Point of Law : 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.

ORDER :

In the instant petition, petitioner has prayed for the following substantive relief(s):-

“(i) That the present O.A. may kindly be allowed and order No. IPH-EE-BGI-EA-1-DCRG/2017-4294-99, dated 27.06.2017 (Annexure A-3), issued by respondent No.2 may kindly be quashed and set aside qua recovery of Rs.2,08,520/- against applicant and further the respondents may be directed to release gratuity amount to the applicant forthwith alongwith interest.”

2. The case of the petitioner is that he retired as Pump Operator on 28.02.2017 from the office of respondent No.2. After undue delay, the retirement gratuity of petitioner was finally assessed on 02.05.2017 at Rs.4,10,435/-. However, instead of disbursement of retirement gratuity at the earliest, respondent No. 2, vide office order dated 27.06.2017 effected recovery of Rs.2,08,520/- from the sanctioned amount of retirement gratuity. The recovery was effected on the pretext of payment of excess salary to the petitioner for the period 01.01.2013 to 28.02.2017.

3. Petitioner has assailed the aforesaid recovery on the ground that the order, Annexure A-3, was vague without specifying the reasons for recovery. Petitioner was not afforded any opportunity of being heard before effecting the recovery. Petitioner further denied having received excess salary.

4. In reply, respondents No. 1 and 2 tried to justify the recovery on the ground that the category of Technician including Pump Operator were not entitled to the benefits of ACP Scheme as they were granted three tier pay structure. It is also contended that the pay fixation order in itself does not carry any right, as such order is always carrying a note that fixation is subject to approval of Audit/Head Office.

5. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

6. It is not in dispute that petitioner, at the time of his retirement, held Class-III post under respondents No. 1 and 2. It is not the case of the respondents that the excess payment was received by the petitioner by misrepresentation of fact or fraud.

7. A Division Bench of this Court vide judgment dated 24.03.2022 in a bunch of matters with CWPOA No. 3145 of 2019, titled as S.S. Chaudhary Vs. State of H.P & others, as a lead case has held as under:-

“34. It was after taking into consideration the entire law on the subject, the Hon'ble Supreme Court in Rafiq Masih (2) laid down guidelines relating to recovery in para-18 of its judgment (supra). Thus, in such circumstances, it cannot be said that Rafiq Masih (ii) does not lay down correct 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 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,