Himachal Pradesh High Court
Kishori Lal vs State Of H.P. & Ors on 13 July, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
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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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)
