1 2026:CGHC:9110 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1445 of 2025 1 - Bedu Ram Jangde S/o Late Shri Lain Das Jangde Aged About 66 Years Subedar (M) Retired From The Officer Of Commandant, Chhattisgarh Armed Force, 2nd Battalion, Sakri, Bilaspur, Chhattisgarh, R/o Yadunandan Nagar, Bilsapur District Bilaspur Chhattisgarh ... Petitioner Versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nawa Raipur Chhattisgarh 2 - Joint Director Accounts Treasury And Pension Bilaspur Division, District Bilaspur Chhattisgarh 3 - Director General Of Police Police Headquarters, Headquarters, Raipur Chhattisgarh 4 - Additional Director General Chhattisgarh Armed Force Police Headquarters, Raipur Chhattisgarh 5 - Commandant 2nd Battalion Chhattisgarh Armed Force, Sakri, Bilaspur Chhattisgarh ... Respondents For Petitioner : Mr. Ajay Kumrani, Advocate For Respondents-State : Mr. Soumya Rai, Dy. Government Advocate SB: Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 20/02 /2026 2 1. The petitioner has filed this writ petition raising grievance that the respondent authorities have willingly withheld a sum of Rs. 5,10,001/- on the ground that the petitioner is paid excess salary during his service period and prayed for following reliefs:- “10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records of the case for its kind perusal. 10.2 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction and quash/set-aside the impugned order/communication dated 10.09.2024 (Annexure P/1) with respect to recovery to be made by the respondents. 10.3 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction and direct the respondent authorities to fix the pay of the petitioner as per last pay drawn and thereafter, release the retiral dues i.e. Gratuity, Pension and other benefits due to the petitioner along with interest at the rate of 12% per annum. 10.4 That, this Hon'ble Court may kindly be pleased to grant any other writ/writs, order/orders, relief/relief's in favour of the petitioner, which the Hon'ble Court deemed fit & just in the facts and circumstances of the case, including awarding of the costs to the petitioner.” 2. Learned counsel for the petitioner submits that in the reply filed by the Respondents/State, there is no averment that the excess payment made to the petitioner is on account of misrepresentation or fraud committed by him upon the respondents. He contended that the petitioner is a Class – 2 Employee, if for any reason due to mistake of the officials of respondent authorities, any excess amount is paid to the petitioner towards excess salary, it could not be recovered from the retiral dues of petitioner. He also submits that till the petitioner is in service, no notice or letter has been issued to him stating that he was paid excess salary. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in the case of State of Punjab & Ors Vs. Rafiq Masih (White Washer) & Ors, reported in (2015) 4 SCC 334. 3 3. On the other hand, learned counsel for the Respondents/State would submit that the petitioner was paid excess amount of salary because of wrong fixation of pay. The petitioner is holding the post of Subedar (M), which is a Class – II post and therefore, petitioner would not come under the shelter of the decision of Hon’ble Supreme Court in case of Rafiq Masih (Supra). Petitioner has submitted undertaking for refund of excess amount paid to him. 4. I have heard learned counsel for the parties and perused the documents placed on record. 5. When question is posed to the learned counsel for the Respondents/State as to what is the period in which, the petitioner was paid excess amount towards salary due to wrong fixation of pay, he submits that according to the pleadings made in reply, the period is from 2008 till the date of retirement i.e. 31.05.2019. From the pleadings made in reply, it is not appearing that the petitioner was served with any notice during his service period mentioning that the petitioner is required to refund the amount of excess payment, wrongly paid to him towards the salary, but the deduction is made vide letter dated 10.09.2024 that is, only after 05 years of his retirement that too, when the petitioner approached this Court for non-payment of his retiral dues. 6. Hon’ble Supreme Court in case of Rafiq Masih (Supra) has clearly observed that recovery from the employees, when the excess payment for a period in case of 05 years before the order of recovery is issued and recovery from the retired employee or employees who are due to retire within 01 year of the order of recovery is impermissible. The relevant paragraph of the decision of Hon’ble Supreme Court is extracted below for reference:- “18 It is not possible to postulate all situations of hardship which would govern employees on 4 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: (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 the recent decision in case of Thomas Daniel Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536), Hon’ble Supreme Court considering the decision in case of Rafiq Masih (supra) has allowed the petition filed by the employee therein and observed thus: “(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 5 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. (11). In Col. B.J. Akkara (Retd.) v. Government of India and others, (2006) 11 SCC 709 this Court considered an identical question as under: ‘27. x x x x x 28. x x x x x 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 and Others v. State of Bihar and Others, (2009) 3 SCC 475 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 6 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 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 and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiaries 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. 7 (14). x x x x x (15). Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.” 8. So far as the plea taken by State that the petitioner submitted undertaking for recovery of the amount paid I excess is concerned, the document does not bear any date as to whom, it was executed. In declaration from, the date is mentioned as 13.01.2020 i.e. after the retirement of the petitioner from service. It appears that the undertaking and the letter of declaration are of subsequent to the retirement of the petitioner. Division Bench of this Court in the case of State of Chhattisgarh & Ors Vs. Labha Ram Dhruv (supra) has considered the recovery of the amount which has been paid long ago, undertaking was stated to be submitted by employee and observed thus: “6. In Rafiq Masih (Supra), the Hon'ble Supreme Court would observe that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made a for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but 8 also their medical requirements, and a variety of sundry expenses. Based on the above consideration, the Hon’ble Supreme Court was of the view that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. 7. With the above reasoning, the Hon’ble Supreme Court carved out a class of employees and the situations in which recoveries would be impermissible in law. The same has already been reproduced while quoting para-10 of the judgment in the matter of Jagdev Singh, Supra, in the preceding paragraph. 8. While applying the ratio in the matter of Jagdev Singh, Supra, paragraph-11 is not to be read in isolation, but the same has to be read conjointly with the facts of the matter in para-2 and the class of employees against whom recovery would be impermissible, as reproduced in para-10. The requirement of submission of undertaking by the employee has to be provided under the Rules which was exactly the position in the matter before the Hon’ble Supreme Court in Jagdev Singh, (Supra). 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 9 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. 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.” 9. If the case at hand is to be considered in light of the decision of the Hon’ble Supreme Court and the Division Bench of this Court, recovery from the petitioner is impermissible because, the recovery is sought to be made from the petitioner after his retirement and that too, after 5 ½ years of his retirement, undertaking said to be executed is also after retirement. For the foregoing discussion, I am of the considered view that the respondents have arbitrarily and illegally acted in withholding an amount of Rs. 5,10,001/- from the retiral benefits of the petitioner, which is not sustainable in the eyes of law. Accordingly, the letter/communication dated 10.09.2024 (Annexure P/1) is set-aside. Respondents are directed to refund the amount of Rs. 5,10,001/- deducted from the retiral benefits of the petitioner within a period of 03 months from date of receipt of copy of order, failing which, the amount shall carry interest at the rate of 8% per annum till its realization. 10.At this stage, learned counsel for the petitioner submits that respondent authorities have issued letter to the petitioner to deposit the excess amount paid towards the leave encashment also against which, petitioner has already deposited Rs. 72,576/- in the concerned Treasury. He submits that in view of the decision of this Court in writ petition, the 10 respondents be directed to refund the amount which has been deposited by the petitioner through challan on 16.06.2025. 11.In the aforementioned facts of the case and the view taken by this Court against the recovery from petitioner on account of excess payment, petitioner is permitted to submit representation before the concerned authorities and if such a representation is submitted by the petitioner, concerned authority shall consider and take decision on the representation to be submitted by the petitioner in accordance with law, expeditiously, keeping in mind the order passed by this Court in the writ petition, preferably within a period of 02 months from the date of receipt of representation. 12. With the aforesaid observation and direction, this writ petition stands disposed of. Sd/- (Parth Prateem Sahu) Judge Dey SHUBHAM DEY Digitally signed by SHUBHAM DEY Date: 2026.02.25 10:30:33 +0530