Khem Ram Rajak v. State Of Chhattisgarh

-1NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7056 of 2018 Khem Ram Rajak S/o Late Dashrath Lal Rajak Aged About 56 Years Time Keeper, Working At Office Of Public Works Department (B/R), Division- Kanker, District Kanker Chhattisgarh. ---- Petitioner

Versus

1. State Of Chhattisgarh Through The Secretary, Department Of Public Works, Atal Nagar Mahanadi Bhawan, New, Raipur Chhattisgarh.

2. Executive Engineer Public Works Department (B/R), DivisionKanker, District Kanker Chhattisgarh.

3. Sub- Divisional Officer Public Works Department (B/R), SubDivision- Kanker, District- Kanker Chhattisgarh. ----Respondents For Petitioner :

Mr. Somkant Verma, Advocate For State :

Ms. Sunita Jain, Panel Lawyer Hon'ble Shri Justice P. Sam Koshy Order on Board 26/10/2018 1.

The order under challenge is the order of recovery dated 17.10.2018, whereby the respondents have passed an order for recovering an amount of Rs. 1,19,237/- for an excess amount of payment made to the petitioner during the period 01.01.2016 to 29.02.2018.

2.

The counsel for the petitioner submits that the petitioner is a low paid class-III employee and is working as a Timekeeper under the respondents and that there is no false representation or a fraud played by the petitioner while getting the alleged excess payment so made to the petitioner. He further submits that the said excess payment is impermissible under law for being recovered in the light of the judgment of the Hon'ble Supreme Court in the case of "State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc."

-2reported in 2015 AIR SCW 501. Thus prayed for setting aside/quashment of the impugned order of recovery. 3.

The State counsel, however opposing the petition submits that it is not a case, where the petitioner has already retired from service, rather it is a case where he is in service and therefore, if at all, if the petitioner has been paid excess than what he was otherwise entitled for, the respondents were entitled for recovering the same and therefore the impugned order does not warrant interference. 4.

Having heard the contentions put forth on either side and on perusal of the record, the undisputed facts as it stand is that the petitioner is a class-III employee working as a Timekeeper with the respondents. The petitioner has been issued with an order of recovery Annexure P/1 dated 17.10.2018. The recovery order was in respect of certain excess payment made to the petitioner during the period 01.01.2016 to 29.02.2018. It is also not the case of the respondents that the said amount of excess payment has been received by the petitioner by playing fraud or by making any misrepresentation for getting 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 "Rafiq Masih" (supra), where certain situations have been mentioned by the Hon'ble Supreme Court and under which situations, the recoveries have been held to be impermissible under law:

"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

-3decisions 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."

6.

If we take into consideration the aforesaid observations/principles of law laid down by the Hon'ble Supreme Court and when we compare those situations with the facts of the present case, it would clearly reflect that the petitioner is a class-III group "C" employee and that there was no misrepresentation or fraud played by the petitioner in getting the said alleged excess payment. Moreover, the excess

-4payment had been first made to the petitioner for a period more than two years i.e. w.e.f. 01.01.2016 onwards.

7.

Given the facts, this Court is of the opinion that the case of the petitioner squarely falls within the situations cited by the Hon'ble Supreme Court in the preceding paragraphs and thus the impugned order of recovery in terms of the judgment of the Hon'ble Supreme Court was bad in law as the recovery part was impermissible under law.

8.

For the aforesaid reasons, the writ petition deserves to be and is accordingly allowed. The impugned order of recovery stands setaside/quashed with consequences to follow. Sd/- (P. Sam Koshy) Judge Ved