Snehlata Nath vs State Of Chhattisgarh

Petitioner's husband while working with the respondents as Museum Keeper-cum-Artist died in harness on 06.02.2017 and, thereafter, a letter of

recovery dated 05.04.2017 was issued, directing her to make payment of Rs.1,14,344/- against excess payment made due to wrong fixation of salary

of her husband, which amount was paid by the petitioner on 30.05.2017. It is the case of the petitioner that instead of finalizing the retiral dues, the

respondent No.4 on 11.07.2017 had again issued a notice directing her to make payment of Rs.5,20,939/- on the ground that excess payment has been

made to her husband during his service period. Though representation has been preferred, but the petitioner has called in question the aforesaid action

of the respondents by filing the present writ petition.

Return has been filed opposing the writ petition and stating that the petitioner is not liable to pay the aforesaid amount.

Ms. Singhvi, learned counsel for the petitioner submits that petitioner's husband was Class-III employee and that his case is covered by the decision

rendered by the Supreme Court in the case of State of unjab and other vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334

[Para-18]. It is also submitted that petitioner is not claiming refund of the amount which is already deposited by her i.e. Rs.1,14,344/-.

Learned State counsel opposed the submissions made by learned counsel for the petitioner and submits that recovery has rightly been directed

against the petitioner. He relied upon the decision of the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and

others reported in (2012) 8 SCC 417.

I have heard the learned counsels for the parties and considered their rival submissions made hereinabove and also went through the record with

utmost circumspection.

The dispute with regard to the recovery has been authoritatively settled by the Supreme Court in the case of Rafiq Masih (supra), in which in Para-

18 the Supreme Court has held 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 hereinabove, 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 the retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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. â€​

From the aforesaid principle of law laid down by the Supreme Court it is quite apparent that recovery from the employees belonging to Class-III

and Class-IV is impermissible and also when the excess payment has been made for a period of excess of five years, before the order of recovery

has been issued and where the recovery made from the employee is harsh or iniquitous or arbitrary, recovery cannot be made.

Reverting to the facts of the case, it is quite vivid that petitioner's husband was Class-III employee. He succumbed to death while in service on

06.02.2017 and till his death no recovery order was issued and immediately after 2 months of his death, recovery order of Rs.1,14,344/- was issued,

which the petitioner (his widow wife) already paid under bonafide impression that same will be settled while paying retiral dues, but the same was not

settled, thereafter, again on 11.07.2017 another recovery order has been issued for an amount of Rs.5,20,939/-, which is squarely covered by Para-18

(i), (ii), (iii) & (v) of the decision of the Supreme Court in the case of Rafiq Masih (supra) being arbitrary and deserves to be quashed.

Accordingly, the recovery order dated 11.07.2017 (Annexure-P/2) making demand of Rs.5.20.939/- is hereby quashed and set aside. The

respondent No.2 is directed to consider and finalize the retiral dues of petitioner's husband within 45 days from the date of production of copy of this

order.

The writ petition is partly allowed to the extent indicated hereinabove.