Allowed

Rakesh Kumar v. State of Hp and Others

Himachal Pradesh HC9 Jul 2024CWP/1868/2024

Case brief

AI extract

What is this about?

Recovery of Rs.1,40,367 for alleged wrong ACP fixation was ordered against a retired daily-wager-turned-regular Electrician after superannuation. Following the parameters in S.S. Chaudhary, the court held the recovery impermissible, quashed the recovery order and directed refund of any amount recovered.

What did the court decide?

Recovery order quashed and set aside; refund directed of any amount already recovered.

Rakesh Kumar Vs State of Hp and… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

¶2

CWP No. 1868 of 2024 Decided on: 09.07.2024

¶3

____________________________________________________ Rakesh Kumar ……….. petitioner Versus State of H.P. and others respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?¹

¶4

For the petitioner :	Mr.	Bhim Raj Sharma, Advocate.
For the respondents :	Mr. Adv No.	Raj Kumar Negi, Additional ocate General, for respondents 1 to 3/State.
:	Mr. for r	Tek Ram Sharma, Advocate, espondent No.4.
_______________________ Bipin Chander Negi, Judge	_____ (oral)	________________________

¶5

The instant petition has been filed for the grant of

¶6

following reliefs:-

¶7

(i) That the impugned recovery order as Annexure P-1 may kindly be quashed and set aside.

¶8

(ii) That the respondent may kindly be directed to refund the recovered amount of Rs.1,40,367/- to the petitioner.

¶9

Admittedly in the case at hand, the petitioner was

¶10

engaged as a daily waged Electrician under the PWD Division

¶11

Nurpur, District Ka

¶12

1 Whether the reporters of the local papers may be allowed to see the judgment?

¶13

¶14

ngra H.P in the year 1983. Subsequently on 01.01.1994, the petitioner was regularized. The petitioner thereafter was promoted as Electrician Grade-I in the year 2006. The petitioner superannuated on 30.04.2022 from the PWD Mechanical Division Dharamshala, District Kangra H.P.

¶15

Subsequent to the retirement of the petitioner vide office order dated 20.01.2023 appended alongwith the petition as Annexure P-1, a recovery on account of alleged wrong fixation of ACP amounting to Rs.1,40,367 was ordered.

¶16

This Court in CWPOA No. 3145 of 2019 titled S.S.

¶17

Chaudhary vs. State of H.P. & Ors, alongwith connected matters, on 24.03.2022 vide detailed order, laid down the following parameters where recovery by the employer would be permissible/impermissible from the employee. Paragraph 35 whereof reads as under:-

¶18

“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:-

¶19

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

¶20

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

¶21

(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.

¶22

¶23

(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.

¶24

(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.

¶25

(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class1/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.

¶26

(vii) Recovery from the employees belonging to ClassIII and Class-IV even on the basis of undertaking is impermissible.

¶27

(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."

¶28

The case of the petitioner is squarely covered under

¶29

Clause (i) and (ii). Accordingly, the instant petition is allowed and order of recovery made & sought to be made by the respondent from the petitioner is quashed and set aside.

¶30

The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs.

¶31

¶32

However, we make it clear that in case the recovery

¶33

or a part thereof is or has been effected by the employer, then, the employer shall be bound to refund the same to the employee.

¶34

Pending application(s), if any, also stand(s) disposed

¶35

¶36

(Bipin Chander Negi) Judge

¶37

July 09, 2024

¶38

tarun

Rakesh Kumar v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Rakesh Kumar v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Suresh Kumar Vs Tarawati

Kamla Devi Vs Land Acquisition Officer-Cum-Competent Authority Under NHAI and Another

M/s Palam Gas Vs State of H.P. and Anr.

Renuka Ji Dam Project and another Vs Balbir Singh and others

Renuka Ji Dam Project and another Vs Balbir Singh and others

Amin Chand Vs State of Hp and Others