IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWPOA No. 6337 of 2020 Decided on: 28.11.2023 ________________________________________________________ Shakuntla Devi ……….. Petitioners Versus .

State of HP & Ors. …Respondents ________________________________________________________

Coram:

Hon'ble Mr. Justice Vivek Singh Thakur, Judge Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? ¹ For the applicant : S h. Rakesh Kumar Dogra, Advocate. For the respondents : Mr. Rajesh Mandhotra, Additional rAdvocate General.

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Vivek Singh Thakur, Judge (oral)

Petitioner has approached this Court against the impugned order dated 21.06.2018, Annexure A-1, whereby amount paid to him in excess, on account of bunching increments, has been proposed to be recovered.

g2. Admittedly, petitioner is a Class-III employee. It is not the case of the respondents that the amount, alleged to have been paid to the petitioner in excess, was paid on account of his misrepresentation or any other kind of omission or commission on his part.

3. The issue involved in the present case qua recovery is squarely covered by the law laid down by the Hon’ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) etc. (2015) 4 Supreme Court Cases 334, wherein it has been held as under:

1 Whether the reporters of the local papers may be allowed to see the judgment?

“18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, 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 f rom retired employees, or employees who are dute to retire within one year, of the order of recoverry.

u(iii) Recovery from employees, when the excess payment has been made for a period in excess of five oyears, 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 H extent, as would far outweigh the equitable balance of the employer's right to recover.”

4. In the given facts and circumstances of the case, present lis is covered by Clause (i) of Para 18 of aforesaid judgment in Rafiq Masih case and, thus, recovery proposed by the respondents from the petitioner is impermissible under law.

5. Accordingly, recovery notice dated 21.06.2018 (Annexure A-1) is quashed and set aside.

Petition is allowed and disposed of in aforesaid terms alongwith pending applications, if any.

(Vivek Singh Thakur)

Judge (Sandeep Sharma)

Judge November 23, 2023 sunil o