1 2025:CGHC:61433 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 5334 of 2019 1 - Ishwari Prasad Tikariha S/o Late Shri Seetaram Tikariha Aged About 65 Years R/o Shiksha Nagar, Ward No.7, Qrt. No. E/2 Durg, District Durg Chhattisgarh ... Petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Urban Administration Department Mantralaya Mahanadi Bhawan, Atal Nagar, Raipur, District Raipur Chhattisgarh 2 - General Administration Department Pension Committee, State Of Chhattisgarh, Through Its President, Office At Mahanadi Bhawan, Naya Raipur, Atal Nagar, Raipur District Raipur Chhattisgarh 3 - Commissioner Municipal Corporation Durg, District Durg Chhattisgarh ... Respondents For Petitioner : Mr. Praveen Dhurandhar, Advocate For Respondents No.1 & 2/State : Mr. Amandeep Singh, PL For Respondent No.3 : Mr. Vimlesh Bajpai, Advocate PRIYANKA VERMA Digitally signed by PRIYANKA VERMA Date: 2025.12.17 17:15:42 +0530 2 Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 17/12/2025 1. This Writ Petition has been filed challenging the recovery order dated 06.11.2018 (Annexure-P/1), whereby a direction has been issued by the Commissioner, Municipal Corporation, Durg, against the petitioner to deposit Rs.11,027/- on account of erroneous pay fixation. 2. Case of the petitioner is that he was working as a daily wager on the post of Lower Division Clerk till his regularization and thereafter, he was superannuated from service in the year 2013. Earlier, the petitioner had also filed WPS No.5022/2016. Thereafter, the Pension Grievances Redressal Committee, after affording an opportunity of hearing to both the petitioner and the Department, settled all the grievances and subsequently, respondent No.3 issued the impugned recovery order dated 06.11.2018 (Annexure-P/1). Hence, this Petition. 3. Learned counsel for the petitioner submits that the petitioner belongs to category of Class-III employee. He further submits that after the retirement, such recovery is impermissible in law and places reliance in the matter of State of Punjab Vs. Rafiq Masih (White Washer)1. 4. On the other hand, learned counsel for the respondent/State supports the impugned order and fairly admits that after settlement of the grievances by the High Power Committee, the Department found that there was excess payment, therefore, a recovery order was passed. 1 (2015) 4 SCC 334 3 5. Heard learned counsel for the parties and also perused the documents annexed with the petition carefully. 6. Recently in the matter of Jogeshwar Sahoo & Ors Vs. the District Judge, Cuttack and Ors2, an issue came up before the Hon'ble Supreme Court that whether recovery of amount extended to the appellants (therein) while they were in service is justified after their retirement, that too without affording any opportunity of hearing, wherein, their Lordships in the Supreme Court observed that restraining back recovery of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. It is also observed that a government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family and if he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it, as any subsequent action to recover the excess payment will cause undue hardship to him. The material portion of the above judgment is reproduced hereunder for ready reference:- "8) The law in this regard has been settled by this Court in catena of judgments rendered time and again; Sahib Ram vs. State of Haryana3, Shyam Babu Verma vs. Union of India4, Union of India vs. M. Bhaskar5 and V. Gangaram vs. Regional Jt. Director6 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors7. 2 2025 INSC 449 : (SLP (C) No.5918/2024) decided on 04.04.2025 3 (1995) Supp (1) SCC 18 4 (1994) 2 SCC 521 5 (1996) 4 SCC 416 6 (1997) 6 SCC 139 7 (2022) SCC online SC 536 4 9) This Court has consistently taken the view that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It is held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered. 10) In Thomas Daniel (supra), this Court has held thus in paras 10, 11, 12 and 13: “10. In Sahib Ram v. State of Haryana1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus: “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” 11. In Col. B.J. Akkara (Retd.) v. Government of India2 this Court considered an identical question as under: “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against 5 recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. 29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA 6 was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9- 2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.” 12. In Syed Abdul Qadir v. State of Bihar3 excess payment was sought to be recovered which was made to the appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/understanding of a Rule or Order. It was held thus: “59. Undoubtedly, the excess amount that has been paid to the appellant 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 7 Government of Bihar. Learned counsel appearing on behalf of the appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. 13. In State of Punjab v. Rafiq Masih (White Washer)4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover. xxxxxxxxx 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 hereinabove, we may, as a ready reference, summarise the following 8 few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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 view of the aforesaid principles and considering the fact that the petitioner was superannuated from service on 31.07.2013 and recovery order has been issued for an amount of Rs.11,027/-, further considering that petitioner belongs to category of Class-III employee and also considering the circumstances in which he was retired, this Court is of the considered view that the order of recovery of excess payment would cause undue hardship to the petitioner/retired employee. Further, it is not in dispute that such excess payment was made only on account of erroneous pay fixation due to negligence of respondent/Authorities and not on account of any fraud or misrepresentation of employee concern. 8. For the foregoing and in light of the principles laid down in Jogeshwar Sahoo (Supra), this Court reaches to the conclusion that impugned 9 recovery order (Annexure-P/1) for the excess payment is not justifiable in the facts situation of the case and thus same deserves to be and is hereby quashed/set-aside. 9. Respondent No.3 is directed that if any amount is recovered on the basis of the impugned order, the same shall be refunded to the petitioner within a period of 120 days from the date of this order. 10.The Petition is allowed to the extent indicated above. Sd/- (Deepak Kumar Tiwari) Judge Priyanka