Himachal Pradesh High Court
State Of H.P. & Ors vs Madho Parsad And Ors on 6 August, 2018
Bench: Tarlok Singh Chauhan, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3050 of 2016
.
Decided on: 6th August, 2018.
State of H.P. & ors. ...Petitioners
Versus
Madho Parsad and ors. ...Respondents
__________________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1 No.
For the Petitioners : Mr. Vikas Rathore and Mr. Narender
Guleria, Addl. A.Gs. with Mr. J. S. Guleria, Dy.
r A.G.
For the Respondent : Mr. Onkar Jairath, Advocate.
Justice Tarlok Singh Chauhan, Judge (Oral)
The State being aggrieved by the order passed by the learned H. P. Administrative Tribunal (for short 'Tribunal) in TA No. 2678 of 2015, whereby, it quashed the order of recovery effected against the respondents and accordingly allowed the petition filed by the respondents, has filed the instant writ petition assailing therein the order so passed.
2. It is not in dispute that the respondents were appointed as para teachers during the year 2003 under the category of C&V, TGT and Lecturer (School Cadre) on fixed honorarium. Para teachers were subsequently equated with the contract teachers for the purpose of emoluments from 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 2 07.04.2007 and, thereafter, the para teachers were granted arrears of vacation salary on the basis of the decision rendered .
by this Court in Baldev Singh versus State of H.P. 2009 (1) HLJ 29. However, the petitioners, thereafter, issued notices dated 24.09.2013 (colly) for recovery of the amounts nearly Rs.8,00,000/- (Rupees eight lacs) from each of the respondents.
3. The recovery of this amount was sought on the ground that the respondents who were working as para teachers had misrepresented themselves to be contract teachers and were, therefore, not entitled to the arrears of the vacation salary.
However, the learned Tribunal vide the impugned order allowed the original application after placing reliance upon the judgment of the Hon'ble Supreme Court in State of Punjab versus Rafiq Masih AIR 2015 SCW 501, and quashed the impugned memos dated 24.09.2013, reserving liberties to the respondents to make representation for release of revised pay-scale, dearness allowance and increment.
4. It is vehemently contended by Shri Vikas Rathore, learned Additional Advocate General that the learned Tribunal has failed to appreciate that the respondents were given arrears erroneously, therefore, the State was well within its right to recovery the same.
5. We find no substance in the said contention, as admittedly the para teachers were equated with contract ::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 3 teachers for the purpose of emoluments from 07.04.2007, in terms of the judgment rendered by this Court in CWP No. 2880 .
of 2010, titled as Dhananjay Saini versus State of H. P., decided on 21.10.2010.
6. It is further not in dispute that para teachers on the basis of the decision of this Court in Baldev Singh and others vs. State of H.P. 2009(1) HLJ 29, were also granted arrears of vacation salary, and it is only after the petitioners had examined the cases of the respondents, that it granted the vacation salary in their favour. The respondents admittedly had not played any role in the release of the vacation salary.
7. Therefore, whether in such circumstances, the recoveries could be effected by the petitioners is a question which arises for consideration. However, this question is no longer res intergra in view of the Division Bench judgment of this Court in Seema Sharma versus State of H.P. & others 2015 (2) HLR(DB) 1199, wherein like in the present case, the petitioner therein had been granted vacation salary pursuant to a decision rendered in her favour in earlier petition filed by her.
However, thereafter, like in the present case recoveries were sought to be effected from her on similar grounds as in the instant case and it was then, this Court held as under:-
"[7] The petitioner has not played any role in releasing the vacation salary. Respondents cannot effect recovery in view of the judgment passed by the apex Court in ::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 4 State of Punjab & others etc. Vs. Rafiq Masih (While Washer) etc., 2015 AIR(SCW) 501. It is apt to reproduce paras 6, 7, 9, 10 & 11 of the said judgment herein:
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"6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer rcommitted the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 5
8. ..
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of .
the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice -
social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Courtunder Article 142 of ::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 6 the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the .
obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case, that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation ."
::: Downloaded on - 08/08/2018 22:59:42 :::HCHP 78. In view of the aforesaid foregoing discussion, we find no merit in this petition and the same is accordingly dismissed, .
leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Vivek Singh Thakur) 6 th August , 2018. Judge (sanjeev) r ::: Downloaded on - 08/08/2018 22:59:42 :::HCHP