Himachal Pradesh High Court
Padam Dev vs State Of Hp And Others on 16 August, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 5441 of 2020 Reserved on : 09.08.2023 .
Date of Decision: 16.08.2023
Padam Dev ....Petitioner.
Versus
State of HP and others ...Respondents.
of
Coram
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt Whether approved for reporting?
For the petitioner : Ms. Shikha Rajta, Advocate vice Mr. Prem P. Chauhan, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with M/s Rakesh Dhaulta and Pranay Pratap Singh, Additional Advocate Generals and Mr. Arsh Rattan, Deputy Advocate General. Ajay Mohan Goel, Judge By way of this writ petition, the petitioner has challenged order dt. 3rd October, 2018, issued by respondent no.
3, in terms whereof, recovery has been ordered of an amount of ₹47,290/- from the petitioner on the ground of excess payment in terms of the observations raised by an Audit Inspection Party during 2014-15 in para-4 thereof and office order dt. 30.12.2016, in terms whereof, the petitioner wrongly received the benefits of new ACPS w.e.f. 01.10.2012, whereas as per the Government ::: Downloaded on - 16/08/2023 20:33:48 :::CIS 2 instructions dt. 29.05.2014, the category of Technicians had already been granted three tier pay scales.
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2. Learned Counsel for the petitioner has argued that the impugned act of the respondents is not sustainable in the eyes of law as the petitioner being a Class-III employee and further it not being the case of the Department that the excess payment was of made to the petitioner on account of any misrepresentation etc. rt made by him or any fraud having been committed by him, the recovery was impermissible as per the decision of the Hon'ble Supreme Court of India in State of Punjab and others Versus Rafiq Masih (White Washer) and others1.
3. Mr. Pranay Pratap Singh, learned Additional Advocate General has argued that there was no infirmity in the impugned order as it was a matter of record that the excess payment stood made to the petitioner, to which he was not entitled to, therefore, the Department was justified in effecting recovery thereof.
4. Having heard learned Counsel for the parties and having carefully gone through the impugned order as well as other documents appended therewith, we are of the considered 1 (2015) 4 SCC 334 ::: Downloaded on - 16/08/2023 20:33:48 :::CIS 3 view that the impugned order is not sustainable in the eyes of law as in terms of the law laid down by Hon'ble Supreme Court in .
State of Punjab and others v. Rafiq Masih (supra), recoveries are impermissible from the employees belonging to Class-III as it would cause hardship to them. This judgment of the Hon'ble Supreme Court has been followed by this Court in CWPOA No. of 4968 of 2020, titled as Jai Lal Kanta Versus State of Himachal rt Pradesh and others, decided on 11.08.2023, in which case, this Court after taking into consideration the contention of the State held as under:-
"16. It is also not the case of the respondents that on account of any fraud or misrepresentation made by the petitioner, the Assured Career Progression Scheme benefit was given to him in addition to the increments.
17. Therefore, in our considered opinion, the case of the petitioner is covered by the judgment in Rafiq Mashih's case (supra) cited by the counsel for the petitioner.
18. There was a difference of opinion in the cases of Shaym Babu Verma versus Union of India 3 , and Sahib Ram versus The State of Haryana 4 and the judgment in Chandi Prasad ::: Downloaded on - 16/08/2023 20:33:48 :::CIS 4 Uniyal's case (supra) as to whether employees should be allowed to retain the benefit conferred on them by mistake by .
the employer or not.
19. While in the first two cases it was held that there has to be no recovery, in Chandi Prasad Uniyal's case it was held that recovery was permissible.
of 20 This conflict view was noticed by the Supreme Court in Rakesh Kumar versus State of Haryana 5 , and the matter was rt referred to larger Bench.
21. The larger Bench of the Supreme Court in State of Punjab versus Rafiq Masih 6 , however, took the view that there was no conflict between the two, and it was held that the decisions were based some on Article 136 of the Constitution of India and the other on Article 142 of the Constitution of India, respectively, and there is no conflict inter se.
22. Thereafter, the case of Rafiq Masih (1 supra) was decided by two Judge Bench of the Supreme Court, which laid down the following Principles:-
"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 ::: Downloaded on - 16/08/2023 20:33:48 :::CIS 5 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).
of
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. rt
(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."
23. This judgment considered the judgment in Chandi Prasad ::: Downloaded on - 16/08/2023 20:33:48 :::CIS 6 Uniyal's case (2 supra) also and the decision of the larger Bench, and interpreted the same in the manner indicated .
above.
24. Having regard to the law laid down therein that where payments were mistakenly made by an employer in excess of entitlement of Government employees, recovery is of impermissible, if they belong to Class-III category, and since the petitioner belongs to such a Class-III category, we hold rt that no recovery can be made from him."
5. The factum of the petitioner being a Class-III employee is not in dispute in the present case. Therefore, having regard to the law laid down by Hon'ble Supreme Court with regard to the impermissibility of recovery of excess payment from the employees belonging to Class-III, as has been followed by this Court also, this writ petition is allowed and order dt.
03.10.2018 (Annexure A-I) is set aside. Pending miscellaneous application(s), if any, also stand disposed of accordingly. No order as to costs.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
August 16, 2023 Judge
(narender)
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