Himachal Pradesh High Court
_______________________________________________________ vs State Of H.P. And Others on 4 June, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.10241 of 2023 Date of Decision: 04.06.2025 _______________________________________________________ Kashmir Singh .......Petitioner Versus State of H.P. and others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Sanket Sankhyan, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General, for the respondent/State.
Mr. Mukul Sood, Advocate, for respondent No.3.
____________________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition, petitioner has prayed for following main relief:-
" That writ in the nature of Certiorari or any other appropriate writ order or direction be issued for quashing and setting aside the order dated 13.08.2020 & 10.11.2020 i.e. Annexure P-1 & P-2 and furthermore respondent may kindly directed to refund the recovered amount with 18% interest per annum in the time bound manner."1
Whether the reporters of the local papers may be allowed to see the judgment? 2
2. Precisely, the facts of the case as emerge from the record are that in the year, 1990 petitioner joined respondent No.3 as a Carpenter. After having rendered 30 years service, petitioner was superannuated on 31.05.2020. While paying retiral benefits, respondent-Department recovered sum of Rs. 1, 52, 512/- on account of wrong fixation as such, petitioner herein, who is Class-III employee, has approached this Court in the instant proceedings on the ground that no recovery, if any, could be effected from the retiral benefits on account of wrong pay fixation, especially when there is nothing to suggest that wrong pay fixation, if any, was done at the behest of the petitioner.
3. To substantiate his aforesaid claim, learned counsel for the petitioner has placed reliance upon the judgment passed by Hon'ble Apex Court State of Punjab and others vs. Rafiq Masih (White Washer) and other, AIR 2015 SC 696, wherein it has been held that no recovery from Class-III & IV employees is permissible, especially when amount, sought to be recovered, is not received by the person concerned on his misrepresentation.
4. Pursuant to notice issued in the instant proceedings, respondent No.3 has filed reply, whereas despite opportunity, no reply has been filed by respondent Nos. 1 and 2, rather afore respondents have adopted the reply filed by respondent No.3. Respondents, while 3 admitting the facts, as detailed hereinabove, have stated that after retirement of the petitioner, his pension case was sent to respondent No.2 for necessary approval of his pension/DCRG, who raised objection vide letter dated 13.08.2020(Annexure P-2) that pay fixation w.e.f. 1.1.1996 and 1.1.2006 is required to be examined in view of observation made at Sr.No.31. In compliance to aforesaid order, re-fixation of the petitioner was done by replying respondent on 17.09.2020 (Annexure P-2). It is further submitted that copy of re-fixation was duly conveyed to the petitioner for information and for filing objections/claims, if any, against the over payment of Rs.1, 52, 512/-, which came to be calculated on account of re-fixation.
5. Though, repeatedly, opportunity was granted to the petitioner to file objection/claim against the over payment, but he did not file objections. Besides above, it has been further averred in the reply that at the time of retirement petitioner had executed an indemnity bond on 17.03.2020 in favour of respondent No.2 and replying respondent before the Executive Magistrate (R) Shimla declaring on oath that he shall return/pay back any such amount found to have been paid in excess to him to respondent No.2 or to the replying respondent (Annexure R-3/1).
6. Mr. Mukul Sood, learned counsel representing respondent No.3, vehemently argued that once recovery came to be 4 effected on account of objections raised by the Office of Accountant General, Himachal Pradesh and there is no dispute that amount otherwise sought to be recovered was paid in excess, no illegality can be said to have been committed by ordering recovery qua the amount detailed hereinabove.
7. I have heard learned counsel for the parties and gone through the record carefully.
8. No doubt, sum of Rs. 1,52,512/-, which has been recovered from the retiral benefit of the petitioner was paid in excess on account of wrong pay fixation, but question, which now needs to be determined in the instant proceedings, is " whether payment made in excess, if any, can be recovered from Class III and IV employee after retirement?". Answer to aforesaid question already stands adjudicated by the Hon'ble Apex Court in Rafiq Masih case(supra) wherein while holding that recovery from Class-III and IV is not permissible, has stated that once there is nothing to suggest that amount sought to be recovered received by the employee concerned on account of misrepresentation, same cannot be recovered in terms of the judgment passed by Hon'ble Apex Court in Rafiq Masih case (supra) 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 5 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:-
(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/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.6
(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."
9. 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 Association vs. State of Madhya Pradesh and others, decided on 26.08.2022.
10. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed and impugned orders dated 13.08.2020 & 10.11.2020 (Annexures P-1 & P-2) are quashed and set-aside and respondents are directed to refund the amount, if any recovered from the petitioner, within a period of eight weeks, failing which, respondents would be liable to pay interest at the rate of 6% per annum from the date, afore amount was recovered from the retiral benefit of the petitioner. Needles to 7 say, pension will be re-fixed on the basis of the order of re-fixation of pay done by the respondents pursuant to objections raised by the Office of the Accountant General, Himachal Pradesh. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge June 04,2025 (shankar)