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Himachal Pradesh High Court · body

2025 DIGILAW 884 (HP)

Dharam Dass v. State of H. P.

2025-05-02

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. CMP No.8576 of 2025 Allowed and disposed of. CWP No.2946 of 2021 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 to31.01.2019. 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 It appears that the proficiency benefit previously granted to the petitioner under office order dated 22.07.2013 was withdrawn.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., (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. 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 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 therecovery 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. (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., 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 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 aClass-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.