1 2025:CGHC:56860 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 9808 of 2019 Pratap Singh Tirkey S/o Late Shri Johan Tirkey Aged About 63 Years, Retired Head Constable No. 42, Village Basadih, Post Saraipali, Tahsil Bagicha, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Petitioner. 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, District : Raipur, Chhattisgarh 2 - Inspector General Of Police (IGP) Office Of Inspector General Of Police, Ambikapur District Surguja Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 3 - Superintendent Of Police (SP) Office Of Superintendent Of Police (Sp) District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Respondents. For Petitioner : Mr. K. R. Nair, Advocate. For Respondent/State : Mr. Amandeep Singh, Panel Lawyer. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 24.11.2025 1) This Writ Petition under Article 226 of the Constitution of India has been filed for the following reliefs:- Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT, o=HIGH COURT OF CHHATTISGARH, st=Chhattisgarh, c=IN Date: 2025.11.25 10:47:53 +0530 2 "10.1 That, this Hon'ble Court may be pleased to set aside the recovery of Rs.5,36,531/- made from the gratuity of petitioner and the respondent authorities may please be directed to refund the entire amount of recovery to the petitioner with interest @ 18% per annum. 10.2 That, this Hon'ble Court may be pleased to direct the respondents to pay cost and expenses of this litigation. 10.3 That, this Hon'ble Court may further be please to issue any other appropriate orders or directions to the respondents in the interest of justice in favour of the petitioner." 2) The key facts of the case are that the petitioner was appointed as Constable in the Police Department in the year 1986 and after completion of services he was retired on 31.12.2018. During his services, on account of negligence in the discharge of duties departmental enquiry was held against him and other police personnel and the Authority imposed the punishment of reducing the petitioner to the minimum of the pay scale for a period of 3 year by order dated 28.02.1998 (Annexure-P/2). However, during services said punishment was not implemented by the Department. Subsequently, after retirement, the recovery order for amount of Rs.5,36,531/- has been passed against the petitioner for the excess payment on account of said punishment. Hence, this petition. 3) Mr. K. R. Nair, learned counsel for the petitioner submits that any recovery is not permissible after the retirement as the petitioner has served the duties as Class-III employee and retired from the post of Head Constable. He also submits that recovery of such 3 huge amount after retirement is deprivation of his means and livelihood. He also places reliance in the matter of State of Punjab Vs. Rafiq Masih (White Washer)1 and prays to allow the petition. 4) Apart from the above, learned counsel for the petitioner also submitted that, as per information received, the amount has already been recovered and adjustment has been made by the Authorities from the retiral dues of the petitioner. 5) Shri Amandeep Singh, Panel Lawyer for the respondent/State would oppose the prayer of the petitioner and submits that as the adjustment of amount has been made from the gratuity so the petitioner may avail remedy under the Gratuity Act. He also places in the matters of High Court of Punjab and Haryana and Ors vs. Jagdev Singh2 and Chandi Prasad Uniyal and Ors Vs. State of Uttarakhand and Ors3 and prays to dismiss the petition. 6) Heard learned counsel for the parties and perused the record. 7) Recently in the matter of Jogeshwar Sahoo & Ors Vs. the District Judge, Cuttack and Ors4, 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 1 (2015) 4 SCC 334 2 (2016) 14 SCC 267 3 (2012) 8 SCC 417 4 2025 INSC 449 : (SLP (C) No.5918/2024) decided on 04.04.2025 4 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 Haryana5, Shyam Babu Verma vs. Union of India6, Union of India vs. M. Bhaskar7 and V. Gangaram vs. Regional Jt. Director8 and in a recent decision in the matter of Thomas Daniel vs. State of Kerala & Ors9. 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 5 (1995) Supp (1) SCC 18 6 (1994) 2 SCC 521 7 (1996) 4 SCC 416 8 (1997) 6 SCC 139 9 (2022) SCC online SC 536 5 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 recovery of excess wrong payment of 6 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 7 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 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 8 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 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 9 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 few situations, wherein recoveries by the employers, would be impermissible in law: 10 (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.” 8) In view of the aforesaid settled principle and considering the fact the petitioner was superannuated from the services on 31.12.2018 and recovery order has been issued on 09.03.2019, further considering that revised pay fixation has been made only at the time of retirement on 06.12.2018 and particularly considering that punishment has not been implemented during the services and other circumstances in which he was retired, this Court is of the considered view that the order of recovery of payment from retiral dues would cause undue hardship to the petitioner/retired employee as he belonged to Class-III category employee. Further, it is not in dispute that such recovery during retirement was made 11 only because the punishment was not implemented during the services and due to negligence of respondent/Authorities and there was no fault on the part of the employee. Hence, recovery of amount from retiral dues is not permissible in the eye of law. 9) For the foregoing, the concerned Authorities are directed to not recover amount from retiral dues of the petitioner. However, if any amount is already adjusted or recovered, 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 Ajay