Munshi Ram Sharma vs State Of Himachal Pradesh And ...
2023 Latest Caselaw 17948 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                          CWP No.4788 of 2023




                                                                         .
                                          Date of Decision : 10.11.2023





    Munshi Ram Sharma
                                                                 ...... Petitioner
                                   Versus





    State of Himachal Pradesh and others
                                                                 ......Respondents

    Coram:




    For the petitioner

                               :

    The Hon'ble Mr. Justice Bipin Chander Negi, Judge
    Whether approved for reporting?1 No


                                   Mr. A.K.Gupta, Advocate.

    For the respondents :          Mr. Anup Rattan, Advocate General with
                                   Ms. Priyanka Chauhan, Deputy Advocate
                                   General, for the respondents.



    Bipin Chander Negi, Judge (oral)

The instant petition has been filed for grant of the

following relief substantive relief:

" That the recovery order passed against the petitioner may be set-aside/quashed and the respondents may be ordered not to recover any amount from the petitioner on the strength of the order passed on 4th April, 2023."

2. The recovery was ordered to be effected against the

petitioner vide order dated 04.04.2023, Annexure P-1. Since the

Whether reporters of Local Papers may be allowed to see the judgment?

petitioner was holding the Class-III post, therefore, recovery could

not have otherwise been effected.

.

3. More particularly, in the light of the judgment rendered

by the Hon'ble Supreme Court in State of Punjab and others vs.

Rafiq Masih (White Washer) and others, AIR 2015 SC 696,

which in turn has been relied upon by this Court in CWPOA

No.3145 of 2019, titled S.S. Chaudhary vs. State of H.P. and

the following parameters:-

r to others, decided on 24.03.2022, wherein the Court has laid down

"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."

4. Accordingly, present petition is allowed and the recovery

ordered to be effected vide order dated 04.04.2023 (Annexure P-1)

is ordered to be quashed and set aside. The respondents are

directed to refund the amount of recovery so effected on or before

02.02.2024, failing which, the respondents would be liable to pay

interest @ of 9% per annum till its realization.

Pending miscellaneous application(s), if any, shall also stand

.

disposed of.

                                               ( Bipin Chander Negi)
    November 10, 2023 (Nisha)                          Judge


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