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2024 DIGILAW 333 (HP)

Sushil Singh v. State of Himachal Pradesh

2024-05-08

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has, inter-alia, prayed for the following reliefs: “(I) That in view of the above mentioned facts and circumstances of the case the impugned letter dated 21.03.2023 vide Annexure P-4 and show cause notice dated 20.05.2023 vide Annexure P-5 may kindly be ordered to be quashed and set aside, in the interest of justice and fair play. (II) That the respondents may kindly be directed to release all the financial and consequential benefits along with interest arising out of superannuation of his service including leave encashment, gratuity, pension etc. to the petitioner.” 2. The case of the petitioner is that he was appointed as a Lecturer in the Subject of English on 03.03.1999. His initial appointment was on contract basis. His services were regularized w.e.f. 31.12.2008. After regularization he was granted revised pay scale of 12090+4200. As per the increment policy of the State Government, the pay scale of the petitioner was increased @ 3% per annum. Feeling aggrieved by his pay scale, the petitioner alongwith other similarly situated persons filed CWP No. 189 of 2012, titled Jatinder Singh and Others vs. State of H.P. before this Court for counting contract period for determining the revised pay scale and increments etc. Further prayer made in the Writ petition was for conferment of benefits upon the petitioner in terms of the law laid down by this Court in CWP (T) No. 14232 of 2008, titled Nek Ram vs. State of H.P. 3. CWP No. 189 of 2012 was disposed of by this Court in terms of Annexure P-1, dated 10.01.2012 in the following terms: “According to the petitioners, the issue is covered in their favour by the judgment of this Court rendered in CWP (T) No. 14232 of 2008, titled as Nek Ram and Others vs. State of H.P. and Others, decided on 17.11.2009. If that be so, similar treatment shall also be extended to the petitioners herein also, as extended to the petitioners in the above referred decision, in case the petitioners are also similarly situated, within a period of three months from the date of production of a copy of this judgment along with a copy of the writ petition by the petitioner concerned before the second respondent/competent authority.” 4. Thereafter, the Department re-assessed the pay scale of the petitioner and benefits as were admissible to him stood granted. The petitioner superannuated from the service of the respondent-Department on 28.02.2023. 5. The grievance of the petitioner is that after his superannuation a communication has been issued by the respondent-Department, i.e. Annexure P-4, followed with Annexure P-5, dated 21.03.2023 and 20.05.2023, respectively, in terms whereof, it has been mentioned that the petitioner was granted increments for contract period contrary to the rules and mistake be rectified by effecting recoveries from the petitioner of the over payment so made after issuance of a Show Cause Notice. In terms of communication dated 20.05.2023, the petitioner has been called upon to submit his opinion with documentary proof on recovery of excess payment. 6. Learned Senior Counsel appearing for the petitioner has argued that the impugned order per se is not sustainable in the eyes of law, for the reason that it is not the case of the Department that the alleged wrong fixation of pay scale was at the behest of the petitioner. He further submitted that otherwise also in light of the law laid down by Hon’ble Supreme Court of India in State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 , as the impugned order has been issued after the superannuation of the petitioner, no recovery can be effected and because the impugned order does violence to the law declared by Hon’ble Supreme Court of India, therefore, the petition be allowed, the impugned order be quashed and set aside. 7. Reply to the petition has been filed by the respondents. 8. Learned Advocate General by placing reliance upon the contents of the reply has submitted that as the recovery has been initiated by the Department because over payment was made to the petitioner by granting him increments for the period when he rendered service on contract basis, whereas he was not entitled for increments for said service, therefore, there is no infirmity in the communication issued by the Department. Accordingly, he prays that as there is no merit in the petition, the same be dismissed. 9. I have heard learned Senior Counsel for the petitioner as also learned Advocate General and I have also carefully gone through the pleadings as well as the documents appended therewith. 10. Accordingly, he prays that as there is no merit in the petition, the same be dismissed. 9. I have heard learned Senior Counsel for the petitioner as also learned Advocate General and I have also carefully gone through the pleadings as well as the documents appended therewith. 10. As already stated hereinabove, the petitioner superannuated from the service of the respondent-Department on 28.02.2023. It is a matter of record that while the petitioner was in service, no Show Cause Notice ever was issued to him, on the ground as to why recoveries be not effected from him on account of excess payment having been made to him by wrongly granting him increment for the service rendered by him on contract basis. The communications to this effect, dated 21.03.2023 and 20.05.2023 have been issued post retirement of the petitioner. 11. Hon’ble Supreme Court of India in State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 , has been pleased to hold as under: “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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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 other case, 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. (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. A perusal of this judgment demonstrates that besides other illustrations, the Hon’ble Supreme Court held that recovery from retired employee or employees who are due to retire within one year of the order of recovery “would be impermissible in law.” 13. In view of the law laid down by Hon’ble Supreme Court of India, as the recovery of excess payment from the petitioner was impermissible in law in light of the fact that he already stood superannuated before issuance of the impugned communications, this petition succeeds. Impugned Annexures P-4 and P-5 are quashed and set aside and respondents are directed not to act against the petitioner on the basis of the impugned communications and effect any recovery etc. from him. 14. The petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.