Himachal Pradesh High Court
Durga Dass vs State Of H.P & Others on 22 August, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
1
REPORTABLE-NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF AUGUST, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6602 of 2019
Between:
1.DURGA DASS, ELECTRICIAN, IPH SUB-
DIVISION BALDWARA, DISTRICT MANDI,
H.P.
2.PURSHOTAM, WORK INSPECTOR, IPH
SUB-DIVISION BALDWARA, DISTRICT
MANDI, H.P.
3.RAJINDER, WORK INSPECTOR, IPH SUB-
DIVISION BALDWARA, DISTRICT MANDI,
H.P.
4.PARKASH CHAND, FITTER, IPH SUB-
DIVISION BALDWARA, DISTRICT MANDI,
H.P.
5.MANOJ KUMAR, PUMP OPERATOR,IPH
SUB-DIVISION BALDWARA, DISTRICT
MANDI, H.P.
6.ROSHAN LAL, S/O SH. HARI SINGH, PUMP
OPERATOR, IPH SUB-DIVISION BALDWARA,
DISTRICT MANDI, H.P.
7.AMAR NATH, PUMP OPERATOR, IPH SUB-
DIVISION BALDWARA, DISTRICT MANDI,
H.P.
8.KASHMIR SIHGH, PUMP OPERATOR,IPH
SUB-DIVISION BALDWARA, DISTRICT
MANDI, H.P.
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9.ISHWAR DASS, PUMP OPERATOR,IPH
SUB-DIVISION BALDWARA, DISTRICT
MANDI, H.P.
.
10.DINA NATH, PUMP OPERATOR, IPH SUB-
DIVISION BALDWARA, DISTRICT MANDI, H.P.
........PETITIONERS
( BY MR. ASHOK KUMAR, ADVOCATE)
AND
1.STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY
(I&PH) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2.ENGINEER-IN-CHIEF, I&PH
DEPARTMENT, US CLUB, SHIMLA
171001.
3.SUPERINTENDING ENGINEER, I&PH
CIRCLE, HAMIRPUR, DISTRICT
HAMIRPUR, H.P.
4.EXECUTIVE ENGINEER, I&PH
SARKAGHAT, DISTT. MANDI, H.P.
5.ASSISTANT ENGINEER, I&PH SUB
DIVISION BALDWARA, DISTRICT MANDI,
H.P.
..........RESPONDENTS
(BY MR. BHARAT BHUSHAN, ADDITIONAL
ADVOCATE GENERAL WITH MR. SHREYAK
SHARDA, SR. ASSISTANT ADVOCATE GENERAL)
RESERVED ON : 17.08.2022
DECIDED ON : 22.08.2022
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This petition coming on for pronouncement of
judgment this day, the Court passed the following:
.
ORDER
Heard.
2. Petitioners approached the erstwhile Himachal Pradesh State Administrative Tribunal by filing O.A. No. 208 of 2016, praying for following substantive relief:-
r to "1.That this original application may kindly be allowed and impugned show cause notices of recovery issued by the respondent department contained in Annexure A-1 may kindly be quashed and set aside."
After abolition of H.P. State Administrative Tribunal, Original Application of the petitioners came to be transferred to this Court and was registered as CWPOA No. 6602 of 2019.
3. Brief facts necessary for adjudication of the petition are that at the time of filing of the Original Application, petitioners were working in the department of Irrigation and Public Health, Government of H.P. on different Class-III posts like Pump Operator, Work Inspector, Electrician and Fitter etc. Petitioners were allowed the benefit of Assured Career Progression Scheme. However, subsequent to grant of benefit of A.C.P.S., respondent No. 3 issued show cause notices dated 07.11.2015 ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 4 to the petitioners seeking their reply(ies) as to why the grant of benefit of A.C.P.S. to them, be not withdrawn, their respective salaries re-fixed and excess payment be not recovered from .
them in equal installments. Petitioners submitted their reply(ies), however, apprehending the recovery to be effected from them on the basis of show cause notices dated 07.11.2015, petitioners approached the State Administrative Tribunal by way of Original Application No. 208 of 2016, as noticed above.
4. Respondents have contested the claim of the petitioners on the ground that they were not entitled for the benefit of A.C.P.S. and respondents were not estopped or precluded from effecting the recoveries of wrongfully disbursed amount to the petitioners. It has been submitted that pay fixation order in itself does not carry any right, as such fixation order is always carrying a note that fixation is subject to approval of Audit/Head Office.
5. It is not in dispute that petitioners were serving the respondents-Department as Class-III employees at the time of issuance of show cause notices dated 07.11.2015 to them. It is also not the case of the respondents that the excess amount was received by the petitioners by misrepresentation of facts or fraud.
::: Downloaded on - 22/08/2022 20:02:49 :::CIS 56. A Division Bench of this Court vide judgment dated 24.03.2022 in a bunch of matters with CWPOA No. 3145 of 2019, titled as S.S. Chaudhary Vs. State of H.P & others, as a .
lead case has held as under:-
"34. It was after taking into consideration the entire law on the subject, the Hon'ble Supreme Court in Rafiq Masih (2) laid down guidelines relating to recovery in para-18 of its judgment (supra). Thus, in such circumstances, it cannot be said that Rafiq Masih (ii) does not lay down correct law.
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 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.
(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class I/Group-A and Class-::: Downloaded on - 22/08/2022 20:02:49 :::CIS 6
II/Group-B, 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 over weigh the equitable balance of the employer's right to recover.
.
(vii) Recovery from the employees belonging to Class-III and Class-
IV 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 channelised and inflexible guidelines 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.
36. Thus, it would be clear that no inflexible rules regarding the recovery can be culled out and each case will have to be decided on its own merit keeping in view the broad guidelines as mentioned above."
7. Keeping in view the aforesaid exposition, petitioners fall in situations (i) & (v). Thus, instant case is covered by aforesaid judgment and the recoveries sought to be effected by respondents from the petitioners, cannot be sustained.
8. Since, the excess payment, if any, made to the petitioners by the employer was not the result of any misrepresentation or fraud on the part of the petitioners, the recovery made from the petitioners is harsh and arbitrary.
Petitioners were Class-III employees and their monthly emoluments definitely meant a lot to them and this factor would far out way the equitable balance of the employer's right to recover.
::: Downloaded on - 22/08/2022 20:02:49 :::CIS 79. At this stage, it would be apt to refer to a recent judgment rendered by Hon'ble Supreme Court in Thomas Daniel Vs. State of Kerala & Others, 2022 AIR (SC) 2153, decided on .
02.05.2022, wherein it has been held as under:-
"(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.
(10) In Sahib Ram v. State of Haryana and Others1 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. It was held thus:
"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 8 of relaxation, the appellant had been paid his salary on the revised scale. However, it is not on account of any 1 1995 Supp (1) SCC 18 misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but .
by wrong construction made by the Principal for which the appellant cannot be held to be at fault.
Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."(11)
In Col. B.J. Akkara (Retd.) v. Government of India and Others 2 this Court considered an identical question as under:
r "27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 76 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] ):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular 2 (2006) 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous.::: Downloaded on - 22/08/2022 20:02:49 :::CIS 9
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is .
implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 761999 till the issue of the clarificatory circular dated 11- 92001. Insofar as any excess payment made after the circular dated 1192001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 10 pensioners have been put on notice in regard to the wrong calculations earlier made."
(12) In Syed Abdul Qadir and Others v. State of Bihar and Others3 excess payment was sought to be recovered which was made to the .
appellants teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired. The court observed that in general parlance, recovery is prohibited by courts where there exists no misrepresentation or fraud on the part of the employee and when the excess payment has been made by applying a wrong interpretation/ understanding of a Rule or Order. It was held thus:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part.
The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 11 circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
.
(13) In State of Punjab and Others v. Rafiq Masih (White Washer) and Others4 wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"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 employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the 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.
xxx xxx xxx
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 hereinabove, we may, as a ready reference, ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 12 summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
.
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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 r to 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."
(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.
(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified."
10. In view of above discussion, the petition is allowed.
Recovery of amounts sought to be effected by respondents from the petitioners in pursuance to show cause notices dated ::: Downloaded on - 22/08/2022 20:02:49 :::CIS 13 07.11.2015, Annexure A-1, are held unsustainable in law.
Accordingly, respondents are directed not to effect recoveries of any amount from petitioners as contemplated under show cause .
notices dated 07.11.2015, Annexure A-1.
11. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.
22nd August, 2022
to ( Satyen Vaidya )
Judge
(sushma)
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