_____________________________________________________ vs State Of H.P. & Others
2023 Latest Caselaw 10400 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                              CWPOA No. 5100 of 2020




                                                              .
                              Date of decision: 27.07.2023





    _____________________________________________________
    Budhi Singh                                  ...Petitioner





                        Versus

    State of H.P. & others                   ...Respondents
    _____________________________________________________
    Coram:




    The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
    Whether approved for reporting?
    __________________________________________________

    For the petitioner : Mr. S.D. Vasudeva, Advocate.

    For the respondents:       Mr. Navlesh Verma, Mr. Rakesh
                               Dhaulta,   Mr. Pranay Pratap Singh,
                               Additional Advocates General with Mr.


                               Arsh Rattan & Mr. Sidharth Jalta,
                               Deputy Advocates General.

    M.S. Ramachandra Rao, Chief Justice (Oral)

In this writ petition, the petitioner has assailed order

dt. 06.04.2018 under which the respondents proposed to recover

Rs. 1,06,005/- on ground of alleged excess payment of benefit qua

ACP increment from 04.09.2014, which according to them, was

not admissible to the post of Technician which post was held by

the petitioner at that point of time.

2. Learned Counsel for the petitioner contends that the

petitioner had not made any misrepresentation or committed any

fraud to the said paid payment and since the petitioner belongs to

the Class-III post, as per the decision in State of Punjab & others

.

Vs. Rafiq Masih (White Washer) & others1, such recovery is

impermissible.

3. Mr. Pranay Pratap Singh, learned Additional

Advocate General, on the other hand, contends that the Hon'ble

Supreme Court had taken a different view in Chandi Prasad

Uniyal Vs. State of Uttrakhand & others2, that the matter had

been referred to a larger Bench in the case of Rakesh Kumar vs.

State of Haryana & others3, and the larger Bench in State of

Punjab & others Vs. Rafiq Masih (White Washer) & others4 had

clarified that there is no such conflict and both the judgments

rendered have to be sustained on the ground that one judgment is

rendered under Article 136 and the other judgment under Article

142 of the Constitution of India.

4. The fact remains that thereafter the matter went back

to the two Judge Bench of the Supreme Court and in its order dt.

18.12.2014 in State of Punjab & others Vs Rafiq Masih (White

(2015) 4 SCC 334

2012) 8 SCC 417

(2014) 8 SCC 892

(2014) 8 SCC 883

Washer) & others (supra-1), it has laid down the following

parameters in para-18 thereof:

.

"18. It is not possible to postulate all situations of hardship, which would govern employees on the

issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the

decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers,

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 far outweigh the equitable balance of the employer's right to

recover."

5. Having regard to the decision and the law laid down

therein that recovery is impermissible from employees belonging

to Class-III, as it would cause hardship to them, this Writ petition

is allowed and order dt. 06.04.2018 (Annexure A-4) is set aside.

No costs.

6. Pending application(s), if any, also stands disposed of.

(M.S. Ramachandra Rao) Chief Justice.

    July 27, 2023                            (Ajay Mohan Goel)
     (hemlata)                                      Judge.