IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.2949 of 2021 Date of Decision: 02.06.2025 _____________________________________________________ Krishan Kumar …….Petitioner Versus State of H.P. & another … Respondents ____________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Digvijay Singh, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General _________________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition, petitioner has prayed for following main relief:- “It is most humbly prayed that the present may kindly be allowed with cost and writ of certiorari may be issued quashing and setting aside order No. IPH-EE-BGI-EA-1- DCRG (WWC)/2018-4521-25, dated 17.07.2019 (Annexure P-1), issued by respondent No.2 qua recovery of Rs. 1, 28, 987/- against the petitioner. A Writ of mandamus may further be issued directing to respondents to forthwith release the said amount to the petitioner alongwith interest.” 2. Precisely, the facts of the case as emerge from the record are that petitioner herein was appointed as daily wage 1Whether the reporters of the local papers may be allowed to see the judgment? 2 Beldar on 23.04.1984 and thereafter, his services were regularized as Water Works Clerk(WWC) on 01.04.1998. In afore capacity, petitioner retired on 28.02.2019 after attaining age of superannuation. Respondent No.2 issued a communication dated 16.05.2019, thereby informing petitioner that wrong fixation of pay was done earlier, as a result of which, an excess payment to the tune of Rs.1, 28, 987/-has been made to him(Annexure P-2). Upon receipt of aforesaid communication, petitioner immediately approached respondent No.2 not to deduct amount from his pension. However, respondent vide office order dated 17.07.2019, accorded the sanction to draw the retirement gratuity amounting to Rs. 3, 78, 504/- (Annexure P-1), whereby respondent No.2 had effected recovery/deduction of Rs. 1, 28, 987/- out of aforesaid sanctioned retirement gratuity. The reason stated by respondent No.2 for deduction of excess pay w.e.f. 01.04.2013 to 28.02.2019. Though, at first instance petitioner submitted representation dated 03.09.2019, whereby he requested the respondents to release the aforesaid illegally recovered amount(Annexure P-3), but since no heed was paid to the same, petitioner approached this Court in the instant proceedings, praying therein for the relief, as has been reproduced hereinabove. 3 3. Pursuant to notice issued in the instant proceedings, respondent/State has filed the reply, wherein facts as have been noticed hereinabove have been duly accepted. It is averred in the reply that category of Water Works Clerk has been clubbed in the common category of Junior Technicians in the respondent- Department and this common category of technicians were provided three tier pay structure in the ratio of 50:30:20 vide Notification No.FIN(PR)B)7)-1/1998 dated 1.9.1998. Aforesaid pay structure admissible from time to time with the revision of pay scale has been detailed out in Government Finance Notification dated 29.5.2014 (Annexure R-1). It is averred in the reply that though petitioner, who is in receipt of three tier pay structure was not entitled to the benefit of ACPs after completion of 4-9-14 years service, but inadvertently such benefit has been granted to him by the Superintending Engineer, IPH Circle Sundernagar (now Jal Shakti Circle, Sundernagar), which petitioner continued to receive till his retirement and such fact came to the fore when pension case was reviewed by the Accountant General, Himachal Pradesh while sanctioning his pension case. 4. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by learned counsel for the petitioner is that since petitioner is a Class-III 4 employee and amount alleged to be paid in excess was not received by him on account of misrepresentation, if any, rather on account of wrong fixation done by the Department, no amount could have been recovered from the gratuity of the petitioner. In support of his aforesaid contention, learned counsel for the petitioner placed reliance upon judgment passed by Hon'ble Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and other, AIR 2015 SC 696, which in turn came to be relied upon by Division Bench of this Court in CWPOA No.3145 of 2019, titled as S.S. Chaudhary vs. State of H.P. and others, decided on 24.03.2022. In the aforesaid judgment, following parameters came to be laid where recovery by the employer would be permissible/impermissible from the employee:- “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. 5 (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 be 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/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 guidelines 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.” 5. Apart from above, issue with regard to recovery from Class-III & IV employees after their retirement stands duly settled by the Hon'ble Supreme Court in Thomas Daniel Vs. State of 6 Kerala & Others, 2022 AIR (SC) 2153, decided on 02.05.2022 and in Civil Appeal No. 5527 of 2022, Madhya Pradesh Medical Officers Association vs. State of Madhya Pradesh and others, decided on 26.08.2022. 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while refuting aforesaid claim put forth on behalf of the petitioner, submitted that since it is not in dispute that amount otherwise recovered from the gratuity of the petitioner was not payable to the petitioner and such amount was credited in the bank account of the petitioner inadvertently, no illegality can be said to have been committed by the respondents, while recovering the amount paid in excess. He further submitted that petition is not maintainable on law as well as facts because Section 71 of CCS Pension Rules provide for recovery of government dues from the gratuity. He submitted that rule is quite explicit wherein it is mentioned that any outstanding dues as ascertained by the Head of Office shall be adjusted against the amount of retirement gratuity and expression “Dues” therein includes any kind of over payment of pay and allowances. However, learned Additional Advocate General was unable to dispute that in terms of judgment passed by Hon'ble Apex Court in Rafiq Masih case (supra), no recovery is admissible from Class-III employee, especially when there is 7 nothing on record to suggest that amount otherwise required to be recovered was received by the employee concerned on account of his/her misrepresentation. 7. I have heard learned counsel representing the parties and perused the record carefully. 8. True, it is that amount otherwise sought to be recovered was not payable to the petitioner because on account of his being in receipt of three tier pay structure, he otherwise could not have been benefited of ACPs after completion of 4-9-14 years service, which actually was accorded to him inadvertently, but once it is not in dispute that aforesaid amount was not received by the petitioner on account of misrepresentation, rather by misinterpreting the rules, respondent-Department itself committed the mistake, coupled with the fact that petitioner stands retired, no recovery, if any, is admissible in terms of judgment passed by Hon'ble Apex Court in Rafiq Masih case(supra). 9. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed and impugned Office order dated 17.07.2019 (Annexure P-1) is quashed and set-aside and respondents are directed to refund sum of Rs. 1, 28,987/- forthwith expeditiously, preferably within a 8 period of eight weeks, failing which, petitioner would be entitled to interest at the rate of 6% per annum from the date of recovery. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge June 02,2025 (shankar)