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2016 DIGILAW 1000 (HP)

Desh Raj Nehria v. Rajinder Parsad Dhiman

2016-06-02

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2016
JUDGMENT : Mansoor Ahmad Mir, J. CMP (M) No. 882 of 2016. 1. Learned counsel for respondent No. 1 has moved this application for bringing on record the legal representatives of respondent No.1 who has passed away during the pendency of the appeal. The learned counsel for the petitioner has no objection in granting the said application. Accordingly, the application is granted and the legal representatives, as mentioned in application are ordered to be brought on record. They shall figure as respondents No. 1(a) to 1 (c) respectively, in the array of the respondents. Registry to carry out necessary correction in the cause title. Let amended memo of parties be filed within two days. The application is disposed of. 2. At this stage, learned counsel for the appellant stated that respondent No.1 Rajinder Parsad Dhiman had questioned the appointment of the appellant on the grounds taken in the writ petition which was allowed by the Writ Court. The promotion of the appellant was quashed with direction to the State-respondent to examine the case of the writ petitioner Rajinder Parsad Dhiman, constraining him to file the appeal in hand on 2.11.2010 and the operation of the impugned judgment came to be stayed vide order dated 9.12.2010, with further direction to the State/respondents to consider the case of the petitioner for granting him promotion to any other post. It is apt to reproduce order dated 9.12.2010 herein. “LPA No. 259 of 2010 & CMP No. 1277 of 2010. Notice. Mr. Vivek Singh, learned counsel accepts notice on behalf of respondent No.1 and Mr. J.K. Verma, learned Deputy Advocate General accepts notice on behalf of respondents No. 2 and 3. There will be a stay of reversion of the appellant from the post of Executive Engineer for the time being. However, it is made clear that in case the writ petitioner is due to be considered for promotion to any other post in terms of the benefit granted to him in the judgment under appeal, the same shall be considered by the competent authority and the pendency of the appeal shall not stand in the way of the consideration, as above.” 3. By efflux of time, it appears that the lis has become Infructuous, for the following reasons. 4. The dispute in the lis was relating to the promotion of the writ respondent/appellant herein. By efflux of time, it appears that the lis has become Infructuous, for the following reasons. 4. The dispute in the lis was relating to the promotion of the writ respondent/appellant herein. He has now reached the age of superannuation and is enjoying all service/ retrial benefits. It was not the case of the writ petitioner before the Writ Court that he had earned the orders by playing fraud etc. or he has contributed in getting the orders in his favour. 5. The question is-whether, in terms of the impugned judgment, the benefits received are to be recovered from the appellant, who has now reached the age of superannuation? The answer is in negative for the following reasons. 6. The apex Court in State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. reported in 2015 AIR SCW 501 has laid down the same principles of law. It is apt to reproduce paras 6, 7, 9, 10 and 11 of the said judgment herein. “6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee. 7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court. 8.…..…… 9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter-alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections. 10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India. 11…………Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation…….” 7. Having said so, we deem it proper to uphold the impugned judgment with the command to the State/ respondents not to effect recovery from the writ respondent/ appellant herein and allow him to enjoy all the pensionery benefits, to which he is entitled to. Ordered accordingly. 8. This Court, vide interim order dated 9.12.2010, had already directed the State/respondent to consider the case of the petitioner for promotion in terms of the impugned judgment. 9. The State/respondents are directed to comply with the directions contained in the order dated 9.12.2010, quoted supra, read with the impugned judgment. 10. Having said so, the LPA is disposed of, alongwith pending applications, if any.