1 2025:HHC:27080 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1689 of 2020 Date of decision: 06.08.2025 _______________________________________________________ State of HP & another …..Petitioners Versus Kamli Devi …Respondent _______________________________________________________ Coram: The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 _____________________________________________________ For the Petitioners: Mr. Pranay Pratap Singh, Deputy Advocate General. bj For the Respondent: Ms. Kiran Verma, Advocate. G.S. Sandhawalia , Chief Justice (Oral) Challenge in the present Writ Petition is to the order dated 09.05.2016, passed by the erstwhile State Administrative Tribunal (for short ‘the Tribunal’) in Original Application No. 4590 of 2015, Kamli Devi Vs. State of Himachal Pradesh & another. wherein the decision to recover a sum of Rs. 3,67,467/- vide order dated 23.05.2015 (Annexure A-5) 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 before the Tribunal and (Annexure P-VII in the Writ File) has been quashed and set aside. 2. A perusal of the aforesaid order passed by the Executive Engineer, IPH Shimla Rural Division at Sunni, Distt Shimla, would go on to show that the recovery of Rs.3,67,467/- was to be done from deceased Tilak Ram, who was a Government Servant (Cleaner), on account of 1/3rd amount of the award passed by the Motor Accident Claims Tribunal-II Mandi, Camp at Karsog on 8th August, 2011 in Claim Petition No. 49 of 2005, Uma Dutt & others Versus State of Himachal Pradesh and Claim Petition No. 45 of 2005, Ram Dai Versus State of Himachal Pradesh. Resultantly, the recovery was ordered to be effected from DCRG and leave encashment or any other dues of deceased Tilak Ram. 3. It is important to notice that Tilak Ram had expired on 30.03.2015. The order dated 15.09.2014 (Annexure P-VI annexed to the Original Application), whereby the installments were fixed at Rs. 5,000/- per month from the monthly salary of Tilak Ram to recover 3 the aforesaid amount and which was passed during his life time, has also been quashed by the Tribunal. 4. Counsel for the State submits that during his life time, the Government employee had given an undertaking on 15.07.2014 that the amount be recovered from his monthly salary, as he is unable to pay the same, and therefore, it would not as such lie in the mouth of widow-legal representative as such to challenge the said order before the Tribunal, once the employee has chosen to give his consent to pay the amount. 5. We are unable to agree with the said proposition since the legal remedy as such of the employee could not have been taken away on a mere undertaking given by him in the absence of any Departmental proceedings, whereby the recovery was to be effected of a huge amount. 6. As noticed above, the recovery could not have been effected from the legal representative-wife of deceased Tilak Ram, merely on account of an undertaking, who was a Class-IV employee. 4 7. The Tribunal while allowing the Original Application, has noticed that the recovery was to be effected on account of the fact that two persons had died in the accident and the Government employee- Tilak Ram has been fastened with the liability jointly and severally since he was Cleaner as such. Apparently, the reason which weighed with the Tribunal to quash the said order is based on the judgment passed by the Coordinate Bench in Kamlesh Saxena & others Vs. State of Himachal Pradesh & others, ILR 1985 HP 605, wherein it was held that the ascertaining and recovery of Government dues, other than those covered, by the Pension Rules, have to be done by means of a properly constituted suit. A subsequent judgment passed by this Court in Shanti Devi and others Versus State of Himachal Pradesh and others, 2011 (1) Shimla LC 79, has held that recovery of Rs.26,230/- on account of DCRG of the husband of the writ petitioner could not have been done without any departmental proceedings initiated or any civil suit having been filed, which was also relied upon. 5 8. The Tribunal also relied upon sub-Rule 3 of Rule 39 of Central Civil Services (Leave) Rules, that withholding can only be done if the disciplinary proceedings are pending against him and if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him and on conclusion of the same, he will become eligible to the amount so withheld after adjustment of Government dues, if any. In such circumstances, the Tribunal has passed the order. 9. It is also a matter of record that the employee was acquitted on 29.08.2006 by the Sub Divisional Judicial Magistrate, Karsog, District Mandi, by coming to the conclusion that the said employee as such was not guilty as it had not been clarified by the prosecution as to how the accident took place and who was driving the vehicle i.e. jeep bearing No. HP-07A- 2083 at the relevant point of time. 10. In such circumstances, it was incumbent as such upon the respondent as such to have proceeded against in the departmental inquiry against the 6 employee in view of the accident which had taken place way back on 14.05.2005. Having failed to do so, and only on account of the liability fastened by the MACT on 08.08.2011 and modified by this Court on 12.12.2013, apparently, the undertaking was taken on 15.07.2014 from a Class-IV employee, without resorting to the procedure prescribed . 11. In such circumstances, the rights as such of the legal representative have been adversely affected and right to receive the retiral dues have been been thus protected by the Tribunal. It is also a matter of record that the amount now already stands disbursed to the claimant. 12. Accordingly, keeping in view the above, we do not find any infirmity with the order passed by the Tribunal, which does not warrant any interference, under Article 226 of the Constitution. Accordingly, the Writ Petition is dismissed and the order passed by Tribunal is upheld. 7 13. Pending application(s), if any, also stands disposed of. (G.S. Sandhawalia) Chief Justice. August 06, 2025 (Ranjan Sharma) (hemlata) Judge.