IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.2262 of 2020 Decided on: 12th March, 2025 _________________________________________________________________ Prem Singh ....Petitioner Versus Municipal Corporation, Shimla & Anr …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioner: Mr. Jai Ram Sharma, Advocate. For the respondents: Mr. Mukul Sood, Advocate, for the respondents. Jyotsna Rewal Dua, Judge Heard and considered the case file. 2. Petitioner is serving as Class-IV employee in the respondent-Corporation. His grievance is to the office order dated 03.03.2020 (Annexure P-1), whereby, the respondent- Corporation informed him that:- Consequent upon regularization of petitioner’s services w.e.f. 01.04.2004, vide office order dated 08.11.2016, his pay was fixed in the pre- revised pay-scale of Rs. 4900-10680 + 1300 (G.P.) as ‘Mazdoor’; Benefits granted to the petitioner under new 1 Whether reporters of Local Papers may be allowed to see the judgment? yes - 2 - Assured Career Progression Scheme, on completion of required service was incorrectly released; On re-examination of the petitioner’s case, overpayment of Rs.47,283/- was detected on account of wrong fixation. Accordingly, petitioner was put to notice that Rs.47,283/- would be recovered @ Rs.3000/- per month from his salary w.e.f. April 2020. 3. Pursuant to the interim order passed in this writ petition on 10.07.2020, recovery of the amount has been stayed. 4. Learned counsel for the respondents, while defending the impugned order, submits that pay fixation carried out by the respondents was with the rider that the same was subject to audit verification. Therefore, on detection of mistake, excess payment made to the petitioner was liable to be recovered. 5. The Hon’ble Apex Court in the State of Punjab and others Vs. Rafiq Masih (White Washer) and others2, has held that recovery by the employer from the employees belonging to Class-III and Class-IV services, where payments have mistakenly been made by the employer in excess of their 2(2015) 4 SCC 334 (2) - 3 - entitlement, would be impermissible. The Division Bench of this Court relying upon the aforesaid judgment and on consideration of several other precedents in the timeline including Chandi Prasad Uniyal & Ors. Vs. State of Uttrakhand & Ors.3 has held as under in CWPOA No. 3145 of 2019 (S.S.Chaudhary Vs. State of H.P. and other and connected matters), decided on 24.03.2022:- “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 3(2012) 8 SCC 417 - 4 - 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, 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 gudielines 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.” 6. Case of the petitioner, who is holding Class-IV post, is covered under the aforesaid decision and the stipulations therein. It is not the fault of the petitioner that the respondents had fixed his pay in a particular pay scale at the relevant time i.e. in the year 2016. Respondents cannot be permitted to recover the amount of Rs.47,283/- from the petitioner. Being Class-IV employee, it would otherwise be unequitable and unjust to recover this amount from the petitioner. 7. In the given facts and circumstances of the case, - 5 - this writ petition is allowed. Recovery order dated 03.03.2020 (Annexure P-1), passed by the respondents, is quashed and set aside. Pending miscellaneous application(s), if any, also stand disposed of. Jyotsna Rewal Dua Judge March 12, 2025 R.Atal