Himachal Pradesh High Court
Shyama Nand vs State Of Hp & Others on 24 July, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
( 2024:HHC:5931 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWPOA No 7203 of 2020
Date of decision: 24th July, 2024.
Shyama Nand ...Petitioner
Versus
State of HP & others ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes
For the Petitioner: Mr. S.D. Gill, Advocate.
For the Respondent: Mr. Anup Rattan, Advocate General with
Ms.Seema Sharma, Deputy Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioner has approached this Court seeking the following
reliefs:-
(i) That the impugned action of the respondent of the
recovery of pay arrears for Adhoc period of Rs.2,98,914/- (Rs.
Two lakh ninety eight thousand and nine hundred fourteen
only) may kindly be declared unfair, unjust, unwarranted and
iniquitous and the same may kindly be ordered to be quashed
and set aside.
(ii) That the dues of the applicant which have been withheld
by the department after his retirement may kindly be ordered to
be released.
( 2024:HHC:5931 )
2. As apparent from the pleadings, it is undisputed that
petitioner was engaged as Instructor in Industrial Training Institute being run
by Department of Technical Education, Vocational and Industrial Training
.
Himachal Pradesh, in the year 1985 on ad-hoc basis. His services were
regularized in the year 1995. Petitioner stood retired from the Department as
Principal on 28th February, 2019.
3. After retirement of petitioner, a notice dated 13.6.2019
has been served upon him for recovery of Rs.2,98,914/-, the payment
alleged to have been released in excess to him during the period of his ad-
hoc service as ITI Instructor from 1985 to 1995.
4. It is the stand the respondents-State that a similarly
situated person had filed CWP No. 199 of 2010 titled as Neera Sharma vs.
State of HP and others, which was allowed by the High Court by directing
to extend the benefits, in terms of judgment passed in CWP(T) No. 7712 of
2008 titled as Paras Ram vs. State of HP, to Neera Sharma also, if she
was found to be similarly situated as Paras Ram.
5. It has been further stated in reply that the Government
vide letter dated 15th March, 2011 accorded its approval and communicated
that judgment passed in CWP(T) No. 7712 of 2008 had attained finality with
the dismissal of SLP filed by the State Government in the Apex Court vide
order dated 5.4.2010 and, as such, all similarly situated officials including
the petitioner who had uninterrupted ad-hoc service followed by regular
service were declared entitled for counting of ad-hoc service before
regularization, for the purpose of annual increments and so, in view of
( 2024:HHC:5931 )
settled position of law, the Department was advised to implement the
judgment of Court in favour of all similarly situated officials including the
petitioner.
.
6. Further, the case of respondents/State is that in aforesaid
background, pay fixation of petitioner for his service on ad-hoc basis was
done and for the period from 25.10.1987 to 03.03.1995 no arrear was paid
by doing re-fixation on notional basis, however, consequential financial
benefits were paid to him w.e.f. 4.3.1995 to 30.9.2011 by the then Principal
erroneously and thereafter, petitioner retired on attaining the age of
superannuation on 28.2.2019.
7. It is further case of respondents that in furtherance to
letter dated 28.6.2013 received from the Government, it was decided to
review all cases of arrears of ad-hoc/tenure/stop-gap immediately and to
initiate recovery as per instructions contained in the said letter, and the
cases in which incumbents had approached the Tribunal or Court to restrict
the arrears, by applying the judgment in Jai Dev Gupta's case to three
years prior to the date of filing of petition, and in cases where incumbents
had not approached the Court, to grant benefits on notional basis by way of
notional pay fixation without giving any back wages/arrears, and to recover
excess payment by initiating the recovery in terms of judgment of the
Supreme Court in Chandi Prasad Uniyal & others vs. State of
Uttrakhand and others reported in (2012)8 SCC 417.
( 2024:HHC:5931 )
8. In aforesaid backdrop, after retirement of petitioner, his
leave encashment amounting to Rs.9,37,940/- has not been released for
alleged recovery to be effected from him amounting to Rs.2,93,651/-.
.
9. Admittedly the amount, alleged to have paid in excess,
has been paid to the petitioner, in reference of the ad-hoc service rendered
by him against Class-III posts, after his regularization in terms of the
judgment of the High Court passed in CWP(T) No. 7712 of 2008 titled Paras
Ram vs. State of HP., which attained finality on dismissal of SLP preferred
by the State. r
10. From reply, it is apparent that no-where, in any order
passed by Court, arrears of such payment in terms of Paras Ram's
judgment were restricted to three years prior to filing of petition. The
amount, which is stated to be disbursed to petitioner, was not released on
his representation much less on mis-representation. The said amount was
disbursed by the Department on its own.
11. The respondent/State is placing reliance on judgment
passed the Supreme Court in Chandi Prasad Uniyal's case, supra. But
the said judgment has been considered by the Supreme Court in its
subsequent judgment i.e. State of Punjab vs. Rafiq Masih (White
Washer) and others reported in (2015)4 SCC 334 and thereafter, the
Supreme Court has summed-up the conclusion as under:-
"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
( 2024:HHC:5931 )
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."
12. In the present case, the amount proposed to be
recovered from the petitioner is Rs.2,93,651/-, whereas leave encashment
amounting to Rs.9,37,940/- has been withheld by respondents, which is
highly arbitrary.
13. It is also noticeable that during the service tenure of
petitioner, no notice for effecting the recovery was ever served upon
petitioner and notice dated 13.6.2019, Annexure A-1, has been served upon
( 2024:HHC:5931 )
the petitioner after his retirement on 28.02.2019 that too with respect to
recovery of amount paid about 8 years ago.
.
14. It is also evident from communication dated 15th March,
2011, Annexure R-2, placed on record with reply of State, that amount
proposed to be recovered was disbursed to petitioner in terms of opinion of
Law Department based upon the judgment passed in CWP(T) No. 7712 of
2008 by communicating that in view of settled position of law, the
Department was advised to implement the judgment of Hon'ble High Court
in favour of similarly situated officials including the petitioner.
15. In aforesaid facts and circumstances, not only the fact that
present case is covered under Clauses (i) to (iii) of para 18 of Rafiq Masih's case,
but also for the decision of the Government communicated vide letter dated 10/15 th
March, 2011, Annexure R-2, the proposed recovery is illegal and accordingly, same
is quashed.
16. It is also apt to record that Pension Rule 39 sub-rule (2)
provides that leave encashment can be withheld only while employee is under
suspension or disciplinary or criminal proceedings are pending against him on the
date of retirement. But it was not so in present case and, therefore, also with-
holding disbursement of leave encashment is illegal.
17. Consequently, respondents are directed to ensure release of
leave encashment amounting to Rs.9,37,940/- on or before 16th September, 2024,
failing which respondents shall be liable and petitioner shall be entitled for and
respondents shall be liable to pay interest at the rate of 5% per annum thereon
( 2024:HHC:5931 )
from the date of accrual till the date of final disbursement and in that eventuality,
the same, after payment thereof to the petitioner, shall be recovered from erring
official/officer responsible for causing the delay in disbursement and shall be
.
deposited in the Treasury within four weeks thereafter.
With aforesaid observations, present petition stands allowed and
disposed of in aforesaid terms, so also, pending miscellaneous application(s), if
any.
(Vivek Singh Thakur),
Judge.
24th July, 2024. (Ranjan Sharma),
(ms) Judge.
