Union of India and Ors. v. Heera Lal Kundra

1. The respondent superannuated as Chief Ticket Inspector in the office of the Railways on 31 August 2016. He would ordinarily have been held entitled to pension by fixation of his basic pay on the date of his retirement as ₹ 66,000/- per month. However, on the ground that there had been an erroneous excess payment made to the respondent ten years prior thereto, the basic pay of the respondent was, on the date of his retirement, fixed as ₹ 64,100/- for the purposes of computation of his retiral dues.

2. Aggrieved thereby, the respondent approached the Central Administrative Tribunal[1] by way of OA 4202/2018, challenging both the refixation of his pay as well as the recoveries that were being effected from his pensionary benefits.

3. The Tribunal has, however, by the judgment under challenge, rendered on 4 April 2024, only dealt with the aspect of recovery. The Tribunal has held that, in view of the law laid down by the Supreme Court in para 18 of the decision in State of Punjab v Rafiq Masih[2], the recovery from the respondent was unjustified.

4. We have heard Mr. Pandey, learned Counsel for the petitioners, at length.

5. Apropos the judgment of the Supreme Court in Rafiq Masih, Mr. Pandey has sought to place reliance on a decision of a Division Bench of this Court in Sanjay Sharma v State of Punjab[3].

6. He submits that, in Sanjay Sharma, Rafiq Masih was specifically cited and, despite reliance having been placed on Rafiq Masih, this Court upheld the recoveries which were made from the appellant in that case.

7. We have seen the decision in Sanjay Sharma, which is clearly distinguishable. In that case, the Division Bench of this Court has specifically observed, in paras 27 and 28, as under: 1 “the learned Tribunal”, hereinafter

“27. The most important aspect of the case is that he appellant, who was holding the post of General Manager at the relevant point of time, was also the Drawing and Disbursing Officer for himself. He, in fact, misused his official position. Thus, he has misused his official position knowing fully well that at no point of time higher pay scale was granted to him while promoting him by way of stopgap arrangement. In the appointment order it was categorically mentioned that he will be entitled for pay scale of Rs. 7,880/- - Rs. 13,500/-.

28. Therefore, in the considered opinion of this Court, the action of the respondents in recovering the amount is justified. Otherwise also, after creation of temporary post of General Manager, the appellant was entitled for the pay scale mentioned in the order creating temporary post dated 21.05.2002. The order dated 21.05.2002 makes it very clear that the temporary was being created in the pay scale of Rs. 7,880/- 13,500/- and the appellant, in fact, was appointed against this temporary post carrying the aforesaid pay scale. In the considered opinion of this Court, the respondents were justified in recovering the excess amount paid to the appellant.”

8. As such, Sanjay Sharma was a case in which excess financial benefits have been availed by the appellant Sanjay Sharma by fraud, as he was the Drawing and Disbursing Officer who disbursed, to himself, the excess payment, in full knowledge of the fact that he was not entitled to the said payment. It is in this context that the Division Bench had gone on, in para 30, to note that, as the appellant before it had full knowledge that he was not entitled to excess payment which was drawn by him, he could not plead Rafiq Masih in his favour.

9. Rafiq Masih is clearly not applicable where the excess payment has been availed by the officer himself by fraud, or where the officer is himself complicit in drawing excess payment. This aspect is noted even in Rafiq Masih itself.

10. The only circumstance in which the Supreme Court has subsequently held the principle in Rafiq Masih not to be applicable is contained in paras 10 and 11 of High Court of Punjab and Haryana v Jagdev Singh[4] which we may reproduce thus: