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Nirmla Devi v. Hpsebl and Others

Recovery of excess payments – family pension

Himachal Pradesh HC11 Jul 2024CWP/292/2023

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Case brief

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What is this about?

Excess payment recovery; family pension recovery from widow; HPSEBL; Himachal Pradesh State Electricity Board; Class-III/Class-IV employees; retired employees; undertaking given by employee; Rafiq Masih principles; S.S. Chaudhary CWPOA 3145/2019 para 35 parameters; Jagdev Singh (2016) 14 SCC 267; quashing of recovery order; refund of recovered amount; CWP 292 of 2023; High Court of Himachal Pradesh; Bipin Chander Negi.

What did the court decide?

Instant petition allowed; order of recovery made and sought to be made by the respondent from the petitioner quashed and set aside; employer bound to refund any recovery or part thereof effected; parties left to bear their own costs; pending applications disposed of. ¶22

Nirmla Devi Vs Hpsebl and Others — Himachal Pradesh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the recovery of excess family pension sought from the petitioner by order dated 22.12.2022 is permissible in law. +1 more

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Court's answer

The petitioner's case is squarely covered under clauses (i) and (vii) of paragraph 35 of the parameters laid down in S.S. Chaudhary; accordingly the petition is allowed and the order of recovery made and sought to be made by the respondent from the petitioner is quashed and set aside.

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Ratio / Principle

The respondents' contention that recovery is permissible in view of the undertaking voluntarily given, coupled with reliance on Jagdev Singh, is clearly misconceived: the judgment in Jagdev Singh's case was considered in para 21 of S.S. Chaudhary, and the principles enumerated in para 35 were laid down only after taking the ratio of that judgment into consideration.

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Key takeaways

In case the recovery or a part thereof is or has been effected by the employer, the employer shall be bound to refund the same to the employee.ratio¶35

Detailed headnote1 paragraphs

Recovery of excess payments — family pension — Widow of deceased HPSEBL employee (husband superannuated 30.11.2005, died 19.12.2005) challenged order of recovery dated 22.12.2022 initiated after discrepancy in family pension was discovered in June 2022. Held: petitioner's case squarely covered under clauses (i) and (vii) of para 35 of the parameters laid down in S.S. Chaudhary v. State of H.P. (CWPOA No. 3145 of 2019); petition allowed and recovery order quashed and set aside. Respondents' contention that recovery was permissible on the strength of undertaking voluntarily given, read with High Court of Punjab and Haryana v. Jagdev Singh (2016) 14 SCC 267, held misconceived — Jagdev Singh having been considered in para 21 of S.S. Chaudhary before the para 35 principles were laid down. Employer bound to refund any recovery effected; parties to bear own costs; pending applications disposed of.

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP No. 292 of 2023 Decided on: 11.07.2024

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_________________________________________ Nirmala Devi …… Versus	___________ ….. petitioner
HPSEBL and others	respondents
_________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?¹	___________

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For the petitioner :	Mr. Adv	De ocate.	vender K. Sharma
For the respondents :	Mr. resp	Anil onde	Kumar, Advocate, for nts No. 1 and 2.
:	Mr. for r	Sunil espon	Mohan Goel, Advocate, dents No. 3 and 4.
_______________________ Bipin Chander Negi, Judge	_____ (oral)	_____	___________________

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Aggrieved by the order of recovery dated 22.12.2022, the petitioner has preferred the instant petition. Admittedly, the husband of the petitioner was working as a Additional Foreman-cum-Driver with the respondent-Board. He had superannuated on 30.11.2005 from the office of Senior Executive Engineer, Electrical Division HPSEBl. He had died on 19.12.2005. Subsequent thereto, the petitioner was receiving family pension. The discrepancy with respect to the family pension payable to the petitioner was discovered in the month of June, 2022. It is thereafter that the impugned recovery was sought to be initiated in terms of letter dated 22.12.2022 i.e.

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Annexure P-1.

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

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

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“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:-

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

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

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(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.

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(i) 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.

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(ii) 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.

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(iii) Recovery on the basis of undertaking from the employees essentially has to be confined to Class- 1/Group-A and Class-II/Group B, but even then, the Court may be required to see

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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.

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

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(v) 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."

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The case of the petitioner is squarely covered under

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Clause (i) and (vii). 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.

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The respondents would contend that the recovery is permissible in view of undertaking given voluntarily by the petitioner, coupled with the judgment rendered by the Hon'ble Supreme Court in High Court of Punjab and Haryana and Ors.

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vs. Jagdev Singh, (2016) 14 SCC 267.

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This contention is clearly misconceived, in view of

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the judgment rendered by this Bench in S.S. Chaudhary's case (Supra). The judgment in Jagdev Singh's case (supra) sought to be relied upon by learned counsel for the respondent has been considered in para 21 and it is only after taking into consideration

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the ratio laid down in the said judgment that the principles as

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enumerated in para 35 of the judgment (quoted above) have been

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laid down.

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