IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.6089 of 2023 Date of Decision: 2.7.2025 _______________________________________________________ Krishan Kumar Nag …….Petitioner Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Sat Prakash, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General. _______________________________________________________ Sandeep Sharma, Judge(oral): Petitioner herein is aggrieved of recovery notices dated 5.5.2015 and 1.10.2022 (Annexure P-3 and P-4), whereby sum of Rs. 95,848/-, is sought to be recovered from the petitioner on account of excess payment. 2. Petitioner herein, who was initially appointed as JBT on ad-hoc basis w.e.f. 1.6.1986 at GPS Bhalwara Education Block Cho- wari, District Chamba, Himachal Pradesh, was regularized against afore post on 1.6.1995. Subsequently, in the year 1998, vide order dated 16.10.1998, services of the petitioner came to be converted as 1Whether the reporters of the local papers may be allowed to see the judgment? 2 Physical Education Teacher (PET). On 31.1.2009, petitioner retired as PET on attaining the age of superannuation. After six years of his retirement, respondent No.4 issued recovery notice/letter dated 5.5.2015, thereby calling upon the petitioner to deposit sum of Rs. 95848/-, allegedly paid in excess for ad-hoc period services w.e.f. 1.6.1986 to 1.1.2006. Since aforesaid amount was not deposited by the petitioner, respondent No.4 again issued letter dated 23.10.2022, calling upon the petitioner to deposit the amount in Government Trea- sury as detailed herein above. 3. Precisely, the grouse of the petitioner, as has been hig- hlighted in the petition and further canvassed by Mr. Sat Prakash, learned counsel for the petitioner, is that since amount sought to be recovered was never received by the petitioner on account of fraud or mis-representation, if any, committed by him, rather same was paid to the petitioner by the respondents coupled with the fact that petitioner stands retired, no recovery is permissible especially in view of the law laid down by the Hon’ble Apex Court in State of Punjab and Ors. v. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334. 4. To the contrary, respondents have attempted to justify its action by stating that some irregular payment of pay allowance was made to the petitioner while he was rendering ad-hoc services, which subsequently, came to be pointed by the audit party and as such, no 3 illegality can be said to have been committed by the respondents while issuing the impugned recovery notices. 5. I have heard learned counsel for the parties and gone through the record. 6. Having carefully perused reply filed by the respondents, this Court is persuaded to agree with learned counsel for the peti- tioner that amount otherwise sought to be recovered was not received by the petitioner on account of his mis-representation or fraud, rather respondents themselves, made some payment in excess which cer- tainly they cannot be permitted to recover after retirement of the peti- tioner. 7. In the case at hand, petitioner retired from service in the year 2009 and first notice of recovery came to be issued after six years i.e. 2015 and it is not in dispute that pursuant to notice issued in the year 2015, no amount was deposited by the petitioner and there- after in the year 2022, respondents again issued recovery letter dated 1.10.2022. There is no explanation, if any, qua the delay in issuing recovery notices, which admittedly came to be issued to the petitioner after an inordinate delay of 7 and 13 years. 8. Hon’ble Apex Court in Rafiq Masih (supra) has categori- cally held hat recovery from Class-III and Class-IV employee is wholly impermissible, especially after retirement. Moreover, amount sought 4 to be recovered never came to be received by the petitioner on ac- count of mis-representation or fraud. Legal position as detailed herein above is not disputed by the learned Deputy Advocate General. Relevant para of the afore judgment reads as under: “12. 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 enti- tlement. 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 imper- missible 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 or- der 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 conclu- sion, that recovery if made from the employee, would be iniq- uitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to re- cover. 13. We are informed by the learned counsel representing the appel- lant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the im- pugned orders passed by the High Court of Punjab and Haryana 5 (quashing the order of recovery), shall be deemed to have been up- held, for the reasons recorded above.” 9. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed. Re- covery notices dated 5.5.2015 and 1.10.2022 (Annexure P-3 and P-4) are quashed and set-aside. In the afore terms, present petition is dis- posed of alongwith pending applications, if any. (Sandeep Sharma), Judge July 2, 2025 manjit