Santosh Sharma vs State Of H.P. & Ors

Bipin Chander Negi, J

The instant petition has been filed for grant of the following substantive relief:-

“That Annexure P-2 may be set aside/quashed and the respondents may be ordered to refund the recovered amount with interest at the rate of 9% per annum thereon.”

The petitioner had retired from service on 30.06.2018 as a Class-III employee. Recovery was sought to be effected against the petitioner in pursuance to Office Order dated 09.08.2018 (Annexure R-1), wherein, pay of the petitioner was re-fixed post his retirement.

Since the petitioner was a Class-III employee and recovery in the case at hand was sought to be effected post retirement, recovery ought not to 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 ClassIII 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 ordered to be effected in pursuance to Office Order dated 09.08.2018 (Annexure R-1) 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.