Ashok Kumar Sahu v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 454 of 2021 Ashok Kumar Sahu Son Of Late Chandrashekhar Prasad Aged About 63 Years Retired Upper Division Teacher, Resident Of Aamatoli Road, Sunder Nagar, Sitapur, Block- Sitapur, District- Surguja (Chhattisgarh) ---- Petitioner

Versus

1.

State Of Chhattisgarh Through The Secretary, School Education Department, Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District- Raipur (Chhattisgarh) 2.

The District Education Officer Ambikapur, District - Surguja (Chhattisgarh) 3.

The Divisional Joint Director Treasury, Accounts And Pension, Ambikapur, District- Surguja (Chhattisgarh) 4.

The Block Education Officer Sitapur, District- Surguja (Chhattisgarh) ---- Respondents For Petitioner :

Mr. Harish Khuntiya, Advocate For State :

Mr. Rahul Jha, Govt. Advocate Hon'ble Shri Justice P. Sam Koshy Order on Board 10/02/2021 1.

The challenge in the present writ petition is to the order of recovery initiated by the authorities vide order dated 28.12.2020 (Annexure P/1), whereby the respondents have ordered for recovering an amount of Rs.1,10,659/- from the retiral dues payable to the petitioner.

2.

The facts of the case is that the petitioner was working under the respondents as an Upper Division Teacher and he stood retired from service w.e.f. 30.04.2020. Till the date of retirement there was no order of recovery issued by the respondents. After more than 6 months from the date of retirement, the respondents have now

issued the impugned order Annexure P/1 ordering for recovery of an amount of Rs.1,10,659/- from the retiral dues payable to the petitioner. The said alleged recovery is said to be on the basis of some erroneous fixation of pay made to the petitioner w.e.f. 01.01.2007 till 30.04.2020. According to the petitioner, he is a low paid class-III employee working under the respondents and that there is no misrepresentation or fraud played by the petitioner in receiving the alleged excess payment. That the same has been paid to the petitioner erroneously on account of the fault on the part of the officers in the Department, and for which the petitioner cannot be held liable for recovery.

3.

According to the petitioner, under the bonafide belief of having received the same justifiedly, the petitioner has consumed the same, and now the respondents would not be permitted to recover the same. According to the petitioner, the authorities could have carried out the rectification part, but they could not have initiated any recovery. The further contention of the petitioner is that the impugned order also is bad in law for the reason that the alleged excess payment made to the petitioner is of a period long back and which makes it impermissible under law for recovery after a considerable period of time in terms of the judgment of the Hon'ble Supreme Court.

4.

The State counsel on the other hand submits that the recovery is only in respect of the excess payment made to the petitioner on account of wrong fixation of pay provided to him, which the petitioner

was otherwise not legally entitled for and therefore the respondents had all the rights to recover the same.

5.

At this juncture it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of "State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc." reported in 2015 AIR SCW 501. The Hon'ble Supreme Court while deciding the said matter has laid down certain situations under which the recovery is totally impermissible under law. The situations as envisaged in the said judgment are as under :

"(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."

6.

If we consider the situations, under which the Hon'ble Supreme Court has held recoveries to be impermissible under law and compare the facts of the present case, it would clearly reflect that the case of the petitioner would squarely fall within the situations as envisaged in the judgment of the Hon'ble Supreme Court in the case of "Rafiq Masih" (supra).

7.

Given the aforesaid facts and circumstances of the case, the impugned order of recovery (Annexure P/1) dated 28.12.2020

ordering for recovery of an amount of Rs. 1,10,659/- is erroneous, bad in law and impermissible under law and the same deserves to be and is accordingly set-aside/quashed.

8.

The respondents are directed to settle the retiral dues of the petitioner without initiating any recovery. It is made clear that the indulgence of this Court is only to the extent of recovery, the respondents would be at liberty to rectify the erroneous fixation provided to the petitioner without making any recovery. If the entire amount has already been deducted by the respondent authorities, the said amount should be forthwith released to the petitioner within an outer limit of 90 days from the date of receipt of the copy of this order.

9.

With the aforesaid observations, the present writ petition stands disposed of.

Sd/- (P. Sam Koshy) Judge Ved