Kishori Lal vs State Of H.P. & Ors
2023 Latest Caselaw 9296 HP

             IN THE HIGH COURT OF HIMACHAL PRADESH,
                           SHIMLA

                           CWPOA No. 4974 of 2020 a/w
                           CWPOA Nos. 4839, 5538 and 5050




                                                         .
                           of 2020.





                           Date of Decision : 13th July, 2023.





    1. CWPOA No. 4974 of 2020

    Kishori Lal                                  .....Petitioner.





                           Versus

    State of H.P. & Ors.
                     r                          .....Respondents.

    2. CWPOA No. 4839 of 2020

    Kanchana Devi                                 .....Petitioner.

                           Versus



    State of H.P. & Ors.                      .....Respondents.

    3. CWPOA No. 5538 of 2020




    Sapna Kumari                                  .....Petitioner.





                           Versus





    State of H.P. & Ors.                      .....Respondents.

    4. CWPOA No. 5050 of 2020

    Rajeev Kumar                                  .....Petitioner.

                           Versus

    State of H.P. & Ors.                        .....Respondents.




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                                  ...2...



    Coram




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





    The Hon'ble Mr. Justice Satyen Vaidya, Judge.





    Whether approved for reporting? No.

    For the Petitioners: Mr. Kulbhushan Khajuria, Advocate and
                         Mr. Tanuj Thakur, Advocate.





    For the Respondents: Mr. Anup Rattan, Advocate General,
                       with Mr. Ramakant Sharma, Addl. A.G.

    Tarlok Singh Chauhan, Judge (Oral)

All these petitions are being decided by a common

judgment as these involve common questions of facts and law.

2. It is not in dispute that the recoveries as sought to be

effected from the petitioners, pertaining to the period when they

have worked as Class-III, which are obviously not permissible

under law, in the light of a judgment rendered by Hon'ble

Supreme Court in "State of Punjab and others versus Rafiq

Masih (White Washer) and others (2015) 4 SCC 334 (2), which

judgment, in turn, has been considered by this Court in CWPOA

No. 3145 of 2019, titled as "S.S. Chaudhary versus State of H.P.

...3...

.

and others" alongwith connected matters, wherein this Court

laid down the following principles:

"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.

...4...

(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.

(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. Not only this, the issue in question is thereafter

decided by Hon'ble Supreme Court in its two very recent

judgments, titled as "Thomas Daniel versus State of Kerala",

Civil Appeal No. 7115 of 2010, decided on 02.05.2022 and "M.P.

Medical Officers Association versus State of Madhya

Pradesh and others", Civil Appeal No. 5527 of 2022, decided on

26.08.2022.

...5...

.

4. Consequently, all the aforementioned petitions are

allowed and impugned office orders wherethrough recoveries

are sought to be effected from the petitioners are quashed and

set aside. The pending application(s), if any, are also disposed of.

                    r          to       (Tarlok Singh Chauhan)
                                                Judge


                                          (Satyen Vaidya)

    13 July, 2023.
         th
                                               Judge.
      (jai)