Jeet Kumari vs Himachal Pradesh State Forest ...
2023 Latest Caselaw 15363 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1681 of 2023 Date of Decision: October 5, 2023 _______________________________________________________

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    Jeet Kumari                                                                         .......Petitioner





                                   Versus

Himachal Pradesh State Forest Development Corporation Limited and others ... Respondents

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 yes For the Petitioner: Mr. Anshul Atri, Advocate.

For the Respondents Mr. Abhishek Nagta, Advocate. _______________________________________________________ Sandeep Sharma, Judge(oral):

Being aggrieved and dissatisfied with orders dated 13.10.2022 and

21.12.2022, Annexure P-6 and P-8 respectively, whereby a sum of

Rs.61,537/- came to be ordered to be recovered from the petitioner in 24

installments at the rate of Rs.2,500/- per month, petitioner has approached

this court in the instant proceedings filed under Art. 226 of the Constitution

of India, praying therein to set aside aforesaid orders.

2. Precisely, the facts of the case, as emerge from pleading adduced

on record are that the petitioner though was appointed in the respondent

Corporation on 21.12.1998 on daily wage basis, but her services were

subsequently regularized on 1.5.2012. Petitioner was further promoted to

various posts and ultimately as a Senior Assistant on 1.5.2022. On

9.8.2012, State of Himachal Pradesh introduced new Assured Career

Progression Scheme, thereby providing that a Government employee after

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

rendering services of 4, 9 and 14 years in a post, without any promotion to

higher level on account of non-availability of vacancy or non-existence of

promotional avenue, shall be granted pay, which is next in hierarchy of

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grade pays. Subsequently, vide communication dated 7.7.2014 (Annexure

R-1),. Government of Himachal Pradesh clarified that only 3

enhancements/upgradation are to be allowed under the ACPS.

Government of Himachal Pradesh allowed revised pay band/ grade pay

with effect from 1.10.2012 to various categories of Government employees.

Petitioner being a beneficiary of aforesaid re-revision was also granted

benefit of enhancement in pay, whereby her pay was enhanced from

Rs.6400 +1900 Grade Pay to Rs.10300+3200 Grade Pay.

3. Vide communication dated 26.2.2013 (Annexure R-2), Government

of Himachal Pradesh clarified that the re-revision shall be treated as an

enhancement under 4, 9 and 14 & 8,16, 24 and 32 Assured Career

Progression Schemes.

4. Vide communication dated 3.11.2016 (Annexure R-3), Government

clarified under Item No. 4 that if an employee has gained any financial

enhancement/benefit before completing four years' service then the

subsequent second benefit under ACPS will be admissible only completion

of nine years' service and if an employee has gained second financial

enhancement /benefit before completing nine years service, he will be

eligible for third benefit under ACPS only on completion of 15 years of

servie and not before.

5. Petitioner was allowed benefit of re-revision of pay scale on 8.5.2014

but due to inadvertent mistake, she was allowed first ACPS on 4 years from

8.5.2014 i.e. on 8.5.2018, whereas, as per rules/ Notifications/clarifications

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detailed herein above, the petitioner could have been granted benefit of

ACPS after 9 years, especially when she had already availed the benefit of

re-revision. Pay fixation on completion of four years service was done vide

office order dated 24.8.2018 (Annexure R-4), wherein it came to be

stipulated that,"In case any excess payment is noticed due to above,

fixation at later stage, excess paid amount will be recovered from the said

official in lump sum."

6. Respondent-Corporation, after having noticed aforesaid mistake,

vide communication dated 16.7.2022, (Annexure P-4), decided to withdraw

the benefit of ACPS granted to the petitioner and thereafter, vide

communication dated 13.10.2022 (Annexure P-6), directed Divisional

Manager, Forest Working Division to recover Rs.61,537/- from the petitioner

in 24 installments at the rate of Rs.2,500/- per month.

7. In the aforesaid background, petitioner has approached this court in

the instant proceedings, praying therein to set aside aforesaid orders

inasmuch recovery has been ordered to be effected from her, on account of

overpayment.

8. Pursuant to notices issued in the instant proceedings, respondent

Corporation has filed reply, wherein facts as have been taken note herein

above, have not been disputed, rather, stand admitted. It is stated in the

reply, that since benefit of first ACPS was erroneously granted to the

petitioner, no illegality can be said to have been committed by the

Corporation, while issuing orders impugned in the instant proceedings.

9. Precisely the grouse of the petitioner as has been highlighted in the

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petition and further canvassed by Mr. Anshul Attri, learned counsel for the

petitioner is that once amount sought to be recovered from the petitioner

was not received by the petitioner due to any mis-representation on her

part, Corporation is estopped from effecting recovery from the petitioner

after a period of five years, in terms of judgment passed by Hon'ble Apex

Court in State of Punjab v. Rafiq Masih (White Washer) etc. CA

No.11527 of 2014 (Arising out of SLP ( C) No. 11684 of 2012), wherein, it

has been held that recovery from employee belonging to Class III and

Class IV (Group C and D) is impermissible in law, especially, when there is

nothing to suggest that the amount sought to be recovered was received by

the employee concerned on account of his/her mis-representation.

10. Mr. Abhishek Nagta, Advocate appearing for respondent-

Corporation, while refuting the submissions made by learned counsel for

the petitioner, supported the impugned orders and vehemently argued that

a bare perusal of order dated 24.8.2018 (Annexure R-4), whereby benefit

of first ACPS was accorded to the petitioner, clearly suggests that the

recipient was put to caveat that overpayment, if any, as a result of pay

fixation if pointed by audit party, shall be recovered in lump sum from the

concerned official. He further submitted that since immediately after having

noticed the mistake, respondent Corporation initiated recovery proceedings,

judgment rendered in Rafiq Masih supra, is not applicable in the case at

hand. While making this court peruse judgment passed in Rafiq Masih,

supra, learned counsel for the respondent Corporation argued that when

excess/unauthorized amount is detected within a short period of time, it is

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open for employer to recover the same from the employee. He further

submitted that since in the case at hand, respondent Corporation within a

period of five years of the excess payment, detected the mistake and

ordered recovery, judgment passed by Hon'ble Apex Court in Rafiq Masih

supra will be of no help, as far as petitioner is concerned. He placed

reliance upon a judgment rendered by Hon'ble Apex Court in Chandi

Prasad Uniyal & Ors. v. State of Uttarakhand, Civil Appeal No. 5899 of

2012, decided on 17.8.2012 to state that any amount paid /received without

authority of law, can be recovered, barring few exceptions of extreme

hardships, but not as a matter of right.

11. Having heard learned counsel for the parties and perused the

material available on record this court finds that there is no dispute that vide

communication 24.8.2018, (Annexure R-4), benefit of ACPS on completion

of 4 years of service with effect from 8.5.2014, erroneously came to be

accorded in favour of the petitioner because before that she had availed

the benefit of re-revision of pay in terms of memorandum dated 26.2.2013

(Annexure R-2) issued by Government of Himachal Pradesh. It is also not in

dispute that the aforesaid benefit of ACPS was never granted to the

petitioner on account of any mis-representation on her part, rather, the

respondent Corporation, of its own, having taken note of completion of 4

years of service, proceeded to accord benefit of financial upgradation

under on completion of four years of service under ACPS. After five years of

grant of aforesaid benefit, Corporation, by way of impugned orders, ordered

for recovery of the excess amount.

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12. The question which needs determination in the case at hand is,

"whether the recovery, which otherwise is qua the amount, to which the

petitioner was not legally entitled, can be effected after an inordinate delay

of five years especially from a Class III employee?"

13. To explore answer to aforesaid question, it would be apt to take note

of following paragraph of Rafiq Masih, supra:

"11. For the above determination, we shall refer to some

precedents of this Court wherein the question of recovery of the

excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.

(i). Reference may first of all be made to the decision in Syed

Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:

"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial

discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts

may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar,

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(1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC

492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."

(emphasis is ours) First and foremost, it is pertinent to note, that

this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it

was sought to be concluded, that when the excess unauthorised

payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous

to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation

of Article 14 of the Constitution of India. The logic of the action in

the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a

refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the

education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it

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would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it

would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. In this context, reference may also be made to the decision rendered by this

Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under: "11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-

480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10

years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with

effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them.

Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault

of the respondents, the petitioners being in no way responsible for the same."

(emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and

proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.

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(ii). Examining a similar proposition, this Court in Col. B.J. Akkara

v. Government of India, (2006) 11 SCC 709, observed as under: "28. Such relief, restraining back recovery of excess payment, is

granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service

would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any

subsequent action to recover the excess payment will cause

undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is

detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of

any particular case refuse to grant such relief against recovery."

(emphasis is ours) A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a

reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in

lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are

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therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class- IV - sometimes denoted as Group 'C' and Group 'D') of service,

should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and

arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India."

14. In the aforesaid judgment, Hon'ble Apex Court summarized certain

situations, wherein recoveries by employers on account of excess payment

would be impermissible in law. It has been held that recoveries from

employees belonging to Class III and IV (Group C and D) employees shall

not be permissible.

15. If it is so, time gap, if any, between excess payment and recovery is

of no relevance, so far Class III and IV employees are concerned. It is not in

dispute that the petitioner is a Class III employee, as such, recovery sought

to be effected by way of impugned orders from the petitioner is not

permissible especially, when, there is nothing on record to suggest that the

benefit of ACPS was received by petitioner by way of mis-representation on

her part.

16. Reliance placed by learned counsel for the respondent on Chandi

Prasad Uniyal supra, is wholly misconceived because, Hon'ble Apex Court

while rendering judgment in Rafiq Masih, has already taken note of

aforesaid judgment.

17. Otherwise also, if judgment rendered by Hon'ble Apex Court in

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Chandi Prasad Uniyal, is perused in its entirety, it clearly provides that

amount paid/received without any authority of law can be recovered barring

a few exceptions of extreme hardships, but not as a matter of right.

Exception of extreme hardships has been beautifully summarized by

Hon'ble Apex Court in Rafiq Masih supra wherein recovery from Class III

and IV employees has been held to be impermissible.

18. Recently Division Bench of this Court in case CWPOA No. 3145 of

2019, titled S.S. Chaudhary v. State of H.P. & Others, decided on

24.3.2022, having taken note of various judgments rendered from time to

time, including Rafiq Masih, laid down certain parameters, whereby

recovery by an employer would be impermissible from the employees,

relevant paragraph, whereof is reproduced herein below:

"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 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 ClassI/Group-A and Class-

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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 channelised and inflexible gudielines 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."

19. Consequently in view of detailed discussion made herein above and

law taken note of, this court finds merit in the present petition and the same

is allowed. Impugned orders dated 16.7.2022 (Annexure P-4), dated

13.10.2022 (Annexure P-6) and dated 21.12.2022 (Annexure P-8) are

quashed and set aside. Respondent Corporation is directed to refund the

amount, if any, recovered from the petitioner, pursuant to the aforesaid

orders, forthwith.

In the aforesaid terms, present petition is disposed of alongwith

pending application(s), if any.

(Sandeep Sharma), Judge October 5, 2023

(vikrant)