Geeta Kataria vs State Of Chhattisgarh And Ors

Goutam Bhaduri, J

The challenge in the present writ petition is to the order (Annexure P/1) dated 28.01.2016, whereby the respondents have initiated recovery

proceedings against the petitioner for an amount of Rs.79137/-.

The said recovery amount is on account of certain excess payment made to the petitioner on account of wrong fixation of pay granted to the

petitioner, when she was promoted way back on 17.06.2010 as is reflected from Annexure P/1 dated 28.01.2016.

The contention of the petitioner is that the petitioner has retired on 31.01.2016 from the class-III post and that the petitioner has never made any

misrepresentation or played fraud with the respondents for receiving the said erroneous fixation of pay. According to the petitioner, the said recovery

is also impermissible 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."" reported in 2015 AIR SCW 501.

The further contention of the petitioner is that the said alleged excess payment also was paid to the petitioner first time around 9 years ago i.e. in

the year 2010 and on this reason also the recovery could not have been initiated.

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). The Hon'ble

Supreme Court while deciding the said matter has laid down certain situations under which the recovery is totally impermissible under law. The

situations as envisaged in the said judgment are as under :

(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.

If we consider the situations, under which the Hon'ble Supreme Court has held recoveries to be impermissible under law and compare the facts of

the present case, it would clearly reflect that the case of the petitioner would squarely fall within the situations as envisaged in the judgment of the

Hon'ble Supreme Court in the case of ""Rafiq Masih"" (supra).

The impugned order Annexure P/1, in the light of the aforesaid judgment of the Hon'ble Supreme Court is unsustainable as the recovery is

impermissible under law and the same is bad in law and deserves to be and is accordingly set- aside/quashed.

It has been informed by the petitioner that the entire amount has been deducted from the gratuity fund of the petitioner after her retirement.

Given the said submissions it is ordered that since the order of recovery is impermissible under the law, the petitioner would be entitled for the entire

refund of the total amount of Rs.79137/-.

Given the said facts and circumstances of the case, this Court is of the opinion that since the action of the recovery is held to be bad, the

respondents are directed to immediately release the entire amount recovered forthwith to the petitioner within an outer limit of 90 days from the date

of receipt of the copy of this order.

With the aforesaid observation, the writ petition stands disposed of.