Himachal Pradesh High Court
Sita Ram And Another vs State Of H.P. And Others on 26 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 4765 of 2014 Decided on: 26.5.2015 .
___________________________________________________ Sita Ram and another. ...Petitioners.
Versus State of H.P. and others. ...Respondents.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 For the Petitioner: Ms. Archana Dutt, Advocate.
For the Respondents: Mr. Parmod Thakur, Addl. A.G. with Mr. Neeraj Sharma, Dy. A.G. _________________________________________________________ Justice Rajiv Sharma, Judge.
Petitioner No. 1 was engaged on daily wage basis on 1.1.1989 and petitioner No. 2 was engaged on 1.1.1990. Though the petitioners had completed more than ten years service but were not regularized as per law laid down by Hon'ble Supreme Court in Mool Raj Upadhyay's case. They approached this Court by way of CWP No. 5459/2011. It was disposed of on 19.7.2011. In sequel to the directions issued by this Court, petitioners 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 18:15:24 :::HCHP 2
were conferred with work charge status with effect from 1.1.1999 and 1.1.2000, respectively and they were regularized on 15.1.2003 and 16.1.2003. Fact of the .
matter is that petitioner No.1 had completed ten years on 31.12.1998 and petitioner No. 2 on 31.12.1999.
Petitioners were also paid arrears amounting to Rs.2,37,351/- and Rs.1,75,394/-, respectively.
Petitioners have now been served with a recovery notice dated 13.8.2013. It is specifically averred in reply that decision has been taken to effect recovery of arrears from the petitioners on the basis of letters dated 1.3.2013 and 8.3.2013, respectively.
2. Ms. Archana Dutt, Advocate has drawn attention of the Court to letters Annexure P-4 dated 18.2.2008 and 25.2.2008, whereby 7482 posts were sanctioned and arrears were also to be paid to the eligible employees before 25.3.2008. There is no reference to letter dated 25.2.2008 in communications dated 1.3.2013 and 8.3.2013. The Court while ordering the regularization has not restricted the payment of arrears of salary. The petitioners had specifically prayed for arrears and in fact, these were granted to them as ::: Downloaded on - 15/04/2017 18:15:24 :::HCHP 3 noticed herein above. Petitioners were conferred with work charge status on the dicta of Hon'ble Supreme Court in Mool Raj Upadhyay's case immediately on the .
completion of ten years on 31.12.1998 and 31.12.1999.
They were constrained to approach this Court in the year 2011. The petition was disposed of on 19.7.2011.
Petitioners had already made representation seeking regularization but the same was rejected by the 31.12.1998 and employer. Petitioners can not be deprived of the arrears for which they are legally entitled with effect from 31.12.1999, respectively. The respondents were remiss in the discharge of their duties in not conferring work charge status upon petitioners on completion of ten years and at this belated stage to restrict the arrears of salary to three years from the date of filing the petition. Petitioners have been paid arrears of salary and they belong to class IV posts. The petitioners have specifically averred that the similarly situate persons have been paid the entire arrears and this has not been denied by the respondents in their reply.
::: Downloaded on - 15/04/2017 18:15:24 :::HCHP 43. Their Lordships of the Hon'ble Supreme Court in a recent judgment in State of Punjab & others versus Rafiq Masih (White Washer) and others, .
(2015)4 Supreme Court cases 334 have held that the recoveries would be impermissible in law from the employees belonging to Class-III and Class-IV (Groups C and D). Their Lordships have 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 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."::: Downloaded on - 15/04/2017 18:15:24 :::HCHP 5
4. It is not the case of the respondents that petitioners, at any given time, have concealed or misrepresented the facts at the time of conferring work .
charge status or regularization on the basis of which arrears were released to them. The respondent-State is a welfare State and it is not expected from it to deny the fair and just claim of the petitioners, who despite putting in requisite years in the years 1998 and 1999, have been regularized only after a decade.
5. Accordingly, in view of the analysis and discussion made hereinabove, the petition is allowed.
Annexure P-3 dated 13.8.2013 is quashed and set aside.
Respondents are restrained from effecting recovery from the petitioners. Pending application(s), if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge.
26.5.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:15:24 :::HCHP