1 2026:CGHC:1226 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 6765 of 2021 1 - Smt. Madhu Gupta W/o Late Purushottam Prasad Gupta Aged About 46 Years R/o Village And Post Ulakiya, Police Station And Tahsil- Sitapur, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District- Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - The District Education Officer Ambikapur, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 3 - The Block Education Officer Block Sitapur, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 4 - The Joint Director Accounts And Pension, Surguja Division, Ambikapur, District- Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Harish Khuntiya, Advocate For State : Mr. Sanjeev Kumar Agrawal, PL Hon’ble Shri Justice Sachin Singh Rajput Order on Board 08/01/2026 Challenge in this writ petition is to an order / communication dated PAWAN KUMAR Digitally signed by PAWAN KUMAR Date: 2026.01.08 18:02:59 +0530 2 06.03.2021 (Annexure P-1) by which a direction was issued to recover an amount of Rs. 75,690/- from the death-cum-retrial benefits of husband of the petitioner. 2. Learned counsel for the petitioner submits that her husband was working as Head Master in Primary School in School Education Department and died in harness on 30.08.2020. While settling the retiral dues, the impugned order was passed an amount of Rs. 75,690/- was recovered from the death-cum-retiral dues of the petitioner’s husband. He submits that the alleged excess payment recovered is on account of some wrong fixation of pay during the service tenure of the petitioner’s husband. He submits that after the death of the petitioner husband, the recovery cannot be made from the death-cum-retiral dues of the petitioner’s husband. 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 and the judgment passed by this Court in case of Smt. Shashikal Gupta Vs. State of Chhattisgarh and others in WPS No. 4760 of 2020 dated 10.12.2020. 3. State counsel on the other hand opposing the writ petition submits that since the process of calculating the death-cum-retiral dues payable to the petitioner, it was detected that the husband of the petitioner while in service has been paid certain excess payment because of erroneous fixation of pay. He further submits that in the process of the erroneous fixation of pay, the husband of the petitioner has received certain excess payment which he was not otherwise entitled for. After it was detected, the respondents decided to recover the amount from the dues payable to the petitioner. 4. Heard learned counsel for the parties and perused the records. 5. There is no dispute to the fact that the husband of the petitioner was working as Head Master in Primary School. None of the counsel is in a 3 position the dispute that it is the Class-3 post and he died in harness on 30.08.2020. It is not the case of the respondents that the excess payment was paid to the deceased employee on account of some misrepresentation of fraud played. The erroneous fixation of pay can not be attributed to the deceased employee but it was on account of error on the part of the department. 6. At this juncture, it would be essential to note here the law laid down by the Hon’ble Supreme Court in case of Rafiq Masih (Supra) wherein in paragraph 18 has 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. (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. The Rafiq Masih (supra) case has further been followed 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 4 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.” 8. In view of the settled legal position, this Court is of the opinion that the impugned order cannot sustain and liable to be set aside. 9. Thus, this writ petition is allowed impugned order Annexure P-1 is set aside. The amount recovered from the death-cum-retiral dues of the petitioner if any shall be refunded to her within a period of 60 days from the date of receipt of copy of this order. No order as to cost. Sd/- (Sachin Singh Rajput) JUDGE Pawan