Angaram Sagarvanshi Vs State of Chhattisgarh

1 - State Of Chhattisgarh Through Secretary, Department Of Revenue, Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District Raipur Chhattisgarh

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2 - Divisional Joint Director, Treasury, Account And Pension, Raipur, Division Raipur District Raipur Chhattisgarh

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3 - Commissioner, Raipur Division Raipur Chhattisgarh

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... Respondents

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For Petitioner : Mr. Ajay Shrivastava, Advocate

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For Respondents/State : Mr. Kalpesh Ruparel, Panel Lawyer

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S.B.: 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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The petitioner has filed this writ petition seeking following reliefs:-

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“(i) That, this Hon’ble Court may kindly be pleased to quash recovery letter Annexure 1 and direction may be given to refund recovered amount with 18% interest immediately, in the interest of justice.

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(ii) Any other relief which may be suitable in the facts and circumstances of the case including cost of the

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petition, may also be granted.”

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Brief facts of the case are that petitioner was initially appointed on the post fo Assistant Grade-III vide order dated 24.10.1976. Thereafter, he was promoted on the post of Assistant Grade-II. He was further granted promotion on the post of Assistant Superintendent and was posted in the office of the Divisional Commissioner, Raipur. He successfully completed his tenure of service and upon attaining age of superannuation retired from service on 31.05.2019. It is the case of the respondents that at the time of preparation of pension paper of the petitioner, upon verification, it was found that the petitioner’s initial appointment was made after 28.08.1971 and he did not clear the Hindi tying examination which is contrary to circular dated 13.07.1973, therefore, the petitioner was wrongly promoted to the higher post and as such, the excess payment made by virtue of promotion is recoverable from the petitioner. Thereafter, letter Annexure P-1 was issued by respondent No.2/Divisional Joint Director, Treasury, Accounts and Pension, Raipur, for recovery of an amount of Rs.9,46,518/- which is under challenge in this writ petition.

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Contention of learned counsel for the petitioner is that the impugned order is bad in law for the reason that it has been passed after the petitioner retired from service. Petitioner has not been granted any opportunity of hearing. When the petitioner was informed that his pension case will not be finalized until he gives consent for recovery of the aforementioned amount, under compulsion, he has given consent for recovery. He submits that the amount as mentioned in Annexure P- 1 has already been recovered from the petitioner. Petitioner is a ClassIII employee, excess payment, if any, made to him during the period of

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service is not on account of misrepresentation or any fraud committed by the petitioner. He submits that if any excess amount towards salary is paid to the petitioner by mistake of the employees of the department, it cannot be recovered from the petitioner after his retirement. In support of his contention, he places reliance upon the judgment of Hon'ble Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 .

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On the other hand, learned counsel for the State opposes the submission of learned counsel for the petitioner and would submit that the petitioner was not eligible for promotion as per the government instructions/circular. Excess payment was made to the petitioner by virtue of erroneous promotion given to him. After retirement of the petitioner, case of the petitioner was verified and processed by the respondent No.2 and looking to the aforesaid excess payment, recovery proceeding has been initiated by respondent No.2. The said recovery proceeding has been initiated on the basis of consent given by the petitioner and therefore the contention of petitioner that the recovery is made without affording any opportunity of hearing is without substance and baseless. In support of his contention he places reliance upon the decision of Hon’ble Supreme Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. (2012) 8 SCC 417.

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I have heard learned counsel for the parties and also perused the pleadings and documents annexed along with this writ petition.

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It is not in dispute that the petitioner stood retired on 31.05.2019 as Assistant Superintendent from the office of Divisional Commissioner, Raipur. It is also not in dispute that pursuant to notice/letter of recovery

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(Annexure P-1) amount of Rs.9,46,518/- has been recovered from gratuity to be paid to petitioner on the ground that excess payment has been made to the petitioner on account of his erroneous promotion on the higher post for which he was not eligible.

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Hon'ble Supreme Court in the case of Rafiq Masih (supra), while considering the monetary gains wrongly extended to the petitioner therein in excess of entitlement and direction for its deduction being made by the employer, directed the employer to reimburse the amount deducted. Hon'ble Supreme Court had taken note of the situation wherein recovery by the employer would be impermissible in law and held thus :-

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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 herein above, 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 Class-III 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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Perusal of the law laid down by Hon'ble Supreme Court in the case of Rafiq Masih (supra) would show that recovery from employees of Class-III and Class-IV service group has been held to be impermissible. Relying upon the decision in the case of Rafiq Masih (supra), Hon'ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (2022 SCC OnLine SC 536) has further held, the recovery from the employees after long time of his retirement to be unjustified.

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If the facts of the case at hand is considered in the light of aforementioned decisions of Hon'ble Supreme Court, respondents in their reply have not made any pleading that excess payment made to the petitioner is on account of his own mistake. The fact which cannot be brushed aside is that the alleged excess payment paid to the petitioner was not on account of any misrepresentation or fraud played by the petitioner in any manner. The excess amount which has been paid has been purely on account of the error at the hands of the officials of the State Government. Case of the respondents is that

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petitioner has been erroneously given promotion contrary to circular issued by the government, however, from perusal of the entire reply it is nowhere reflecting that promotion order of the petitioner has been cancelled at any stage. As in the case at hand the petitioner stood retired from service on 31.05.2019 and steps for recovery of excess payment made to the petitioner was initiated after his retirement. Petitioner retired as Class-III employee and, therefore, case of the petitioner is squarely covered with the decision of Hon’ble Supreme Court in the case of Rafiq Masih (supra).

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For the foregoing discussions and the decision of the Hon’ble Supreme Court, I am of the view that the impugned order/letter of recovery dated 28.08.2019 Annexure-P/1 is not sustainable in law and is liable to be quashed.

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Accordingly, writ petition is allowed. Impugned order/letter of recovery dated 28.08.2019 (Annexure-P/1) is hereby quashed. Respondents are directed to return back amount of Rs.9,46,518/- already recovered from the gratuity amount of petitioner within a period of 3 months from the date of receipt of the order.

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Sd/-- (Parth Prateem Sahu) Judge

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Praveen

Angaram Sagarvanshi v. State of Chhattisgarh

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Angaram Sagarvanshi v. State of Chhattisgarh

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