1 2025:CGHC:2533 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 738 of 2022 1 - Vishnu Prasad Sahu S/o Johan Sahu Aged About 62 Years Retired Assistant Sub Inspector, R/o Ward No. 25, Kumharpara, District Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh --- Petitioner versus 1 - State Of Chhattisgarh Through Secretary Department Of Home, Mahanadi Bhawan, Mantralaya New Raipur, Chhattisgarh., District : Raipur,Chhattisgarh 2 - Director General Of Police Police Headquarter, Atal Nagar, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3 - Superintendent Of Police Mahasamund, District Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh --- Respondent(s) WPS No. 956 of 2022 1 - Tej Ram Sahu Son Of Purandar Sahu Aged About 62 Years Retired Head Constable, R/o Village Putka, Tahsil Saraipali, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ---Petitioner Versus 1 - State Of Chhattisgarh Through Department Of Home, Mahanadi Bhawan, Mantralaya, New Raipur Chhattisgarh., District : Raipur, Chhattisgarh RAVI SHANKAR MANDAVI Digitally signed by RAVI SHANKAR MANDAVI Date: 2025.02.12 21:02:02 +0530 2 2 - Director General Of Police, Police Headquarter, Atal Nagar, Raipur, District - Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Superintendent Of Police, Mahasamund, Raipur, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh --- Respondent(s) WPS No. 1061 of 2024 1 - Surendra Prasad Chaturvedi S/o Late Shri Gopinath Chaturvedi Aged About 63 Years R/o Vaishnavi Vihar, Uslapur, Quarter No.- 36, Phase-1, Tahsil- Takhatpur, P.S.- Sakri, District- Bilaspur, 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. 2 - Inspector General Of Police (Igp) O/o Inspector General Of Police, Near Nehru Chowk, Bilaspur Range, District- Bilaspur, Chhattisgarh. 3 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Bilaspur Division, District- Bilaspur, Chhattisgarh. 4 - Superintendent Of Police (Sp) O/o Superintendent Of Police, Bilaspur, District- Bilaspur, Chhattisgarh. --- Respondent(s) WPS No. 5602 of 2023 1 - Pradeep Kumar Dahire S/o Late Shri Ramsahay Dahire Aged About 64 Years R/o Sahid Gopichand Colony, Jarhabhata, Bilaspur, Police Station- Civil Line, Tahsil And District Bilaspur (C.G.) ---Petitioner Versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Water Resource, Mahanadi Bhawan, Mantralay, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District- Raipur (C.G.) 3 2 - Chief Engineer Office Of Chief Engineer, Hasdeo Basin, Water Resources Department, Bilaspur, District Bilaspur (C.G.) 3 - Divisional Joint Director Office Of Divisional Joint Director, Treasury- Accounts And Pension, Near Collector Office, Bilaspur, District Bilaspur (C.G.) 4 - Engineering Administrative Officer Office Of Chief Engineer, Hasdeo Basin, Water Resources Department, Bilaspur, District Bilaspur (C.G.) --- Respondent(s) WPS No. 7747 of 2023 1 - Shiv Charan Netam S/o Late Shri S.D. Netam Aged About 63 Years R/o Village- Javargaon, Post- Aroud, P.S.- Arjuni, Tahsil And District Dhamtari (C.G.) ---Petitioner Versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/ Police, Mahanadi Bhawan, Mantralay, Police Station And Post- Rakhi, Atal Nagar, Nawa Raipur, District- Raipur (C.G.) 2 - Director General Of Police (Dgp) Police Head Quarter (Phq), Sector-19, P.S. And Post- Rakhi, Atal Nagar, Nawa Raipur, District Raipur (C.G.) 3 - Inspector General Of Police (Igp) O/o Inspector General Of Police, Raipur Range, District Raipur (C.G.) 4 - Divisional Joint Director O/o Divisional Joint Director, Treasury- Accounts And Pension, Raipur Division, District Raipur (C.G.) 5 - Superintendent Of Police (Sp) O/o Superintendent Of Police, Dhamtari, District Dhamtari (C.G.) --- Respondent(s) WPS No. 1167 of 2024 1 - Hulasi Singh Raj S/o Late Shri Dayal Singh Aged About 64 Years R/o Village Baniyadeeh, Post Dhaniya, Tahsil And P.S. Seepat, Distt. Bilaspur (C.G.) ---Petitioner 4 Versus 1 - State Of Chhattisgarh Through Its Secretary, Department Of Education, Mahanadi Bhawan, Mantralaya, Police Station And Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur (C.G.) 2 - Divisional Joint Director O/o Divisional Joint Director, Treasury Accounts And Pension, Bilaspur Division, Distt. Bilaspur (C.G.) 3 - District Education Officer (Deo) O/o District Education Officer, Bilaspur , Distt. Bilaspur (C.G.) 4 - Block Education Officer (Beo) O/o Block Education Officer, Block Masturi, Distt. Bilaspur (C.G.) --- Respondent(s) (Cause-title taken from Case Information System) For Petitioner(s) : Mr. Abhishek Pandey, Advocate with Ms. P.S. Nikita, Advocate For State/Respondent(s) : Mr. Suyashdhar Badgaiya, Dy. Government Advocate Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 14/01/2025 1. Heard Mr. Abhishek Pandey, Advocate with Ms. P.S. Nikita, learned counsel for the petitioner/s as well as Mr. Suyashdhar Badgaiya, Dy. Government Advocate for the State/respondent/s. 2. In these batch of writ petitions, common issue arises for determination is whether recovery of excess amount of payment made to a Class-III employee can be recovered by the respondent authorities as they have given consent in any document relating to recovery. These Writ Petitions were filed by the Head Constable/Assistant Sub-Inspectors/ Inspectors/Head 5 Master holding Class-III posts in the Police Department and the Ministerial Class-III employees of the other Department, challenging the order for recovery of the amount paid in excess to them after retirement. All these writ petitions are for quashing the subject recovery against each of the petitioners on the ground that they are discharging the duties as Class-3 employees and excess payment has been made and the same was made on account of error on the part of the respondent – State Government without there being any misrepresentation or false statement on the part of the petitioners. 3. Since common question of law and facts are involved in these writ petitions, they are being heard and decided by this common order. For sake of convenience and decision making of these Writ Petitions, the facts of WPS No.738/2022 are considered. The issue involved in these Writ Petitions are whether after retirement of the petitioners, recovery of amount paid in excess during the service period can be recovered by the respondents state authorities. 4. The brief facts as projected in the WPS No.738/2022 is that the petitioner retired from post of Assistant Sub Inspector Mahasamund, on 31 August 2021. After retirement, S.P. Mahasamund issued impugned order stating that petitioner has been paid extra money as salary and hence he would have to face deduction in final payment or will have to pay difference 6 amount in cash. As the petitioner had no choice except to accept the deduction in his final payment, he submitted his consent for deduction his final Gratuity payment, by letter dated 11/09/21, as ordered by S.P. Mahasamund. On 20/10/21 S.P. Mahasamund issued letter to Treasury officer to implement deduction of Rs 1,44,291 (one lakh, fourty four thousand, two hundred ninty one Rupees), from Final Gratuity payment, and remaining amount to be paid to petitioner. As forcefully deduction has been done without giving any opportunity of hearing petitioner's prayer and as extra payment done years ago was not petitioner's fault making such deduction arbitrary, illegal and erroneous and prayed to refund Rs,1,44,291/- along with interest. 5. Return on behalf of the respondents have been fled and it is submitted that after due verification and preparation of his pension and other retiral dues. On examination of the service book of the petitioner, the respondent authorities raised certain objections regarding the fixation of salary on account of stoppage of his increments on some occasions and the same was duly informed to the petitioner’s department. It is also submitted that a consent letter for recovery was also duly signed by the petitioner wherein it has been specifically mentioned that, if excess payment is made or if there is any dues then the same may be recovered from the gratuity amount of the petitioner. 6. Shri Abhishek Pandey, learned counsel for the petitioner/s 7 submitted that the impugned recovery order is illegal and bad in law. The impugned order is issued after retirement of the petitioner and the excess amount paid during the service period of the petitioner cannot be recovered from the retiral dues including gratuity of the petitioner. Petitioner was not given any opportunity of hearing before issuing the impugned order. The petitioner was a class III employee hence no recovery can be deducted from his retiral dues. He placed reliance on the judgment of the Hon’ble Supreme Court in case of State of Punjab and others Vs. Rafi Masih (white Washer) and others reported in (2015) 4 SCC 334. 7. On the other hand learned State counsel vehemently opposes the submissions of learned counsel for the petitioner and submitted petitioner had signed undertaking that in the event any excess payment is found, the same may be recovered from his gratuity. Therefore, he is bound by his undertaking. 8. Excess amount paid to the petitioner would amount to undue enrichment. Hence impugned order does not suffer from any illegality and does not require any interference from this Court. He placed reliance on judgment of the Hon’ble Supreme Court in case if Chandi Prasad Uniyal and others Vs. State of Uttaakhand and others reported in (2012) 8 SCC 417. 9. I have heard learned counsel for the parties and perused the record. 8 10. From perusal of records it is evident that the petitioners retired from services after attaining age of superannuation. At this juncture it would be relevant to notice the judgment of the Hon’ble Supreme Court in case of Rafq Masih (Supra) where in Supreme Court has clearly held certain situations under which recoveries would become impermissible. 11. Paragraph 18 of the said judgment is reproduced hereinunder:- “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. (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 12. The impugned recovery orders were passed after the retirement of the petitioners for recovery of excess amount paid during their services. Placing reliance upon the case of Rafq Masih (supra) the Hon’ble Supreme Court in case of Thomas Daniel Vs. State of Kerala and others reported in 2022 SCC OnLine 536 has quashed the recovery of excess amount paid to the petitioner and observed in paragraph 9 as under:- “9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud 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 payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.” 13. So far as undertaking given by the employees/petitioners is concerned, the Division Bench of this Court has consider this aspect in WA.265 of 2020 in the matter of State of Chhattisgarh and others vs. Roshan Lal decided on 09.12.2021 and held in 10 para 14 and 15 as under : “14. While passing the order dated 22.09.2021 in State of Chhattisgarh & Others vs. Labha Ram Dhruv and the batch of cases, the Division Bench of this Court had observed as follows: 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. 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. 10. Insofar as, the order passed by this Court in the matter of Pramila Mandavi, referred to above, is concerned, a plain reading of the order would reveal that the facts as to whether the Revision of Pay Rules makes an enabling provision to obtain undertaking and thereafter entitles the employer to make recovery has not been considered. Similarly, the effect of judgment in the matter of Rafiq Masih (Supra) making recovery of an amount paid to Class-III or Class-IV employees has also not been dealt with. Therefore, the judgment passed in the Writ Appeals is 11 distinguishable on the strength of law laid down by conjoint reading of the judgments rendered by the Hon’ble Supreme Court in the matters of Rafiq Masih and Jagdev Singh (Supra). 15. A perusal of the above paragraphs would go to show that the Division Bench has recorded that in Pramila Mandavi (supra), this Court did not consider as to whether the Revision of Pay Rules, 2009 enables the authorities to obtain an undertaking, permitting the employer to make recovery and also did not advert to the effect of judgment in the case of Rafiq Masih (supra) laying down that no recovery shall be effected from employees belonging to Class-III and Class-IV service (or Group-C and Group-D service). It was also noted that even if it is held that an undertaking would operate in absence of an enabling provision under the Rules to take an undertaking whereby the employee undertakes to refund back any excess payment, no recovery can be effected from the employees belonging to Class-III and Class-IV service (or Group- and Group-D service) in terms of Rafiq Masih (supra) and also in case the amount sought to be recovered had been continued to be paid for a period in excess of 5 year.” 14. Considering the aforesaid view already taken and decided by the Division Bench of this Court, I am fortified by the view taken by the Division Bench and the undertaking given by the employee would of no consequence. 15. The petitioners are class III employees. Excess amount was not paid on account of any misrepresentation or fraud of the petitioners. The impugned recovery orders were issued after their retirement. Hence, in the light of above authoritative pronouncement of the Hon'ble Supreme Court coupled with the facts of these Writ Petitions this Court has no hesitation to hold 12 that the same deserve to be allowed. 16. Therefore the impugned recovery orders passed in respective Writ Petitions are quashed and set aside. Any amount recovered pursuant to the impugned orders shall be refunded to the petitioners within a period of 90 days from the date of receipt of copy of this order. The admissible retiral dues which has not been paid to the petitioners if any will be released by the respondents within that period. 17. No order as to cost. Sd/- (Amitendra Kishore Prasad) Judge Ravi Mandavi