Nand Lal vs Municipal Corporation
2022 Latest Caselaw 10082 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                          CWP No.1522 of 2020.




                                                                        .

                                          Date of decision:            29.11.2022.


    Nand Lal                                                   .....Petitioner.





                                   Versus


    Municipal Corporation, Shimla and





    another                                                  .....Respondents.

    Coram
    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

    The Hon'ble Mr. Justice Virender Singh, Judge.

    Whether approved for reporting?1                    No
    For the Petitioner            :        Mr. Jai Ram Sharma, Advocate.



    For the Respondents:                   Ms. Reeta Thakur, Advocate.




    Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the order of recovery dated

03.03.2020 (Annexure P-1), the petitioner has filed the

instant petition.

2. This Court on 24.03.2022 vide a detailed order,

laid down the following parameters where recovery by the

employer would be permissible/impermissible from the

employee. Paragraph 35 whereof reads as under:-

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

"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."

3. The case of the petitioner is squarely covered

under Clause (i). Accordingly, the instant petition is allowed

and order of recovery dated 03.03.2020 (Annexure P-1) is

quashed and set aside.

4. The petition is disposed of in the aforesaid terms,

leaving the parties to bear their own costs.

5. However, we make it clear that in case the

recovery or a part thereof is or has been effected by the

employer, then, the employer shall be bound to refund the

same to the employee.

6. Pending application(s), if any, also stand(s)

disposed of.

.

(Tarlok Singh Chauhan) Judge

(Virender Singh) Judge

29th November, 2022.

(krt)