Ramavtar Soni v. State Of Chhattisgarh

-1NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 7818 of 2018 Ramavtar Soni S/o Late Rangdev Soni Aged About 61 Years Time Keeper, Working At Office Of Public Works Department (B/R), SubDivision Narharpur, District Kanker Chhattisgarh ---- Petitioner

Versus

1. State Of Chhattisgarh, Through The Secretary, Department Of Public Work, Atal Nagar, Mahanandi Bhawan, New Raipur District Raipur Chhattisgarh

2. Executive Engineer, Public Work Department (B/R), Division Kanker, District Kanker, Chhattisgarh

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

Mr. Somkant Verma, Advocate For State :

Mr. S.P. Kale, Dy. A.G.

Hon'ble Shri Justice P. Sam Koshy Order on Board 30/11/2018

1. The order under challenge is Annexure P/1 dated 05.11.2018, whereby the respondents have issued for an order of recovery of an amount of Rs.1,76,099/- as an excess amount paid to the petitioner. Perusal of the impugned order shows that the excess amount was paid to the petitioner on 01.01.2016 and is paid up till 30.06.2017.

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

-2others etc. vs. Rafiq Masih (White Washer) etc." reported in 2015 AIR SCW 501. Thus prayed for setting aside/quashment of the impugned order of recovery.

3. The counsel for the petitioner submits that the petitioner herein is to retire on 30.06.2019 and as such it is only about 7 months left for petitioner to retire and therefore on this ground also the recovery order initiated against the petitioner would be impermissible under law in the light of the judgment of "Rafiq Masih" (supra).

4. 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.

5. 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 05.11.2018. The recovery order was in respect of certain excess payment made to the petitioner during the period 01.01.2016 to 30.06.2017. 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.

6. 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

-3and 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 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. 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

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

8. 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.

9. 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