Himachal Pradesh High Court
Jia Lal vs The Himachal Pradesh State ... on 13 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1743 of 2013.
Reserved on: 08.07.2015
Decided on: 13.7.2015.
.
Jia Lal ......Petitioner.
Versus
The Himachal Pradesh State Co-operative Milk Producers' Federation Ltd. & anr.
.......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the petitioner: Mr. Vinay Kuthiala, Sr. Advocate, with Mr. Gaurav Sharma,
Advocate.
For the respondents: Mr. M.R.Verma, Advocate, for respondent No.1.
Mr. Parmod Thakur, Addl. AG with Mr. Neeraj K. Sharma, Dy.
AG for respondent No. 2.
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Justice Rajiv Sharma, J.
The petitioner approached the Court by way of CWP(T) No. 10 of 2008. It was decided by this Court on 10.3.2009. The operative portion of the judgment reads as under:
"Accordingly, the petition is allowed. Annexure P-12 is quashed and set aside to the extent whereby the revised pay scale has been directed to be released with effect from 1.1.1993. The respondent No. 1 is directed to release the pay scale of Rs. 810- 1440 to the petitioners with effect from 1.1.1986. There shall, however, be no orders as to costs."
2. In sequel to the judgment dated 10.3.2009, the petitioner was granted pay scale of 810-1440 w.e.f. 1.1.1986 instead of 1.4.1989. However, the petitioner was issued notice dated 25.9.2010, informing him that the officials in the cadre of Dairy Helper have gained monetary benefits and thus 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:33:28 :::HCHP 2the recoveries were to be made on re-fixation of pay w.e.f. 1.1.1986 instead of 1.4.1989. The petitioner was asked to deposit excess amount of Rs.41,297/-.
3. The petitioner approached this Court by way of CWP No. 6807 of .
2010. It was decided alongwith CWP No. 6942 of 2010 on 21.2.2011. The Writ petition was directed to be treated as appeal by respondent No. 1, with a direction to respondent No. 1 to take appropriate action in the light of the observations made in the judgment.
4. The Managing Director of the Federation on 20.2.2013, while referring to letter dated 25.9.2010, ordered the recovery on monthly installments of Rs. 2000/- per month from the salary of the petitioner. There is no reference to the observations made by this Court in the judgment dated 21.2.2011, more particularly, taking notice that the petitioner was getting increments since 1989 and on account of re-fixation of the pay scale in 2010, the incremental benefit already paid since 1989 was sought to be withdrawn as per the impugned order. The Board has to decide whether the benefits, which were being paid as part of the pay scale since 1989, could be recovered belatedly, be it on the pretext of re-fixation of the pay.
5. The petitioner was granted the pay scale w.e.f. 1.1.1986 but surprisingly, the recovery was directed to be effected from the salary of the petitioner. The petitioner was drawing higher salary since 1989 by also taking into consideration the annual increments and the same could not be ordered to be withdrawn arbitrarily after more than two decades. The petitioner belongs to Class-III service post. The petitioner has not misled or misrepresented the authorities at the time when he was granted increments from time to time.
::: Downloaded on - 15/04/2017 18:33:28 :::HCHP 36. Their lordships of the Hon'ble Supreme Court, in a recent judgment, in the case of State of Punjab and others etc. versus Rafiq Masih (White Washer) etc., reported in JT 2015 (1) SC 95, have laid down .
the following principles governing the situation where recovery by the employers would be impermissible in law. It has been held as follows:
"12. 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."
7. Accordingly, the Writ petition is allowed. The impugned Annexures P-3 dated 25.9.2010 and P-10 dated 20.2.2013, are quashed and set aside. Pending application(s), if any, shall stand disposed of.
July 13, 2015, ( Rajiv Sharma ),
(karan) Judge.
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