Himachal Pradesh High Court
Nand Lal vs State Of H.P. & Ors on 4 April, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4498 of 2024 Date of decision: 04.04.2025 Nand Lal ...Petitioner.
Versus State of H.P. & Ors. ...Respondents. Coram:
Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?
For the petitioner : Mr. H.S. Rangra, Advocate.
For the respondents : Ms. Leena Guleria, Deputy Advocate General, for respondents No.1 to 3.
Mr. Rangil Singh, Advocate, for respondent No.4.
Jyotsna Rewal Dua, Judge Petitioner was serving as Fitter (ClassIII) with the respondentIrrigation and Public Health Department. His services were regularized w.e.f. 01.01.1994.
2. As ClassIII employee, the petitioner belonged to common category of technicians, who had been provided three tier pay structure in the ratio of 50:30:20 under Government notification dated 30.08.1997. The said pay structure admissible from time to time with revision of pay scale was detailed in notification dated 29.05.2014. Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Petitioner was granted technicians' grade as Junior Technician, Technician GradeII, Technician GradeI from time to time. While granting pay structure and placement as Technician GradeI to the petitioner w.e.f. 01.12.2012 annual increment in the lower pay scale was also released to him under order dated 05.02.2016. This according to the respondents was an inadvertent error on their part. On coming to know about the error, petitioner's pay fixation order was reviewed and fresh pay fixation order was issued on 18.02.2017. By that time, petitioner had retired from the respondentdepartment. He superannuated as Fitter on 30.11.2016. Vide order dated 21.04.2017, the respondents sought to recover the excess amount paid to the petitioner by adjusting the same against payment of Deathcum Retirement Gratuity (DCRG) due to him. Accordingly DCRG was paid to the petitioner after effecting recovery of Rs.1,38,251/ Petitioner feels aggrieved against this action & has instituted this writ petition seeking following substantive reliefs: "a. That recovery order as Annexed as p2 may kindly be set aside being ultra virus, illegal and arbitrary to the law laid by the Hon'ble Apex Court and respondents be directed to release the whole amount of leave encashment along with 3 the interest @ of 9% from 1.12.2016 to till its realization as per the latest law of Apex Court held in State of Punjab vs. 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 & gratuity amount of service period rendered as daily wages worker/helper along with interest."
3. Learned counsel for the petitioner submitted that the petitioner had been serving as Fitter (ClassIII) with the respondentdepartment and the respondents have unjustly withheld an amount of Rs.1,38,251/ from due and admissible DCRG to the petitioner on account of alleged excess payment made to him w.e.f. 01.12.2012 onwards. Learned counsel further submitted that respondent cannot recover the amount from the petitioner in view of law laid down in S.S. Chaudhary Vs. State of H.P. and Others along with connected matters1.
4. The Hon'ble Apex Court in the State of Punjab and others Vs. Rafiq Masih (White Washer) and others2, has held that recovery by the employer from the employees belonging to ClassIII and ClassIV services, where payments 1 2022 (2) SLC 676 2 (2015) 4 SCC 334 (2) 4 have mistakenly been made by the employer in excess of their entitlement, would be impermissible.
The Division Bench of this Court relying upon the aforesaid judgment and on consideration of several other precedents in the timeline including Chandi Prasad Uniyal & Ors. Vs. State of Uttrakhand & Ors.3 has held as under
in CWPOA No. 3145 of 2019 (S.S.Chaudhary Vs. State of H.P. and other and connected matters), decided on 24.03.2022: "35. In view of the aforesaid discussion, as held by Hon'ble Supreme Court in Rafiq Masih's case (supra), it is not possible to postulate all situations of hardship, where payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer would be impermissible in law:
(i) Recovery from employees belonging to ClassIII and ClassIV 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, 3 (2012) 8 SCC 417 5 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.
(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class I/GroupA and ClassII/GroupB, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover.
(vii) Recovery from the employees belonging to ClassIII and ClassIV even on the basis of undertaking is impermissible.
(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible gudielines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own merit."
The case of the petitioner, who was holding Class III post, is covered under the aforesaid decision and the stipulations therein. It is not the fault of the petitioner that the respondents had granted him benefit of placement as Technician GradeI with annual increments in the lower pay scale w.e.f. 1.12.2012. Admittedly, the petitioner had continued to receive these benefits till his superannuation on 6 30.11.2016. Respondents cannot be permitted to recover the alleged overpayment from the petitioner.
In the given facts and circumstances, this writ petition is allowed. Recovery order passed by the respondents on 21.04.2017 (Annexure P2) is quashed and set aside. Respondents are directed to release to the petitioner the withheld amount of Rs.1,38,251/ from his admissible DCRG within four weeks from today, failing which, amount shall carry interest @5% per annum from the date of filing of the writ petition.
The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua 04 April 2025 th Judge (rohit)