Point of Law: Where court arrives at 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 employer's right to recover.

ORDER :

1. Heard.

2. Petitioners approached the erstwhile Himachal Pradesh State Administrative Tribunal by filing O.A. No. 208 of 2016, praying for following substantive relief:-

“1.That this original application may kindly be allowed and impugned show cause notices of recovery issued by the respondent department contained in Annexure A-1 may kindly be quashed and set aside.”

After abolition of H.P. State Administrative Tribunal, Original Application of the petitioners came to be transferred to this Court and was registered as CWPOA No. 6602 of 2019.

3. Brief facts necessary for adjudication of the petition are that at the time of filing of the Original Application, petitioners were working in the department of Irrigation and Public Health, Government of H.P. on different Class-III posts like Pump Operator, Work Inspector, Electrician and Fitter etc. Petitioners were allowed the benefit of Assured Career Progression Scheme. However, subsequent to grant of benefit of A.C.P.S., respondent No. 3 issued show cause notices dated 07.11.2015 to the petitioners seeking their reply(ies) as to why the grant of benefit of A.C.P.S. to them, be not withdrawn, their respective salaries re-fixed and excess payment be not recovered from them in equal installments. Petitioners submitted their reply(ies), however, apprehending the recovery to be effected from them on the basis of show cause notices dated 07.11.2015, petitioners approached the State Administrative Tribunal by way of Original Application No. 208 of 2016, as noticed above.

4. Respondents have contested the claim of the petitioners on the ground that they were not entitled for the benefit of A.C.P.S. and respondents were not estopped or precluded from effecting the recoveries of wrongfully disbursed amount to the petitioners. It has been submitted that pay fixation order in itself does not carry any right, as such fixation order is always carrying a note that fixation is subject to approval of Audit/Head Office.

5. It is not in dispute that petitioners were serving the respondents-Department as Class-III employees at the time of issuance of show cause notices dated 07.11.2015 to them. It is also not the case of the respondents that the excess amount was received by the petitioners by misrepresentation of facts or fraud.

6. 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