Nirmal Singh Thakur v. State Of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 9374 of 2019 Nirmal Singh Thakur S/o Late Shri Ganpat Singh Thakur Aged About 62 Years R/o Pachpedi Naka, Laxmi Nagar, Ward No. 51, Raipur, Police Station Tikrapara, Tahsil & District Raipur Chhattisgarh. --- Petitioners

Versus

1. State of Chhattisgarh through Its Secretary, Department of Home / Police, Mahanadi Mantralaya, Police Station and Post Rakhi, Atal Nagar, Raipur, District Raipur Chhattisgarh.

2. Director General of Police (DGP) Police Head Quarter (PHQ), Near Mahanadi Mantralaya, Police Station and Post Rakhi, Atal Nagar, Raipur, District Raipur Chhattisgarh.

3. Deputy Inspector General of Police (D.I.G.P.) Department of Crime Investigation, Police Head Quarter, Sector - 19, New Raipur, Atal Nagar, Tahsil and District Raipur Chhattisgarh.

4. Superintendent of Police (S.P.) Department of Crime Investigation, Police Head Quarter, Sector - 19, New Raipur, Atal Nagar, Tahsil and District Raipur Chhattisgarh. --- Respondents For the Petitioner : Mr. Abhishek Pandey, Advocate For the Respondents : Ms. Binu Sharma, Panel Lawyer Hon'ble Shri Justice Goutam Bhaduri Order on Board -11-2019

1. The grievance of the petitioner is that the petitioner has retired on 31.05.2019 as sub-Inspector and after his retirement of 3 months, he was served with a notice of recovery from retiral dues and the recovery has been made.

2. Learned counsel for the petitioner submits that the recovery notice has acted upon wrong fixation of pay and the said recovery could not be made from retired public employee as the case is squarely covered by the decision of the Supreme Court in State of Punjab and

others etc. Vs. Rafiq Masih (White Washer) and others." reported in 2015 AIR SCW 501. He further submits that similar issue has been decided by Co-ordinate Bench of this Court in WPS No. 5796 of 2019, wherein the same ratio of law has been cited in the order dated 06.08.2019.

3. Learned State counsel opposes the argument and submits that the recovery sought for is well merited and does not call for any interference.

4. The Supreme Court in case of Rafiq Masih (supra) has laid down the following ratio:- "(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 01.01.06 to 31.12.2015 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."

5. When the notices Annexure P-1 and P-2 wherein the recovery sought to be made from the petitioner are examined, no details has been given as to how much amount is due for recovery and it is obvious that the fixation of salary of the petitioner has not been done on fraud or mis-chief. It is also relevant to note that respondent was not given any opportunity of hearing. Since the recovery notice has been issued after the retirement of the

petitioner, as per per the laid down in State of Punjab Vs. Rafiq Masih (Supra) the same cannot be done. Accordingly it is directed that the recovery notice issued vide Annexure P-1 & P-2 are quashed and the recovery so made from the retiral dues of the petitioner shall be returned and further if the retiral dues of pension are being paid, the same shall not stopped. Accordingly, the petition stands disposed off.

Sd/- GOUTAM BHADURI JUDGE R a o