Narendra Kumar Sharma vs State Of Chhattisgarh And Ors

P. Sam Koshy, J

Challenge in this petition is to the order dated 16.01.2018 (Annexure P/1) whereby the respondents have passed an order intimating that there is

recovery of an amount of Rs.87,483/-against the petitioner which is alleged to have been paid in excess to the petitioner.

The facts of the case is that, the petitioner was working as a Sub Inspector under the respondents which is a Class-III category post. The petitioner

retired from service w.e.f. 31.12.2017. It is said that the petitioner has been given erroneous fixation of pay while implementing 6th Pay Commission

report w.e.f. 01.01.2006 and as a consequence the petitioner again got erroneous fixation while granting 7th Pay Commission w.e.f. 01.01.2016. Thus,

the excess amount so paid has been ordered to be recovered from the salary of the petitioner.

The contention of the petitioner is that, the petitioner has not made any misrepresentation so far as erroneous fixation is concerned. It is also the

contention of the petitioner that it is not a case that the petitioner has been held responsible for receiving the same. Lastly it is contended that the said

action of recovery by the respondents is impermissible under the law in the light of the judgment of the Supreme Court in case of State of Punjab Vs.

Rafiq Masih, 2015 (4) SCC 334.

The State counsel, on the contrary, opposing the petition submits that when the respondents have detected excess payment made to the petitioner,

they have taken steps for rectifying the mistakes and also to recover the loss caused and thus the action of the respondents cannot be said to be bad in

law or contrary in any manner.

Given the aforesaid facts and circumstances of the case, what has to be primarily looked into is that, the petitioner was presently working as a Sub

Inspector under the respondents which is a Class-III category post. It is not a case of the respondents that the petitioner had made any sort of

misrepresentation for obtaining the said erroneous excess payment. It would be relevant at this juncture to refer to the judgment in case of Rafiq

Masih (Supra) wherein in a very categorical term the Supreme Court has given certain situations under which recoveries are held to be impermissible

under the law, which are as under:

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.

Perusal of aforesaid situations as enumerated by the Supreme Court would clearly show that the present case of the petitioner also squarely fits in

the said situations and as such the recovery part so far as the petitioner is concerned also becomes impermissible under the law. The action for

recovery initiated by the respondents, thus, is held to be bad in law and is set aside/quashed.

It has been informed that the petitioner has been compelled to deposit the entire amount to the department enable to get the retiral dues.

Thus, for the reasons narrated in the preceding paragraphs, the impugned order of recovery being impermissible under law, deserves to be and is

set aside. The respondents are directed to immediately refund the petitioner the entire recovered amount. Let this exercise be completed within a

period of four months from the date of receipt of copy of this order.

The quashment of the order of recovery would not come in the way of the respondents in rectifying the error that has been crept in the proper

fixation of pay of the petitioner which would be implemented notionally without any recovery.

Accordingly, the writ petition stands allowed and disposed of.