2026:HHC:25770 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.4321 of 2020 a/w CWPOA No.4335 of 2020 Decided on: 30 th June, 2026 ________________________________________________________________________________________________________________________________________________________________________________ 1. CWPOA No.4321 of 2020 Roop Lal ...Petitioner Versus State of Himachal Pradesh and Anr. ...Respondents ___________________________________________________________________________________________________________________________________________________________________________________ 2. CWPOA No.4335 of 2020 Paras Ram ...Petitioner Versus State of Himachal Pradesh and Anr. ...Respondents _____________________________________________________________________________________________________________________________________________________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner(s): Mr. Amrick Singh, Advocate, for the petitioner(s), in both the petitions. For the respondents: Mr. Sumit Sharma, Deputy Advocate General. Jiya Lal Bhardwaj, Judge (Oral) Both these petitions are being disposed of by this common judgment since the questions of law and facts are same. For adjudication of the dispute, the facts of CWPOA 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 No.4321 of 2020 are being taken up. 2. As per the pleadings, the petitioner was appointed in the year 1981 to the post of Rigman (Class-III, Non-Gazetted) in the respondent-Department and joined his duties on 01.09.1981 at Shimla i.e. permanent Headquarter of the Geological Wing of the respondent-Department. He retired from service on 31.12.2016 from the post of Assistant Driller (Class- III, Non-Gazetted), on attaining the age of superannuation from his last posting station at Gumma, Tehsil Chopal, District, Shimla, H.P. (for short “Gumma”). During his service, he remained posted in different drilling units from time to time as per the requirement for exploration works of minerals in the State of Himachal Pradesh. It has been averred that an amount of Rs.1,25,775/- has been withheld by the respondent- Department in pursuance of the objection raised by the Audit party that overpayment of allowances of Rs.23.45 lakhs had been made to the employees, who were deployed at Gumma for M/s India Cements. No show cause notice was issued to the 3 petitioner while withholding/deducting the amount of Rs.1,25,775/- from the gratuity, which action is pleaded to be against the principles of natural justice. The petitioner was paid the allowances by the respondent-Department to which he was entitled to. The said amount was paid to him by the respondent- Department for more than 10 years and now the respondent- Department has withheld the amount on account of overpayment of allowances. The overpayment of the allowances has been worked out due to non-fixation of the headquarters of the drilling staff and since no enquiry/disciplinary proceedings whatsoever was pending against the petitioner, the said amount could not have been withheld. 3. It has also been averred that in case any over payment has been made to the Class-III and Class-IV employees, the same cannot be recovered from them. The action on the part of the respondent-Department to withhold the amount is violative of Articles 14, 16, 19 and 21 of the Constitution of India. 4 4. The respondents filed reply to the petition and averred that the petitioner was appointed in the year 1981 and joined his duties on 01.09.1981 at Shimla and now the petitioner stands retired on 31.12.2016 from the post of Assistant Driller (Class-III, Non-Gazetted), on attaining the age of superannuation from his last posting station at Gumma. It has further been averred that as per Rule 73(1) of Supplementary Rules (Travelling Allowance Portion), the officers/officials posted out of permanent headquarter are eligible for TA/DA and other allowances for a period of 180 days as per the rates prevalent in permanent headquarter and thereafter no TA/DA and other allowances are admissible to them as per the rates prevalent in permanent headquarter, rather they are entitled only for the allowances as per the rates fixed by the Government for that particular place/places of posting. It has also been averred that the petitioner and other similar situate persons were posted out of permanent headquarter i.e. in the Drilling Unit of the Geological Wing of the respondent-Department at Gumma, for 5 exploration works of minerals. Since the petitioner worked at his place of posting for more than 180 days, as per Rule 73(1) mentioned above, the TA/DA was discontinued after 180 days but other allowances i.e. capital allowance, compensatory allowance, house rent allowance etc. were inadvertently paid to him as per the rates prevalent in permanent headquarter i.e. Shimla. 5. It has further been averred that while going through the audit/test check of the accounts of the office of the State Geologist, Geological Wing, Department of Industries, Shimla, H.P., for the period from 4/2014 to 11/2015, the Audit Party had noticed that two Nos. units/machines were deployed at Gumma, for M/s India Cements and one at Dhara Badu area in District Mandi for M/s ACC Ltd. along with staff for investigation work. It was revealed that the staff engaged with above units were paid TA/DA for 180 days and thereafter same was discontinued. Thereafter, they were paid TA/DA from new headquarter to old headquarter (i.e. new headquarter to 6 Shimla). However, allowances such as capital allowance, HCA and HRA were being paid to them at the rates stationed at Shimla, which was irregular and in contravention of the Rules ibid. It has also been averred that in pursuance of the observations made by the Audit Party, the respondent- Department immediately issued instructions vide order dated 14.03.2016, whereby temporary headquarter of the staff working in the Drilling Units, who had completed more than 180 days in their particular station, were fixed at their actual place of working, w.e.f. 01.01.2016 onwards. It has been averred that the matter regarding overpayment was taken up with the State Government, vide letter dated 31.03.2017, so as to settle the matter. However, the Government vide letter dated 22.06.2017, intimated that the matter was taken up with the Finance Department and the Finance Department had rejected the proposal of the respondent-Department. Accordingly, the respondent-Department withheld a sum of Rs.1,25,775/- on account of overpayment of allowances for the period from 7 2/2005 to 12/2015 from the retiral benefits of the petitioner. Similar is the stand in another petition, where the withheld amount is Rs.87,150/- 6. In CWPOA No.4335/2020, the petitioner was appointed in the year 1981 on daily wage basis and retired on 31.08.2017 from the post of Drilling Assistant (Class-III, Non- Gazetted). In his case a sum of Rs.87,150/- has been withheld on account of overpayment of allowances for the period from 3/2005 to 12/2015 7. I have heard the learned counsel for the parties and also perused the record carefully. 8. It is not in dispute that the petitioners did not make any misrepresentation or played fraud while receiving the amount, which was not admissible to them under Rule 73(1) of Supplementary Rules (Travelling Allowance Portion). It is also not in dispute that the petitioners had retired from a post, which is Class-III post. 9. From the reply filed by the respondents, it is clear 8 that the amount of allowances paid to the petitioners was from the period 2005 to 2015 and thus the overpayment of the amount, which is withheld, was paid to the petitioners during the last more than 10 years and that too, before their retirement. 10. The Hon’ble Supreme Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, has held that in case there is no misrepresentation on the part of the employees while receiving amount, which was not permissible under law, the recovery cannot be effected from such employees, who belong to Class-III and Class-IV service. Further, it has also been held that the recovery from employees, when the excess payment has been made for a period in excess of 5 years, before the order of recovery is issued, the same cannot be done. 11. In the present case, the petitioners were paid the capital allowance, HCA and HRA from the year 2005 to 2015and the same came to be noticed only in the year 2016, when the 9 inspection report was submitted by the Audit Party while conducting the audit for the period from 4/2014 to 11/2015. Since the petitioners did not misrepresent to receive the amount, and further they being Class-III employees and retired long back and also the amount paid was for a period in excess of five years, no recovery can be made from them and the amount withheld illegally deserves to be refunded to them. 12. A similar issue had come up for consideration before a coordinate Bench of this Court in CWPOA No.4326 of 2020, titled, Dharm Pal Sharma vs. State of Himachal Pradesh and another, and it after considering the judgment of the Hon’ble Supreme Court in Rafiq Masih’s case (supra) and other judgments held that the State Authorities cannot withhold or recover the amount. 13. Since a coordinate Bench has already taken a view, which is strictly in consonance with the law propounded by the Hon’ble Supreme Court, in the aforementioned case, the impugned action on the part of the respondents in withholding 10 an amount of Rs.1,25,775/- in CWPOA No.4321 of 2020 and Rs.87,150/- in CWPOA No.4335 of 2020, is without any authority of law and the petitioners are entitled to receive the same along with interest @6% per annum from the due date till realization. 14. Consequently, the petitions are allowed and the respondents are directed to refund the amount illegally withheld by them to the petitioners, along with interest @6% per annum from the due date till payment. In case the amount has been kept in Fixed Deposit Receipts (FDRs), the same shall be paid to the petitioners within a period of two months from the date of receipt of copy of the judgment. 15. The petitions are accordingly disposed of. No order as to costs. Pending application(s), if any, shall also stand disposed of. 30 th June, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge