Himachal Pradesh High Court
Balh Distt. Mandi H.P vs Rafiq Mohd. And on 20 September, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
CIVIL WRIT PETITION NO. 3686 OF 2022
Between:-
r to
SURAJ SINGH (RTD JR. ENG.)
S/O SH BHUP SINGH R/O VILL
KHIURI P.O. RAJGARH TEHSIL
BALH DISTT. MANDI H.P.
...PETITIONER
(BY SH. H. S. RANGRA,
ADVOCATE).
AND
1. THE SECRETARY (I&PH) GOVT.
OF HIMACHAL PRADESH
SHIMLA H.P.
2. THE SUPERINTENDING
ENGINEER AND I.&P.H CIRCLE
SUNDER NAGAR DISTT. MANDI,
H.P.
3. THE CHIEF ENGINEER I.&P.H.
DIVISION BAGGI DISTT. MANDI
H.P.
4. THE SR ACCOUNTANT
GENERALA.G OFFICE SHIMLA -3
H.P.
....RESPONDENTS
(BY SH. ASHOK SHARMA, A.G.
WITH SH. SHIV PAL MANHANS,
ADDL. A.GS., SH. BHUPINDER
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2
THAKUR, DY. A.G. AND SH.
RAJAT CHAUHAN, LAW OFFICER,
FOR RESPONDENTS-STATE
.
SH. TEK RAM, ADVOCATE, FOR
RESPONDENT NO. 4)
This Petition coming on for orders this day, the Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
The instant petition has been filed for grant of the following substantive relief:-
a) That recovery order as annexed as P-3 may kindly be set aside being ultra virus, illegal and arbitrary to the law laid by the Hon'ble Apex Court as well as by this Hon'ble Court and respondents be directed to release the whole amount of leave encashment alongwith the interest @ 9% from 01.03.2019 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. 3145/2019.
2. Admittedly, the recovery was ordered to be effected after the retirement of the petitioner. Since, the petitioner was holding a Class-III post, therefore, the recovery could not have otherwise been effected, more particularly, in light of the judgment rendered by the Hon'ble Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Other AIR 2015 SC 696, which in turn has been relied upon by this Court in CWPOA No. 3145 of 019, titled as S. S. Chaudhary vs. State of H.P. & Ors., decided on 24.03.2022, wherein the Court has laid down the following parameters where recovery by ::: Downloaded on - 20/09/2022 20:06:28 :::CIS 3 the employer would be permissible/impermissible from the employee:-
.
"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 be 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-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 overweigh 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 channelized 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."
::: Downloaded on - 20/09/2022 20:06:28 :::CIS 43. That apart, the issue now stands conclusively decided by the Hon'ble Supreme Court in Thomas Daniel Vs. .
State of Kerala & Others, 2022 AIR (SC) 2153, decided on 02.05.2022 and in Civil Appeal No. 5527 of 2022, Madhya Pradesh Medical Officers Association vs. State of Madhya Pradesh and others, decided on 26.08.2022.
4. Accordingly, the present petition is allowed and the recovery as directed to be effected vide order dated 31.05.2018 (Annexure P-3) is ordered to be quashed and set aside.
Respondents No. 1 to 3 are directed to refund the recovery so effected within three months from today that is by 20.12.2022, failing which respondents No. 1 to 3 are liable to pay interest at the rate of 9% till its realization.
5. Petition stands disposed of in the aforesaid terms, so also pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
20th September, 2022 Judge
(sanjeev)
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