Himachal Pradesh High Court
Pushap Raj vs The State Of H.P. And Others on 18 October, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4321 of 2023 Date of Decision: 18.10.2023 .
_______________________________________________________ Pushap Raj .......Petitioner Versus The State of H.P. and Others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting? 1 For the Petitioner: Mr. H.S.Rangra, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and rt Mr. B.C.Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General, for respondent Nos. 1 to 3. Mr. Rangil Singh, Advocate, for respondent No.4.
____________________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with office order dated 01.09.2015 (Annexure P-2), issued by Executive Engineer, JSV Division Bilaspur, District Bilaspur, H.P., whereby department concerned ordered for recovery of Rs. 87,273/- on account of excess payment, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein to set-aside aforesaid order.
2. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. H.S.Rangra, learned counsel representing the petitioner, is that 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 18/10/2023 20:40:41 :::CIS 2
recovery order issued after seven years of retirement of the petitioner on account of excess payment is not tenable in the eye of .
law, especially when there is nothing on record suggestive of the fact that amount sought to be recovered was received by the petitioner on his misrepresentation, rather department while doing re-fixation of pay of the petitioner itself granted one additional increment to all the class-IV employees on completion of 20 years of regular service.
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3. Mr. B.C.Verma, learned Additional Advocate General while justifying issuance of impugned office order dated 1.9.2015, vehemently rt argued that excess payment made due to wrong/irregular pay fixation can always be recovered and as such, no illegality can be said to have been committed by the respondents while ordering recovery of aforesaid sum of Rs. 87,273/-.
4. Having heard learned counsel representing the parties and perused material available on record, this Court finds that petitioner though was appointed as daily wage helper in the respondent-department at I & PH Sub Division Bilaspur, H.P., in the year 1982, but subsequently he was regularized in the year 1994. In the year 2017, petitioner came to be promoted as Pump Operator and thereafter after his having completed 20 years service, he alongwith other Class-IV employees was granted one additional increment. Now after seven years of superannuation of the petitioner, by way of impugned office order dated 1.9.2015 (Annexure P-2), sum of Rs. 87,273/- is sought to be recovered on ::: Downloaded on - 18/10/2023 20:40:41 :::CIS 3 account of excess payment. It has been stated in the reply filed on behalf of the respondents that while re-fixing the pay, it was made .
clear that fixation is subject to approval of audit/head office and now since audit/head office has pointed out that aforesaid benefit of additional increment was inadvertently granted to the petitioner, department is well within its jurisdiction to effect the recovery of aforesaid excess amount.
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5. Admittedly, petitioner retired as Class-IV employee in the year 2014 and now after seven years of his superannuation rt recovery is sought to be made from him, which is not permissible in light of judgment rendered by Hon'ble Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and other, AIR 2015 SC 696, which in turn came to be relied upon by Division Bench of this Court in CWPOA No.3145 of 2019, titled as S.S. Chaudhary vs. State of H.P. and others, decided on 24.03.2022.
In the aforesaid judgment, following parameters came to be laid where recovery by 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:-::: Downloaded on - 18/10/2023 20:40:41 :::CIS 4
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
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(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.
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(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 rt 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/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 ::: Downloaded on - 18/10/2023 20:40:41 :::CIS 5 kinds of cases. Therefore, each of such cases would be required to be decided on its own merit."
6. Apart from above, issue with regard to recovery from .
Class-III & IV employees after their retirement stands duly settled 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 of Association vs. State of Madhya Pradesh and others, decided on 26.08.2022.
7. Consequently, in view of the detailed discussion made rt hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed and impugned office order dated 1.9.2015 (Annexure P-2) is quashed and set-aside and respondents are directed to refund the amount so recovered within a period of three months from today, failing which, respondents would be liable to pay interest at the rate of 9% per annum till its realization. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge October 18, 2023 (manjit) ::: Downloaded on - 18/10/2023 20:40:41 :::CIS