Himachal Pradesh High Court
Decided On : 06.12.2024 vs The State Of Himachal Pradesh And Others on 6 December, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:13636
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CWP No. 4501 of 2024
Decided on : 06.12.2024
Devi Singh
...Petitioner
Versus
The State of Himachal Pradesh and others.
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1
For the petitioner : Mr. H.S. Rangra, Advocate.
For the respondents : Mr. Pushpinder Jaswal,
Additional Advocate General, for
respondents No.1 to 3.
Mr. Rangil Singh, Advocate, for
respondent No.4.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:-
"a) That recovery order as Annexed as P-2 may kindly be set aside being ultra-virus, illegal and arbitrary to the law laid by the Hon'ble Apex Court and respondent be directed to release the whole amount of leave encashment along with the interest @ of Rs.9% from 01.12.2019 to till its realization as per the latest law of 1Whether reporters of the local papers may be allowed to see the judgment? 2
2024:HHC:13636 Apex Court held in State of Punjab versus Rafiq Mohd. And followed by this Hon'ble Court in CWPOA No.3145 of 2019.
b) The respondents are directed to release/make the payment of GIS and gratuity amount of service period rendered as daily wages worker/helper along-with interest."
2. Though, reply to the petition has not been filed, however, learned Additional Advocate General has handed over a copy of instructions, which are taken on record.
3. The case of the petitioner is that, in terms of Annexure P-2, an amount of Rs.1,27,419/- has been ordered to be effected from the petitioner, who had already superannuated on 31.10.2019 as a Carpenter, which is a Class-III post. Learned counsel for the petitioner submits that taking into consideration the fact that the petitioner happened to be a Class-III employee and further he had already superannuated before the issuance of the impugned order, the relief prayed for by the petitioner is squarely covered by the judgment of the Hon'ble Supreme Court of India in in State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 3 2024:HHC:13636 SCC 334 and as the impugned order is not sustainable in the eyes of law, therefore, the same be quashed and set aside.
4. Learned Additional Advocate General has submitted that there is no infirmity in the impugned order. Because certain over payments were made to the petitioner, therefore, the State was well within its right to order recovery thereof.
5. Having heard learned counsel for the petitioner as well as learned Deputy Advocate General and having also carefully gone through the pleadings and the documents appended therewith and the instructions handed over by the learned Deputy Advocate General, this Court is of the considered view that the impugned order is not sustainable in law.
6. It is not in dispute that the petitioner superannuated as a Class-III employee on 31.10.2019. The impugned order of recovery has been passed on 27.01.2020, in terms of the judgment of the Hon'ble Supreme Court of India in State of Punjab and others versus Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, certain situations, wherein, recoveries by the employers are not impermissible in law, 4 2024:HHC:13636 include recovery from employees belonging to Class-III and Class-IV service and recovery from the retired employees or employees, who are due to retire within one year, of the order of recovery is also impermissible. In the present case, the petitioner happened to be both a Class-III employee as well as a superannuated employee as on the day when the order of recovery was passed. Therefore, as the impugned order is hit by the mandate of the Hon'ble Supreme Court of India in Rafiq Masih case (supra), therefore, but natural, this petition deserves to be allowed and the impugned order has to be set aside.
7. The petition is, accordingly, allowed. Order of recovery dated 27.01.2020 is quashed and set aside with the direction to the respondents not to effect any recovery from the petitioner in the light of office order dated 27.01.2020. It is further ordered that in case any recovery has already been effected in terms of impugned office order dated 27.01.2020, then, this Court holds said recovery to to be bad in law and the respondents are directed to refund the said amount to the petitioner forthwith and not later than two months from today, 5 2024:HHC:13636 failing which, the amount shall entail interest @6% from the date of this judgment. Pending miscellaneous application(s), if any, stand disposed of accordingly.
(Ajay Mohan Goel) Judge December 06, 2024 (Shivank Thakur)