1 2025:CGHC:55483 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4306 of 2023 Anoop Das S/o Late. D.K. Das Aged About 62 Years Retired From The Post Of Excise Constable, R/o Danteshwari Ward, Behind Bastar Diesel, Jagdalpur, District - Bastar, (C.G.) ... Petitioner versus 1 - State of Chhattisgarh Through - Secretary, Department of Excise, Mantralaya, Mahanadi Bhawan, New Raipur, Atal Nagar, Raipur (C.G.) 2 - The Excise Commissioner Aabkari Bhawan, Chhokara Nala, Labhandhi, Raipur, District - Raipur (C.G.) 3 - Deputy Commissioner Mahasamund, District - Mahasamund, (C.G.) 4 - Joint Director Treasury, Account And Pension Raipur, District - Raipur (C.G.) ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Pushkar Sinha, Advocate For State/Respondents : Mr. Sakib Ahmed, P.L. Hon’ble Shri Amitendra Kishore Prasad, Judge Order on Board 13.11.2025 1. The petitioner has filed this writ petition with the following relief(s):- “10.1 That Hon'ble Court may kindly be pleased to direct the Respondents to YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.11.14 10:50:53 +0530 2 produce the entire records relating to the service of petitioner. 10.2 That, Hon'ble Court may kindly be pleased to issue writ in the nature of Certiorari/Mandamus and quash the order dated 22.06.2023 (Annexure P/1) passed by the respondent no. 3. 10.3 That, Hon'ble Court may kindly be direct the respondents to release the retiral benefits of petitioner for which the petitioner is legally entitled and further release the pensionary benefits forthwith. 10.4 That, this Hon'ble Court may kindly be pleased to direct the respondents to pay interest @ 12% on the Gratuity and Provident Fund amount. 10.5 That, this Hon'ble Court may kindly be pleased to direct the respondents to pay cost of the petition amounting to Rs.25, 000/-. 10.6 Any other relief, which Hon'ble Court deems fit and proper in the circumstances of the case and petition, may kindly be allowed with costs.” 2. Learned counsel for the petitioner submits that the petitioner was initially appointed on the post of Salesman as a contingency paid employee for a period of 89 days vide order dated 07.01.1994, on the pay scale of Rs. 950–1530/-. Subsequently, vide order dated 02.01.2009, a formal order of regularization was passed, whereby the petitioner was regularized on the post of Excise Constable and 3 was granted the regular pay scale of Rs. 3050–75–3950–80– 4590. He further submits that vide order dated 24.05.2019, the services of the petitioner were continued from his initial appointment of the year 1994, and accordingly, his past services were counted for the purpose of pay fixation. Pursuant to the said order, pay fixation was done, and the petitioner was paid salary as per the revised pay scale till his retirement on 30.09.2022. 3. It is submitted that after retirement, the petitioner made a representation seeking release of all his retiral benefits, including Gratuity, Provident Fund, G.I.S., Leave Encashment, and Pension, for which he is legally entitled. However, learned counsel submits that instead of releasing the retiral benefits, the respondent authority passed the impugned order dated 22.06.2023 (Annexure P/1), directing recovery of an alleged excess amount of Rs.3,04,336/- on account of wrong pay fixation and withheld all retiral benefits of the petitioner including gratuity, provident fund, and pension. 4. It is further contended that the pay fixation of the petitioner was done by the respondent No.3 himself in accordance with the circulars issued by the State Government, and after the retirement of the petitioner, the respondents cannot turn around and direct recovery of the said amount without affording a proper opportunity of hearing. Such an action is arbitrary, discriminatory, malafide, and in gross violation of the principles of natural justice and 4 fundamental rights. He further places reliance on the judgment of the Hon’ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors., (2015) 4 SCC 334 and Thomas Daniel vs. State of Kerala, 2022 SCC OnLine SC 536, wherein it has been categorically held that recovery of excess payment would be impermissible in certain situations, including cases of retired employees and Class–III employees. It is submitted that the petitioner retired as a Class–III employee, and the recovery has been ordered post retirement after about nine months of his superannuation. Thus, the petitioner’s case is squarely covered under the parameters laid down in Rafiq Masih (supra), and therefore, the recovery order is bad in law. 5. It is also submitted that there is no fault, misrepresentation, or fraud on the part of the petitioner in the process of pay fixation, and any mistake, if at all, was on the part of the respondent authorities. Hence, the petitioner cannot be penalized for the administrative lapse of the respondents. Therefore, learned counsel prays that the impugned order dated 22.06.2023 (Annexure P/1) be quashed and set aside, and further, the respondents be directed to release all the retiral dues of the petitioner forthwith, along with consequential benefits. 6. Learned counsel for the petitioner also places reliance upon the decision rendered by the Division Bench of this Court in case of State of Chhattisgarh v. Labha Ram Dhruv in Writ Appeal 5 No.264 of 2020 and also in case of State of Chhattisgarh and others v. Roshan Lal Baghel in Writ Appeal No.265 of 2020. He submits that recovery made by respondents from the petitioner is erroneous and not permissible and hence, the order dated 22.06.2023 insofar as it relates to the petitioner may be set aside and direction be issued to respondent authority to return back the amount recovered from the petitioner. 7. On the other hand, learned counsel for the State submits that the petitioner received excess payment due to wrong fixation of pay, and therefore, the impugned order dated 22.06.2023 directing recovery of Rs. 3,04,336/- is legal and justified. It is submitted that the recovery has been effected after obtaining a written undertaking from the petitioner at the time of pay fixation in 2019, wherein he consented to refund any excess amount paid to him. 8. Learned State counsel further submits that during pension processing, an objection was raised regarding the excess payment, and accordingly, the said amount was withheld while releasing the remaining retiral dues. The Pension Payment Order (PPO) has since been issued on 14.08.2022 (Annexure R/2). Reliance is placed on the judgments of the Hon’ble Supreme Court in High Court of Punjab & Haryana vs. Jagdev Singh (2016) 14 SCC 267 and Chandi Prasad Uniyal vs. State of Uttarakhand (2012) 8 SCC 417, which uphold recovery of excess payment, especially when an undertaking exists. Thus, it is 6 submitted that the recovery is lawful, the petitioner’s retiral benefits stand settled, and the present petition is devoid of merit and liable to be dismissed. 9. I have heard learned counsel for the parties and also perused the documents annexed with this writ petition. 10. The Hon’ble Supreme Court in the case of Rafiq Masih (supra) held as under:- “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. (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. 7 (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.” 11. The Hon'ble Division Bench of this Court in case of Labha Ram (supra) observed as under: "9. In the case at hand, the Revision of Pay Rules, 2009 and 2017 do not make any enabling provision reserving option for the employer to seek refund of the amount paid in excess, by making the employee to furnish an undertaking. Even if we conclude, for the sake of arguments, that even in the absence of enabling provision under the Rules, undertaking given by the employee would operate, the fact remains that against the classes of employees against whom recovery would be impermissible in law, as held by the Hon'ble Supreme Court in the matter of Rafiq Masih (Supra), recovery from the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service) would still be impermissible in law. 8 Meaning thereby that even when undertaking is submitted by the employee, but he otherwise belongs to Class-III and Class-IV service, and the amount has been paid more than 5 years back, the law declared by the Hon'ble Supreme Court in the matter of Rafiq Masih (Supra) would still hold the field in favour of such employees, because the judgment in the matter of Rafiq Masih (Supra) has not been overruled, but only clarified, by the Hon'ble Supreme Court in its later judgment in the matter of Jagdev Singh, Supra. x x x 11.In view of the above and on finding that in the cases at hand, the recovery of the excess payment has been made more than 12 years ago; the writ petitioners belong to Class-III cadre in the services of the State Government, and small amount has been paid to them in a long span of time, which has now accumulated and the recovery of substantial amount is to be made against them, we are inclined to hold that the Writ Appeals have no substance. They deserve to be and are hereby dismissed." 12. In view of the above discussion and the authoritative pronouncements of the Hon’ble Supreme Court, this Court proceeds to examine the facts of the present case in the proper legal perspective. It is an admitted position that the petitioner was 9 appointed initially as a contingency paid employee in the year 1994 and was subsequently regularized on the post of Excise Constable vide order dated 02.01.2009. Thereafter, in the year 2019, his pay was fixed by the competent authority by counting his services from the initial date of appointment, i.e., 1994, and salary was regularly paid to him as per such fixation till his retirement on 30.09.2022. The alleged excess payment thus arose solely due to a bona fide error in pay fixation on the part of the respondent authorities. 13. It is also undisputed that the petitioner had neither made any misrepresentation nor committed any fraud for obtaining the said payment. The fixation of pay was done by the department itself in accordance with its own circulars, and the petitioner had merely received salary as determined by the competent authority. Therefore, the fault, if any, lies with the respondents and not with the petitioner. 14. In such circumstances, recovery of the alleged excess payment after the petitioner’s superannuation is wholly unjustified and impermissible in law. The Hon’ble Supreme Court in Rafiq Masih (supra) has categorically held that no recovery can be made from retired employees or Class–III and Class–IV employees when the excess payment was not made on account of any misrepresentation or fraud on their part. The petitioner’s case 10 squarely falls within the parameters laid down in the said judgment. 15. Accordingly, in the considered opinion of this Court, the impugned order dated 22.06.2023 passed by the respondent authorities directing recovery of an amount of Rs.3,04,336/- from the retiral dues of the petitioner is illegal, arbitrary, and unsustainable in law. The said order is therefore set aside. The respondents are directed to refund the recovered amount, if any, to the petitioner within a period of 60 days from the date of receipt of a copy of this order. 16. In view of the aforesaid observations and directions, the writ petition stands allowed. The impugned order dated 22.06.2023 is hereby quashed, and necessary consequential benefits shall follow. 17. There shall be no order as to costs. Sd/- (Amitendra Kishore Prasad) Judge Yogesh