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2025 DIGILAW 864 (HP)

Kirpa Ram v. State of H. P.

2025-05-01

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. Petitioner is aggrieved against the recovery of an amount ordered against him by the respondents on account of alleged excess payment made to him w.e.f. 27.08.2009 to 31.12.2015 and w.e.f. 01.01.2016 to 31.12.2021. 2. Heard learned counsel for the parties and considered the case file. 2(i). 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 Mason, Grade-II, a Class-III employee. His category was also one of the categories which was clubbed and re-designated as Junior Technician (Mechanic-cum-Fitter Grade-II). 2(ii). The State of Himachal Pradesh on 01.09.1998 granted 3-tier payscale 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. Vide office order dated 02.04.2014, benefit of Rs.2400/- was granted to the petitioner on his placement as Technician Grade-II (Mechanic-cum-Fitter). This was pursuant to approval conveyed by the higher authorities on 07.03.2014. On that basis, the petitioner was also granted benefit of ACP Scheme on completion of 4 & 9 years of service w.e.f. 27.08.2009 and 01.01.2014, respectively. The benefits were granted to the petitioner on notional basis w.e.f. 27.08.2009 and on actual basis w.e.f. 09.08.2012 vide office order dated 07.03.2014. 2(iii). It appears that vide office letter dated 31.12.2021 the proficiency benefit earlier granted to the petitioner under office order dated 02.04.2014 was withdrawn. His pay was regulated and re-fixed under office order dated 24.03.2022. This was done in view of clarification letter dated 29.05.2014 that category of Technician is 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.1,98,715/- recoverable from the petitioner as excess paid to him for the period 27.08.2009 to 31.12.2015 and also for the period of 01.01.2016 to 31.12.2021 (Annexure P-1). Out of above amount, an amount of Rs.35,000/- has been recovered from the petitioner. Recovery of remaining amount Rs.1,63,715/- had been stayed pursuant to interim order passed in this petition on 10.07.2024. 3. Hon’ble Apex Court in State of Punjab and Ors. Out of above amount, an amount of Rs.35,000/- has been recovered from the petitioner. Recovery of remaining amount Rs.1,63,715/- had been stayed pursuant to interim order passed in this petition on 10.07.2024. 3. Hon’ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334 (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. 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., (2012) 8 SCC 417 has held as under in CWPOA No.145 of 2019 (S.S. Chaudhary Vs. State of H.P. and Other 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 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. (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 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 gudielines 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., SLP(C) No(s). 5918/2024 decided on 04.04.2024 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 for 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. the year 2014 onwards till 2022. Petitioner is a Class-III employee left with one month to superannuate. In the given facts and circumstances, the respondents cannot be permitted to recover alleged overpayment from the petitioner at the fag end of his service career. This recovery would otherwise be very harsh upon him. This writ petition is therefore allowed. Recovery ordered by the respondents vide Annexure P-1 is quashed and set aside. Respondents are directed to release the recovered amount of Rs.35,000/- 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. Pending miscellaneous application(s), if any, to also stand disposed of.