Sarla Nag vs State Of H. P. & Ors

Tarlok Singh Chauhan, J

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

“(i) That the impugned order, Annexure A-2, dated 29.03.2019 may kindly be quashed and set aside, in the interest of justice.”

Admittedly, the recoveries sought to be effected vide order dated 29.03.2019, are much after the petitioner retired from service in the year 2016.

Obviously, such course is not open to the respondents, as the relationship of master and servant had ceased after retirement, except for a limited purpose.

That apart, the ratio of the judgment passed by this Court in S.S. Chaudhary vs. State of H.P. & ors., (2022) 2 HLR 954 is also squarely applicable, wherein after taking into consideration the entire law on the subject, this Court laid down the following parameters regarding recovery, which would be impressible in law:-

“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 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 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.”

The case of the petitioner is squarely covered under clause 35 (ii) of the aforesaid judgment.

Consequently, the instant petition is allowed and the recoveries sought to be effected from the petitioner vide Annexure A-2 are ordered to be quashed and set aside and the amount, if any, recovered from the petitioner, is ordered to be refunded to her.