Recovery of excess payments from Class-III and Class-IV employees, or retired employees, is impermissible in law unless fraud or misrepresentation is proven, and such recovery cannot be sustained even if the employee has provided an undertaking or consent.

Order on Board

1. Learned counsel for the petitioner prays for the following reliefs:

10.1 That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant records relating to case of the petitioner before this Hon’ble Court for its kind perusal.

10.2 That, this Hon’ble Court may kindly be pleased to set-aside/quash the impugned certificate/ recovery order dated 03.08.2022 against the petitioner for an amount of Rs. 4,10,871/- issued by the respondent no. 4 Commandant, 2nd Battalion, Sakri, Bilaspur, C.G. (Annexure P/1).

10.3 That, this Hon’ble Court may kindly be pleased to set-aside/quash the impugned recovery order dated 13.09.2022 against the petitioner for an amount of Rs. 4,10,871/- issued by the respondent no. 3 Divisional Joint Director, Treasury-Account and Pension, Bilaspur, C.G. (Annexure P/2).

10.4 That, the Hon’ble High Court may kindly be pleased to direct the respondent authorities to refund the whole deducted amount to the petitioner i.e. Rs. 4,10,871/- along with the interest of 18% per annum which has been deducted due to the above mentioned impugned recovery orders issued by Respondent no. 3 and 4.

10.5 That, this Hon’ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and agony, harassment and hardships suffered by him as also cost of the litigation.

2. Learned counsel for the petitioner submits that petitioner while working as Constable (Trade) under the office of respondent no. 4, after attaining the age of superannuation retired from service w.e.f. 31.07.2022 and after retirement, the respondent no. 4 issued recovery order against the petitioner for a total amount of Rs. 4,10,871/- in which Rs. 43,000/- deducted from the salary of petitioner and remaining amount of Rs. 3,67,871/- deducted from the gratuity of the petitioner which is evident from Annexure P/2. He submits that even if for some error on the part of respondents department, some excess payment is made towards salary to petitioner, who is Class-III employee, then also recovery after retirement is not permissible under the law. In support of his contention he placed reliance on the decision of Hon’ble Supreme Court in case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc reported in (2015) 4 SCC 334, in case of Thomas Daniel Vs. State of Kerala & Ors. (2022) SCC Online SC 536, and in case of High Court of Punjab and Haryana and others vs. Jagdev Singh , reported in (2016) 14 SCC 267, and submits that recovery of amount paid mistakenly to Grade-III employee is not permissible. He further contended that from such employee even if some consent is obtained subsequent to making of excess payment then also recovery is not permissible and placed reliance on the order passed y the Division Bench of this Court in W.A. No. 264/2020 ( State of CG Vs Labha Ram Dhruv ) and WA No. 265/2020 ( State of CG and others vs Roshan Lal Baghel ). Therefore recovery of amount from the petitioner is bad in law.

3. Learned State counsel opposes the submission of learned counsel for petitioner and would submit that while finalizing the retiral dues upon verification. It revealed that excess payment is made to petitioner. Accordingly, it is recalculated and pay is refixed and on the consent given by petitioner amount paid in excess is recovered.

4. Heard learned counsel for the respective parties.

5. In the case of Rafiq Masih (supra), Hon’ble Supreme Court considering the issue of recovery of amount paid in excess has summarized the situations where in certain cases, recovery from the employee by the employer would not be permissible in law. In para -18 it was observed thus:-

“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, bas