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Himachal Pradesh High Court · body

2015 DIGILAW 422 (HP)

Arjun Singh v. State of H. P.

2015-04-30

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. The petitioner's pay was revised vide office order dated 29.4.1997. However, the same was re-fixed vide office order dated 16.5.2009 and recovery was ordered to be made vide office orders Annexure P-4 and P-5 dated 15.7.2009 and 12.8.2009, respectively. The case of the petitioner, precisely is that the petitioner has not been heard before re-fixing his pay vide office order dated 16.5.2009. 2. Mr. G.R.Palsra, Advocate, has vehemently argued that the petitioner was not afforded an opportunity of hearing before the issuance of Annexure P-2 dated 16.5.2009. He then contended that his client has neither mis-represented the facts nor concealed any information from the employer. 3. The petitioner's pay was revised vide office order dated 29.4.1997 and the same has been re-fixed vide office order dated 16.5.1997, after a gap of almost 12 years on 16.5.2009. Their lordships of the Hon'ble Supreme Court, in a recent judgment, in the case of State of Punjab and others etc. versus Rafiq Masih (White Washer) etc., reported in JT 2015 (1) SC 95, have laid down the following principles governing the situation where recovery by the employers would be impermissible in law. It has been held as follows: ?12. 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 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. (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.? 4. In the instant case, the recovery is ordered to be made after a gap of about 12 years. The case is covered by the ratio of the judgment cited hereinabove. 5. Accordingly, the writ petition is allowed. Annexure P-2 dated 16.5.2009, Annexure P-4 dated 15.7.2009 and Annexure P-5 dated 12.8.2009, are quashed and set aside. The respondents are directed not to recover the amount of Rs. 41,322/- from the petitioner. Pending application (s), if any, shall stand disposed of.