Kishori Lal vs State Of H.P. & Ors

Bipin Chander Negi, J

The petitioner, who stood retired from service as Jr. Engineer (Mechanic) Class-III has filed the present petition seeking following reliefs:-

“(i) That the impugned recovery order as Annexure P-2 may kindly be quashed and set aside.

(ii) That the respondent may kindly be directed to refund the recovered amount of Rs.1,22,386/- to the petitioner.”

Admitted, facts of the case are that petitioner was granted work charge status on 1.1.1994 as Mechanic Grade-II, vide order dated 5. 10.1995. Subsequent to the aforesaid, the category of the petitioner was redesignated as Jr. Technician (Mechanic-cum-Fitter Grade-II). After the redesignation as Jr. Technician, the petitioner on 1.9.1998 was granted three tier pay structure.

The petitioner was granted benefits of new Assured Carrer Profession Scheme on completion of nine years w.e.f 1.1.2003 and 14 years w.e.f. 1.1.2008, which was granted on notional basis on 27.8.2009 and on actual basis w.e.f. 9.8.2012, thereafter, pay of the petitioner was fixed on 5.10.2013.

The petitioner was promoted to the post of Jr. Engineer (Mechanical) Class-III, vide order dated 28.9.2015. The petitioner stood retired from service on 28.2.2018. Post retirement the pay of the petitioner was refixed vide order dated 13.3.2018. The refixation in the case at hand was done, based on the facts that the petitioner was not entitled for Assured Carrer Progression Scheme after 4-9-14 years, as per Government clarification dated 29.5.2014. On account of refixation, it was determined that the petitioner had been paid excess amount of Rs.1,22,386/- and the same was recovered from the leave encashment of the petitioner.

Recovery was ordered to be effected against the petitioner after his retirement vide order dated 12.6.2018 (Annexure P-2). Since the petitioner was holding a Class-III post, therefore, recovery could not have otherwise been effected, more particularly, in the light of the judgment rendered by the Hon’ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, AIR 2015 SC 696, which in turn has been relied upon by this Court in CWPOA No.3145 of 2019, titled S.S. Chaudhary vs. State of H.P. and others, decided on 24.03.2022, wherein the Court has laid down the following parameters:-

“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 be 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 ClassI/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 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.”

Accordingly, present petition is allowed and the recovery is ordered to be quashed and set aside. The respondents are directed to refund the amount of recovery so effected on or before 02.02.2024, failing which, the respondents would be liable to pay interest @ of 9% per annum till its realization.

Pending miscellaneous application(s), if any, shall also stand disposed of.