- (Amitendra Kishore Prasad) Raghu Jat Judge