Himachal Pradesh High Court
Bhagirath Thakur And Others vs State Of H.P. & Others on 14 September, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 733 of 2019
.
Date of decision: 14.9.2020
Bhagirath Thakur and others. ...Petitioners.
Versus
State of H.P. & others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners:
For the Respondents:
r to
Mr.Neel Kamal Sood, Advocate, through
Video Conferencing.
Mr.R.P. Singh, Deputy Advocate General,
through Video Conferencing.
Vivek Singh Thakur, Judge (oral)
Petitioners, who were serving as Para Teachers at relevant point of time, have approached this Court against the proposed recovery of `24,215/-, `24,215/- and `23,286/- respectively for alleged wrong payment thereof to them during the period 26.12.2003 to 31.12.2006, as vacation salary, like contract appointee teachers.
2. Petitioners along with others had approached this Court by filing CWP No. 4979 of 2011, titled Ram Murti and others Vs. State of H.P. and others, claiming their entitlement for salary during vacations.
The said Writ Petition was decided by a Division Bench of this High Court vide judgment dated 30.6.2011 (Annexure P-1), by holding that claim of petitioners qua vacation salary was covered in their favour by decision of this High Court rendered in case Baldev Singh Vs. State of H.P. and others, judgment wherein has become final and accordingly respondents-State was directed to release the due and admissible Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 2 CWPOA No. 733 of 2019 vacation salary to the petitioners, in case the same had not been granted at the time of passing the order, within four weeks from the date of production of copy of judgment along with copy of Writ Petition .
and the copy of judgment in Baldev Singh's case, with further direction that if the amounts were not disbursed as above, the petitioners would be entitled to interest @ 10% per annum and the erring officers would be personally liable for the same.
3. In compliance of the aforesaid decision of this Court, a communication dated 7.10.2011 (Annexure P-2) was issued by the Finance Department of Government of Himachal Pradesh to all District Treasury Officers/Treasury Officers regarding grant of salary of vacation period to contract/para teachers, which reads as under:-
"I am directed to say on the subject cited above that clarification regarding disbursement of salary of vacation period to contract/para teachers was being sought by various District Treasuries/Treasuries.
Accordingly, the matter was sent for further clarification by this department on departmental file to Education Department.
Education Department has clarified that:-
"Hon'ble Court has directed that the eligible vacation salary will have to be paid during the period of their whole service as contract/para teachers" vide order dated 6.7.2011 (copy enclosed).
You are, therefore, directed to take further necessary action on the bills of vacation period of contract/para teachers as per Hon'ble High Court order dated 6.7.2011."
4. In sequel to aforesaid decision of the High Court and instructions issued by the Finance Department, vacation salary, for entire service of petitioners as para teachers, was released to them.
4. From reply filed to the petition, it appears that for further clarification issued by the Finance Department as well as by the High Court later on, entitlement of the vacation salary to para teachers was ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 3 CWPOA No. 733 of 2019 limited to the time starting w.e.f. 1.4.2007 and in pursuance whereto Head Mistress of Government High School concerned had issued instructions to Headmaster of Government Middle School of the .
petitioners to recover the amount of vacation salary paid to them during period 26.12.2003 to 31.12.2006 vide communication dated 6.2.2012 (Annexure P-4), which led to filing of present petition by the petitioners.
5. The Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 has held as under:-
"6. In view of the conclusion extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.
6. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to the employees, can only be interfered with, in case where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 4 CWPOA No. 733 of 2019 jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the .
interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights".
These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 5 CWPOA No. 733 of 201910. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, .
would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
.... .... ....
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 ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 6 CWPOA No. 733 of 2019 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."
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6. During hearing on 1st July, 2020, it was claimed by learned counsel for the petitioners that present case was squarely covered by pronouncement of the Apex Court in Rafiq Mashi's case referred supra, whereupon learned Deputy Advocate General was directed to verify the facts and have current instructions.
7. On 9.9.2020 in sequel to order dated 1.9.2020, learned Deputy Advocate General had placed on record instructions dated July, 2020 received from Joint Director of Elementary Education, wherein it was stated that petitioners were Class-III employees and hence their case for recovery was covered under the case of Rafiq Masih referred supra.
8. Apart from the instructions placed on record, it is also evident from the facts and circumstances enumerated hereinabove that petitioners had submitted the judgment of the Court to the concerned authority for release of vacation salary in their favour and in the said judgment, there was no direction to restrict the payment of vacation salary w.e.f. 1.4.2007, rather Finance Department had also issued the clarification to pay the vacation salary during the period of whole service of para teachers. Therefore, it was not at the instance of the petitioners that payment of vacation salary was made to them. It was in compliance to the order passed by the Court and in consonance with the instructions issued by the Finance Department. No fault or conspiracy on the part of petitioners can be found for release of amount in question. The payment was not because of any ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP 7 CWPOA No. 733 of 2019 misrepresentation or fraud on the part of the petitioners and they have received the payment bonafide, as at that time, neither the Department nor the petitioners had knowledge that amount which was being paid to .
them, was more than what they were entitled to. At the most, the excess payment, if any made, was the result of wrong interpretation, for which the petitioners cannot be held responsible. Therefore, case of the petitioners is squarely covered by a situation, wherein, for judgment of the Supreme Court in Rafiq Masih case, recoveries by the respondents-State would be impermissible under law.
9. In view of above observation, present petition is allowed and recovery proceedings/order including Annexure P-4, warranting recovery from the petitioners with respect to vacation salary paid to them for a period prior to 1.4.2007 is quashed and set aside.
The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.
(Vivek Singh Thakur), th 14 September, 2020 Judge.
(Keshav) ::: Downloaded on - 15/09/2020 20:18:36 :::HCHP