Disposed

Shiv Kumar Tiwari v. State of Chhattisgarh

Chhattisgarh HC14 Oct 2024WPS/2533/2020

Case brief

AI extract

What is this about?

A retired Head Constable challenged recovery of excess salary paid due to a wrongly granted 2008 increment. Relying on Rafiq Masih and Thomas Daniel, the court held recovery from a Class-III retired employee impermissible, quashed the recovery order and directed refund of the deducted amount from retiral dues.

What did the court decide?

Recovery order dated 17.01.2020 quashed; respondents directed to return ₹1,19,045/- deducted from retiral dues within 3 months.

Shiv Kumar Tiwari Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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2024:CGHC:40429

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 2533 of 202 0

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Shiv Kumar Tiwari S/o Late Shri Sudha Ram Tiwari Aged About 61 Years R/o Satbahniya Temple, Bandhwapara, Sarkanda, Bilaspur, P.S. Sarkanda, Tahsil and District- Bilaspur, Chhattisgarh

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... Petitioner

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versus

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State Of Chhattisgarh Through Its Secretary, Department Of Home/police, Mahanadi Mantralaya, Police Station And Post Rakhi, Atal Nagar Raipur, District- Raipur, Chhattisgarh

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Inspector General Of Police (IGP) Chhattisgarh Armed Force (CAF), Police Head Quarter (PHQ), P.S. And Post- Rakhi, Atal Nagar, New Raipur, DistrictRaipur, Chhattisgarh

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Commandant 13 Battalion, Chhattisgarh Armed Force (CAF), Bango, DistrictKorba, Chhattisgarh

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... Respondents

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For Petitioner : Mr. Abhishek Pandey, Advocate For Respondents/ State : Mr. Aman Tamboli, Panel Lawyer

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Hon'ble Shri Parth Prateem Sahu, Judge

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ORDER ON BOARD

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15/10/2024

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Petitioner has filed this writ petition against the letter/ notice dated 17.12.2019 as also the order dated 17.01.2020, whereby the order has been issued by Respondent No. 3 for recovery of amount to the tune of ₹ 1,19,045/-.

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Learned counsel for petitioner submits that petitioner on the date of filing of the writ petition was working on the post of Head Constable. As per the notice issued, recovery is proposed for excess payment made to petitioner

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PAWAN on account of wrongly extending benefit of increment on 01.07.2008. The KUMAR JHA Digitally signed by PAWAN KUMAR JHA

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Increment which is made to the salary of petitioner is not on account of any misrepresentation on the part of petitioner but the said excess payment made is on account of mistake on the part of officials of respondents. Petitioner being Class-III employee, recovery of excess payment, made during service period, is not permissible. In support of his contention, he places reliance upon the decision on Hon’ble Supreme Court in the case of State of Punjab vs. Rafiq Masih (White Washer) reported in [(2015) 4 SCC 334] and in the case of Thomas Daniel vs. State of Kerala reported in 2022 SCC OnLine SC 536.

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Learned State counsel opposes the submission of learned counsel for petitioner and would submit that petitioner has submitted an undertaking on 07.06.2017 to return back the amount of excess payment withdrawn by him. He further contended that petitioner in its letter dated 24.12.2019 has written to Respondent No. 3 mentioning that the petitioner would return back the amount by the month of April 2020 and therefore the petitioner is not entitled for any relief as prayed for in this writ petition.

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At this stage, learned counsel for petitioner submits that petitioner stood retire from the service on 30.11.2020. He submits that the respondents pursuant to the order passed in WPS No. 3898/2021 has deducted the amount sought to be recovered in the order Annexure P-3 dated 17.01.2020 and only thereafter released the remaining retiral dues of petitioner.

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I have heard learned counsel for the parties and also perused the documents placed on record.

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Along with writ petition, petitioner has enclosed copy of notice dated 17.12.2019 as Annexure P-2. In the notice it is mentioned that from the enquiry it revealed that the increment extended on 01.07.2008 to the petitioner was erroneous and due to erroneous grant of increment earlier, petitioner was paid a sum of 1,19,045/- in excess than what the petitioner ₹ was entitled for till 21.12.2019. In the notice there is no mention that

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erroneous grant of increment is on account of misrepresentation on the part of petitioner. Annexure R-1 is the copy of service book enclosed along with reply submitted the respondent-State. In the note appended to Annexure R-1 it only mentioned that grant of earlier increment on 01.07.2008 was erroneous and therefore it is required to be adjusted. In the reply submitted by the respondent-State, there is no mention that the excess payment made to petitioner is on account of any misrepresentation by him on his part.

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Admittedly, the petitioner was holding a Class-III post ie., the Head Constable. The issue with respect to recovery of excess payment to the Government employee has been well settled by the Hon’ble Supreme Court in the case of Rafiq Masih (supra) , relevant paragraph of the said judgment is extracted below for ready reference.

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“ 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers would be impermissible in law:

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(i) Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(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.

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19. We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first

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four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned order passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.”

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In the aforementioned decision, Hon’ble Supreme Court has held that recovery from the retired employee or the employee belonging to Class-III and Class-IV is impermissible in law. Further in the case of Thomas Daniel (supra) , Hon’ble Supreme Court has considered its earlier decision in the case of Rafiq Masih (supra) and set aside the order of recovery from the appellant therein.

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Considering the aforementioned facts of the case as also the aforementioned decisions of Hon’ble Supreme Court, in the opinion of this Court the order of recovery dated 17.01.2020 issued by Respondent No. 3 against petitioner is not sustainable, it is accordingly quashed. As submitted by learned counsel for petitioner that pursuant to the order passed in WPS No. 3898/2021 before disbursement of the retiral dues respondents have deducted the amount as mentioned in order Annexure P-3, respondents are directed to return back the amount of sum of ₹ 1,19,045/- if deducted from the retiral dues of petitioner within a further period of 03 months from the date of receipt of order passed by this Court.

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Accordingly, writ petition is disposed of in the aforesaid terms.

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Sd/-

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(Parth Prateem Sahu)

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JUDGE

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pwn

Shiv Kumar Tiwari v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shiv Kumar Tiwari v. State of Chhattisgarh

Case brief

What is this about?

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