Himachal Pradesh High Court
Dharam Dass vs State Of H.P. And Another on 2 May, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2946 of 2021
Decided on: 2nd May, 2025
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Dharam Dass .....Petitioner
Versus
State of H.P. and another .....Respondents
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Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting? 1
For the Petitioner: Ms. Pragti, Advocate vice Mr. Digvijay
Singh, Advocate.
For the Respondents: Ms. Leena Guleria, Deputy Advocate
General.
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Jyotsna Rewal Dua, Judge
Allowed and disposed of.
Petitioner, a retired employee, is aggrieved
against the recovery of Rs.1,30,050/- effected by the
respondents from his sanctioned Gratuity on account of
alleged excess payment made to him w.e.f. 01.01.2013 to
31.01.2019.
Whether reporters of print and electronic media may be allowed to see the order? Yes.
2. Heard learned counsel for the parties and
considered the case file.
2(i). Petitioner was appointed as Daily Waged Pump
Operator on 16.07.1987. His services were regularized on
01.01.1998. The State of Himachal Pradesh formulated a
scheme on 30.08.1997 re-designating all the skilled and
semi-skilled categories as Junior Technicians. Total 29
categories of skilled workers were re-designated as Junior
Technician. The petitioner was serving as Pump Operator, a
Class-III employee. His category was also one of the
categories which was clubbed and re-designated as Junior
Technician.
2(ii). The State of Himachal Pradesh on 01.09.1998
granted 3-tier pay scale to the category of Junior
Technician in the ratio of 20:30:50 under Assured Career
Progression Scheme ('ACP Scheme') for eliminating
stagnation in career progression. Petitioner was also
granted benefit of New ACP Scheme on completion of 4, 9 &
14 years of service.
2(iii). Petitioner retired as Pump Operator Technician
Grade-I (Class-III) on 31.01.2019. Gratuity amounting to
Rs.4,07,358/- was sanctioned in his favour on 15.05.2019.
Respondents effected recovery of an amount of
Rs.1,30,050/- from the Gratuity sanctioned in his favour.
The reason cited for recovery was excess payment made to
the petitioner w.e.f. 01.01.2013 to 31.01.2019.
2(iv). It appears that the proficiency benefit previously
granted to the petitioner under office order dated
22.07.2013 was withdrawn. This was done in view of
clarification letter dated 29.05.2014 that the category of
Technician was not entitled for the benefit of ACP Scheme.
The petitioner had enjoyed the benefits of 4-9-14
years under the ACP Scheme, accordingly, the respondents
subsequent to re-fixation of petitioner's pay worked out an
amount of Rs.1,30,050/- recoverable from the petitioner as
excess paid to him for the period 01.01.2013 to 31.01.2019.
The said amount has already been recovered from the
retirement gratuity payable to the petitioner.
3. Hon'ble Apex Court in State of Punjab and
Ors. vs. Rafiq Masih (White Washer) and Ors. 2 has held
that recovery by the employer from the employees belonging
to Class-III and Class-IV services, where payments have
mistakenly been made by the employer in excess of their
entitlement, would be impermissible.
(2015) 4 SCC 334 (2)
A Division Bench of this Court relying upon the
aforesaid judgment and on consideration of several other
precedents in the timeline including Chandi Prasad
Uniyal & Ors. Vs. State of Uttarakhand & Ors.3 has
held as under in CWPOA No.145 of 2019 (S.S.
Chaudhary Vs. State of H.P. and Others and connected
matters), decided on 24.03.2022:-
"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 Class-
I/Group-A and Class-II/Group-B, but even then,
the Court may be required to see whether the
(2012) 8 SCC 417
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."
In Jogeswar Sahoo & Ors. vs. The District
Judge, Cuttack & Ors.4, Hon'ble Apex Court held that
excess payment made to an employee cannot be recovered,
if such payment was not on account of any fraud or
misrepresentation on the part of the employee. Also, excess
payment to the employee due to any wrong application of
the rule or incorrect calculation on the part of the employer
is not recoverable.
4. The ratio of the aforesaid decision is applicable
to the case of the petitioner. Admittedly, it was not for
petitioner's fault or misrepresentation that respondents had
granted him benefit of higher pay scale. The petitioner had
continued to receive the benefit w.e.f. 01.01.2013 onwards
till his superannuation on 31.01.2019. Petitioner is a
SLP(C) No(s). 5918/2024 decided on 04.04.2024
Class-III employee and stood already retired on 31.01.2019.
In the given facts and circumstances, the respondents
could not have recovered the alleged overpayment from the
petitioner after his superannuation. The recovery at this
stage, for the alleged overpayment made to the petitioner
from more than ten years ago, would otherwise be very
harsh upon him. This writ petition is, therefore, allowed.
Recovery effected by the respondents vide Annexure P-1 is
quashed. Respondents are directed to release the recovered
amount of Rs.1,30,050/- to the petitioner within four weeks
from today, failing which the amount shall carry interest
@ 5% per annum from the date of filing the petition.
The writ petition stands disposed of in the above
terms, so also the pending miscellaneous application(s), if
any.
Jyotsna Rewal Dua
May 02, 2025 Judge
Mukesh
