1 2025:CGHC:50224 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4453 of 2018 Alkhuram Sahu S/o Shri Aajuram Sahu, Aged About 57 Years Occupation Service, R/o Ward No. 12, Near Shriram Mandir, Surki Talab, Nawagarh, Tahsil And Police Station Nawagarh, District Bemetara (Chhattisgarh), Office Of Patwari Halka No. 18, Tahsil Nawagarh, Civil And Revenue District Bemetara Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Revenue, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh. 2 - The Collector Bemetara, District Bemetara Chhattisgarh. 3-Sub Divisional Officer (Revenue), Bemetara, District Bemetara Chhattisgarh. 4 - The Tahsildar, Nawagarh, District Bemetara Chhattisgarh. ... Respondents For Petitioner : Mr. C. Jayant K. Rao, Advocate For Respondents : Mr Rajkumar Gupta, Additional Advocate General Hon'ble Shri Justice Sachin Singh Rajput Order On Board 08/10/2025 1. Instant writ petition under Article 226 of the Constitution of India has been preferred by the petitioner challenging the validity, correctness and propriety of the order dated 28.05.2018 (Annexure P-1) passed by respondent 2 No. 2 – Collector, Bemetara (C.G.) whereby a Departmental appeal filed against an order of recovery dated 29.04.2006 (Annexure P/4 & Annexure P/5) has been dismissed, by which the petitioner was directed to pay Rs. 47,076/- which was subsequently corrected as Rs.41,715/- on account of imposition of major penalty of withholding of one increment with cumulative effect. 2. Facts, which emerges from the pleading in this case, are that the petitioner was initially appointed as Patwari on 15.02.1984 and posted at Patwari Halka No. 26/95 of Village Kanteli of Tahsil Bemetara. During his service tenure, he has been posted at various places of District Bemetara. He is working with sincerity and responsibility and with best of his ability. Looking to his work and performance, the Superior Officer have also appreciated him and given certificate also, but the petitioner got surprised when he received a registered letter, in which, it has been mentioned that excess payment of recovery of Rs.47,076/- is to be recovered from the petitioner by virtue of an order passed by the Sub-Divisional Officer (Revenue) by its order dated 09.04.1991. The letter of recovery was issued by the Tahsildar on 21.04.2006, which was received by the petitioner on 29.04.2006 that amount is wrongly mentioned, in place of which, it be read as Rs.41,715/-. The said order and notice were challenged by the petitioner before this Hon’ble High Court by filing petition being Writ Petition No. 2336 of 2006. On 05.05.2006, the matter came up for hearing before this Court and this Court stayed the recovery order and the notice, thereafter, on 05.02.2016, the matter again came up for hearing before this Court, at that time, this Court after hearing some argument, leave is sought to withdraw the writ petition for perusing the departmental remedies, on this observation, the petitioner withdrew the said writ petition and filed Departmental appeal before respondent No. 2 and respondent No. 2 without considering the documents and evidence available on record passed the 3 impugned order. Hence, this petition. 3. Learned counsel for the petitioner submits that the petitioner was initially appointed on the post of Patwari on 15.02.1984 and was posted in various places of District Bemetara. On 21.04.2006, an order / recovery letter (Annexure P-4) was issued to the petitioner directing him to pay a sum of Rs. 47,076/- subsequently the same was revised and further vide order dated 29.04.2006, an amount of Rs. 41,715/- was directed to be recovered from the petitioner. From the perusal of aforesaid order, it reflects that the alleged recovery sought to be made was in respect of some penalty imposed upon the petitioner in the year 1991 and as a consequence of which, his pay fixation was made, which resulted into the excess payment as mentioned in the letters dated 21.04.2006 & 25.04.2006 (Annexure P/4 & Annexure P/5), respectively. It has been further stated that according to memo dated 25.04.2006 (Annexure P/5), the said recovery was made with effect from the month of May, 2006 @ Rs. 834/- per month. He submits that thereafter, petitioner challenged the same before this Court by filing Writ Petition No. 2366 of 2006, in which, interim relief was also granted in favour of petitioner vide order dated 5.5.2006 subsequently the said petition was dismissed as withdrawn with liberty to pursue departmental remedies by this Court vide its order dated 05.02.2016. It is further submitted that thereafter a further departmental appeal was preferred by the petitioner before respondent No. 2/Collector, Bemetara, who dismissed the appeal maintaining the punishment imposed upon the petitioner by Sub Divisional Officer (Revenue), Saja dated 09.04.1991 and the execution order dated 21.04.2006 & 25.04.2006 (Annexure P/4 & Annexure P/5), respectively. He submits that though measure punishment of withholding one increment with cumulative effect was imposed upon the petitioner sometime in the year 1991, however, recovery order was issued in the year 2006, after lapse of about 15 4 years. He submits that pay scale of the petitioner was revised on account of the penalty imposed him, which resulted into recovery of the aforesaid amount. He submits that during pendency of the writ petition, the petitioner has already retired from service. He lastly submits that case of the petitioner was under the parameters as envisazed in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc . reported in (2015) 4 SCC 334, as the recovery was from more than 5 years from the date of issuance of the recovery order dated 21.04.2006 & 25.04.2006 (Annexure P/4 & Annexure P/5). Therefore, impugned order dated 28.5.2018 (Annexure P-1), letter dated 21.04.2006 (Annexure P-4) and letter dated 25.04.2006 (Annexure P-5) be quashed. 4. Per contra, Mr. Gupta, learned Additional Advocate General appearing for the State vehemently opposed the submission made by learned counsel for the petitioner and would submit that the recovery was not on account of any excess payment, rather the petitioner was inflicted with major penalty of withholding of one increment with cumulative effect sometimes in the year 1991. In pursuance of that order, pay scale of the petitioner was revised, which resulted into the recovery of excess payment, which has been sought to be recovered by the impugned orders. He further submits that the impugned order is a consequence of the original punishment order and, therefore, until & unless original punishment order is set aside, subsequent executing orders in compliance of that could not be quashed. He further submits that the case of the petitioner does not fall within the parameter as prescribed in judgment of the Supreme Court in the case of Rafiq Masih (supra). 5. I have heard learned counsel for the parties and perused the material available on record. 5 6. From the perusal of facts and submission made herein above, it emerges that the petitioner was inflicted with one major penalty of withholding of one increment with cumulative effect some times in the year 1991. It appears that thereafter, his pay scale was revised and it was found that the petitioner has been made an excess payment of Rs. 47,076/- vide order dated 21.04.2006 (Annexure P-4), which was subsequently amended as Rs.41,715/- vide order dated 25.04.2006 (Annexure P-5) on account of imposition of major penalty of withholding of one increment with cumulative effect. 7. From the record, it appears that initially the petitioner has filed Writ Petition No. 2336 of 2006, in which, interim order was passed on 5.5.2006 and subsequently, the said writ petition was dismissed as withdrawn with liberty to pursue departmental remedies. Annexure P-1 is the order of appeal filed by the petitioner against such order of recovery. Though, learned Collector, vide impugned order dated 28.05.2018 has categorically discussed the submission and factual scenario of the case and maintained the order dated 09.04.1991 passed by Sub Divisional Officer, Saja inflicting major penalty of withholding of one increment with cumulative effect, however, also maintained the order dated 21.04.2006 (Annexure P-4) and order dated 25.04.2006 (Annexure P-5). But the fact remains that major penalty was inflicted upon the petitioner in the year 1991. And for almost 15 years, excess payment, which was paid to the petitioner, was not sought to be recovered from the petitioner, though the petitioner was in service at that point of time. 8. Hon’ble Supreme Court in the matter of Rafiq Masih (White Washer) and others (supra) has laid down the parameters, in which, recovery of excess payment cannot be made from the employees. The law which has 6 been laid down by the Hon’ble Supreme Court in paragraph 18 is produced hereinbelow :- “18. it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.” 9. Taking the aforesaid situations as has been envisages by the Supreme Court in afore-cited case with the facts of the present case, it would clearly reveal that case of the petitioner fall under Clause III of the said parameters. Even otherwise, the alleged recovery is sought to be made after 7 after considerable time of 15 years, therefore, this appears to be prima facie delayed and barred by limitation. 10. In view of the foregoing discussion, the writ petition is allowed. and the impugned order 28.05.2018 (Annexure P-1) so far as it refused to set aside / quash the recovery order dated 21.04.2006 (Annexure P-4) and order dated 25.04.2006 (Annexure P-5), is hereby set aside/quashed. As a result thereof, order dated 21.04.2006 (Annexure P-4) and order dated 25.04.2006 (Annexure P-5) are also set aside. 11. The writ petition is allowed to the extent indicated herein-above. Sd/- Sd/- (Sachin Singh Rajput ) Judge Ami AMITA DUBEY Digitally signed by AMITA DUBEY Date: 2025.10.15 18:10:50 +0530