Himachal Pradesh High Court
Prakash Chand vs State Of H.P. & Others on 18 October, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1992 of 2023
Date of decision : 18.10.2023.
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Prakash Chand ...Petitioner.
Versus
State of H.P. & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
of
Whether approved for reporting?1
For the petitioner : Mr. H. S. Rangra, Advocate.
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For the respondents : Ms. Priyanka Chauhan, DAG, for
respondents No. 1 to 3.
Mr. Rangil Singh, Advocate, for
respondent No.4.
Satyen Vaidya, Judge (Oral):
Heard.
2. The petitioner has prayed for the following substantive relief:-
"That recovery order as Annexed as P-2 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 the interest @ of 9% from 1.10.2018 til 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"1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/10/2023 20:40:39 :::CIS -2-3. The case of the petitioner is that he retired on 30.9.2018 from the post of Pump Operator and the respondents .
deducted an amount of Rs. 59,402/- from his retirement gratuity on the pretext that such payment had been made in excess to the petitioner for the period w.e.f. 9.8.2012 to 30.9.2018.
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4. It is contended on behalf of the petitioner that the recovery effected from the petitioner by the respondents vide rt Annexure P-2 is not sustainable in the teeth of judgment passed by this Court in series of cases and last being the one passed by a Division Bench of this Court in S.S. Chaudhary vs. State of H.P. & others, CWPOA No. 3145 of 2019. It is further submitted that the petitioner retired as Class-III employee and the recovery effected from him is of substantial amount, which has caused undue hardship for him.
5. Respondents have contested the claim of the petitioner on the ground that due to an error, the petitioner was granted benefit of Assured Career Progression Scheme (4-9-14) and subsequently on realization, the decision was changed to recover the amount paid in excess to the petitioner.
6. In S.S. Chaudhary vs. State of H.P. & others, CWPOA No. 3145 of 2019, It has been held as under:-
::: Downloaded on - 18/10/2023 20:40:39 :::CIS -3-"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 of are due to retire within one year, of the order of recovery.
(iii) rt 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 ClassI/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.::: Downloaded on - 18/10/2023 20:40:39 :::CIS -4-
(vi) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.
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(vii) 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 gudielines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would of be required to be decided on its own merit".
7. The case of the petitioner is covered by Clause-I, as rt noticed above, and as such, the amount recovered from the petitioner vide Annexure P-2 cannot be said to be justified and legal. Even otherwise, recovery of huge amount of Rs. 59,402/-
from a retired Class-III employee will definitely cause hardship to him. He cannot be blamed for the errors, which admittedly had taken place at the end of the respondents. It is not the case of the respondents that the petitioner in any manner was accessory for drawing the excess amount or he had committed any fraud or deceit with the respondents. In this view of the matter, the impugned recovery is iniquitous, harsh and hence arbitrary. Accordingly, the same is liable to be quashed.
8. In result, the petition is allowed. Office order dated 2.1.2019 (Annexure P-2) is quashed to the extent, the recovery of Rs. 59,402/- was effected from the petitioner and the ::: Downloaded on - 18/10/2023 20:40:39 :::CIS -5- respondents are directed to pay to the petitioner the recovered amount of Rs. 59,402/- within eight weeks from today, failing .
which, the said amount shall entail interest at the rate of 6% per annum. Pending applications, if any, also stand disposed of.
(Satyen Vaidya)
of
18th October, 2023 Judge
(kck)
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