Union of India and Ors. Vs Rajeev Kumar and Anr.

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2025:HHC:19411

IN THE HIGH COURT OF	HIMACHAL PRADESH, SHIMLA . LP A No. 90 of 2021 a/w LPA Nos. 91 to 93 and 186 of 2021 Decided on: 20.06.2025
1. LPA No.90 of 2021
Union of India & Ors.	.....Appellants
	Versus
Pramod Kumar & Anr.	...Respondents
2. LPA No.91 of 2021
Union of India & Ors.	.....Appellants
	Versus
R.K. Meena & Anr.	...Respondents
3.LPA No.92 of 2021
Union of India & Ors.	.....Appellants
	Versus
R.S.S Yadav and Anr.	...Respondents
4.LPA No.93 of 2021 Union of India & Ors.	.....Appellants
	Versus
Rajeev Kumar and Anr.	...Respondents
5.LPA No.186 of 2021 Union of India & Ors.	.....Appellants
	Versus
J.S. Tomar and Anr.	...Respondents
Coram
*Hon’ble Mr. Justice G.*	*S. Sandhawalia, Chief Justice.*
*Hon’ble Mr. Justice Ra*	*njan Sharma, Judge.*

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Whether approved for reporting?¹

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For the appellants: Mr. Balram Sharma, DSGI with Mr. Rajeev Sharma, Advocate. For the respondents: Mr. Hoshiar Kaushal, Advocate, for proposed respondents No.1(a) to 1(d) in LPA No.90/2021. Mr. Neeraj Gupta, Senior Advocate with Mr. Ajit Pal Singh Jaswal, Advocate, for the respondent-NTPC, in all the appeals.

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G.S. Sandhawalia, Chief Justice (Oral)

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The present appeals by the UOI are directed against the orders of the learned Single Judge who allowed five writ petitions on 27.08.2019 and quashed the recovery notice dated 05.01.2015 which was on the issue of Transport Allowance paid to the petitioners.

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Reliance was placed by the learned Single Judge upon the celebrated judgment of the Apex Court in the State of Punjab and Others vs. Rafiq Masih (White Washer) and

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others, (2015) 4 SCC 334, to grant the said relief.

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Counsel for the Union of India has strenuously sought to distinguish the said judgment by referring to the fact 1 Whether the reporters of Local Papers may be allowed to see the judgment?

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that the recovery was being effected within a period of five years from the date it was paid while referring to the impugned order. It is submitted that the recovery amount pertained to the periods 01.04.2010 to 30.04.2013 (Sh. Pramod Kumar, Sr. No.447), 01.05.2010 to 30.04.2013 (Sh. R.K. Mena, Sr. No.448), 01.09.2009 to 30.04.2013 (Sh. R.S.S Yadav, Sr. No.348), 01.08.2010 to 30.04.2013 (Sh. Rajeev Kumar, Sr. No.349) and 01.08.2010 to 30.04.2013 (Sh. J.S. Tomar, Sr. No.347) (Annexure -8) and therefore it was not impermissible in view of the judgment in Rafiq Masih’s case (supra) that recovery could be effected within a period of five years.

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We are not convinced with the said argument. Learned Single Judge had dwelled deep into the issue regarding the fact that the petitioners were Class III /Class-C employees who had been working as Constables in Central Industrial Security Force and were paid the monthly Transport Allowance. However, since they were deployed with the NTPC/respondent No.5 at Dadri, the dispute had arisen that they were being transported to their place of duty as such by

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the vehicles provided by the said respondent and therefore would not be entitled for the payment of Transport Allowance as such.

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In such circumstances, the Communication dated 05.01.2015 was issued by the Deputy Commandant/DDO, CISF Unit NTPC Dadri, for the recovery of the said amount on the ground that the NTPC had with-held the said amounts, since they had provided the vehicles for attending duty from their residence to the duty place and back. It is also important to notice that the Union of India itself had placed on record letter dated 03.01.2010 (Annexure 02) which had also been referred by the learned Single Judge.

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Apparently, the vehicles as such which have been provided, did not even have any seating as such and were goods carrying vehicles in which the personnels were being taken to duty and it was rather projected by the Commandant that the personnel were entitled in view of the recommendations of the 6^th Pay Commission. It was also further mentioned that the CISF personnel from Sub Inspector

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and below ranks were not being provided any vehicle and only Inspectors, Assistant Commandants and Commandants were being provided independent vehicles. It is also relevant to notice that in Rafiq Masih’s case (supra) it has also been held that if payments had been made over a long duration of time, it would be iniquitous to make any recovery. Paragraph 13 of the said judgment reads as under:-

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“First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir’s case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer

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to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.”

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As noticed above, the payments had been made over a period ranging from 3 years to 4 years which would be clear from the recovery orders from the year 2008 to 2013 and therefore paragraph 13 quoted supra would also come into play apart from the fact that it is a specific and pleaded case that the petitioners are Class III (Group C) employees being Constables and therefore would also be covered under Clause (i) of the Principles laid down in Rafiq Masih’s case (supra) whereby recovery from the employees belonging to such category is not permissible.

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In such circumstances, we are of the considered opinion that the judgment of the learned Single Judge does not suffer from any illegality or irregularity and the reliance was placed upon the binding precedent of the Apex Court. The judgment in High Court of Punjab and Haryana and Ors. vs. Jagdev Singh, (2016) 14 SCC 267, was also rightly

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distinguished since in the said case, the employee was a judicial officer who had given an undertaking while opting for revised pay scales that he would refund the excess amount. There is no such similarity that the petitioners who were paid the Transport Allowance had given any such undertaking and rather had been paid by their employer-Union of India and it was only when the bills as such were not cleared by respondent No.5 for the Transport Allowance, their officers sought to recover the said amount.

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It is also to be noticed that recovery order as such was passed without even resorting to the principles of natural justice and they were given no opportunity as such and not put to notice that the said action was likely to be taken against them so that they could have represented against it. Rather the said order was passed at their back on the basis of the objection of respondent No.5 and they were forced to approach the Writ Court.

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It is not the case of the Union of India that there is any fraud or misrepresentation on the part of the employees

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as such, while drawing the said amount. As noticed above, it is only on account of non-payment by respondent No.5 that the issue arose and rather their office by communication dated 05.01.2015 had supported their claim.

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In such circumstances, having received the said

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amount over a period of more than three years, it would be iniquitous as such to direct recovery from the petitioners who were posted as Constables and who were doing their duties as such.

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In such circumstances, no case is made out to interfere in the well reasoned order passed by the learned Single Judge. Resultantly, all the appeals are dismissed.

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Pending application(s), if any, shall also stand disposed of.

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Copy of this order be also placed on the record of other connected cases.

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( G.S. Sandhawalia ) Chief Justice

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June 20, 2025 ( Ranjan Sharma ) (ankit) Judge

Union of India and Ors. v. Rajeev Kumar and Anr.

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Union of India and Ors. v. Rajeev Kumar and Anr.

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