1 2025:CGHC:39563 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 837 of 2023 1 - Krishna Lal Sahu S/o. Late Shri Koduram Sahu Aged About 63 Years R/o. Ward No. 13, Shikshak Nagar, Abhanpur, Tahsil And P.S.- Abhanpur, District-Raipur (C.G.). ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Health And Family Welfare, Mahanadi Bhawan, Mantralay, Police Station And Post-Rakhi, Atal Nagar, Nawa Raipur, District-Raipur (C.G.). 2 - Chief Medical And Health Officer (Cmho) O/o. Cmho, Baloda Bazar, District-Balodabazar-Bhatapara (C.G.). 3 - Divisional Joint Director O/o. Divisional Joint Director, Treasury Account And Pension, Near Ghadi Chowk, Raipur, District-Raipur (C.G.). 4 - Block Medical Officer (Bmo) O/o. Bmo, Community Health Center, Bhatapara, Distt. Balodabazaar-Bhatapara (C.G.) Digitally signed by RAGHVENDRA JAT 2 ... Respondent(s) For Petitioner(s) : Mr. Abhishek Pandey, Advocate. For Respondent(s)/State : Mr. Ashutosh Shukla, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 07/08/2025 1. By way of this petition, the petitioner has prayed for following reliefs:- “(1) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case of the petitioner before this Hon'ble Court for its kind perusal. (ii) That this Hon'ble Court may kindly be pleased to set aside/quash the impugned recovery order of Petitioner dated 04.01 2023 issued by Respondent No. 4 BMO, Community Health Center, Bhatapara (Annexure P/2). (iii) That, this Hon'ble Court may kindly be pleased to direct respondent authorities to refund the whole recovery amount to the petitioner, if any amount has been recovered from the petitioner by way of recovery order dated 04.01.2023. (iv) That this Hon'ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner 3 for the mental trauma and agony. harassment and hardships suffered by him as also cost of the litigation.” 2. Learned counsel for the petitioner submits that the petitioner was working on the post of NMA in Community Health Center, Bhatapara and after attaining the age of superannuation on dated 31 05.2022 retired from service. That after passing seven months from the date of retirement on dated 04.01.2023 respondent No. 4 BMO, Community Health Center, Bhatapara issued recovery order against the petitioner for an amount of Rs. 2,83,877/- by way of excess payment which has been erroneously given to the petitioner from 01.01.2006 to 31.05.2022, that the excess payment has been made for a period in excess of 5 years before the order of recovery which is not permissible. 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), Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has also allowed 4 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). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. 5 (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 pay/allowance or on the basis of a particular 6 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 view that no recovery of the amount that has been 7 paid in excess to the appellants-teachers should be made.” 7. 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 petitioner. In the considered opinion of this Court, the case of the petitioner is squarely covered by the decision in the case of Rafiq Masih (supra). Therefore, the impugned order dated 4.1.2023 (Annexure P/2) is hereby set aside. 8. 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. The admissible retiral dues which has not been paid to the petitioner, if any, shall also be released by the respondents within the aforesaid period of 90 days. 9. With the aforementioned observation and direction, writ petition is allowed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat