Full Text
W.P.(C) 129/2008
TEJVIR SINGH Petitioner
Through: Ms. Nidhi Bisaria, Advocate
Through: Mr. Ankur Chhibber, Advocate for R-1-4.
Mr.Suwarn Rajan, Advocate for R-5
HON'BLE MR. JUSTICE SURESH KAIT
14.12.2009
ORDER
1. On being declared medically unfit the petitioner was sent home i.e. discharged from service. While releasing the dues payable to the petitioner the employer i.e. the respondent Nos. 1-4 affected recovery of, Rs.23,180/- as also further sum of Rs.6.081/-.
2. The petitioner was never informed as to on what count the said recoveries were being affected.
3. The employer had taken out a Group Insurance with ICICI Lombard.
4. The petitioner desired the compensation payable under the policy in question to be paid over to him. W.P.(C) 129/2008 2009:DHC:8172-DB
5. Nothing transpiring from the side of the respondents, the instant writ petition was filed praying that the sum deducted from the terminal benefits of the petitioner be released together with interest @ 18% per annum and directions be issued that the compensation payable to the, petitioner under the Group Insurance Pojicy be paid to him. a
6. With respect to the recoveries affected against the petitioner, for the first time, in the counter affidavit filed, it has been disclosed that the recoveries are being affected as under:- "(aj Recovery of Rs.12,426/- was done on account of over-payment ofpay and allowance. (b) Recovery of Rs.3,303/- was done on account of over-paynnent of Enhanced Ration money for the period 8.10.2000 to 31.8.2006.
(c) Recoveiy of Rs.4,413/- on account of over payment of Annual increment for the period 1.4.1988 to 11.1.2006.
(d) Recovery of Rs.3,638/- on account of pay and allowances for the period from 27.08.2006 to 6.9.2006. (e) Recovery of Rs.6,081/- on account of remaining balance over-payment."
7. With respect to the amount payable to the petitioner under the Group Insurance Scheme through ICICI Lombard, it is stated in the counter affidavit that the petitioner completed the paper work very belatedly and on 28.04.2008 the papers were forwarded to the competent authority for appropriate action.
8. Learned counsel for the respondent Nos. 1-4 states that as per the Policy the claim has to be raised within 30 days and since this was not done, nothing has to be paid to the petitioner under the Policy.
9. However, counsel concedes that the claim of the petitioner has not been forwarded till date to ICICI Lombard. Thus, with respect to the said claim of the petitioner, we direct that the papers be forwarded to ICICI Lombard who would look into the matter and take an appropriate decision. Needless to state if compensation is found payable to the petitioner, it would be released as per the policy.
10. Should ICICI Lombard take a stand that the claim is belated, being filed beyond 30 days prescribed under the policy, we would require ICICI Lombard to take into account Section 28 of the Contract Act as amended in the year 1997.
11. We clarify that should the claim of the petitioner for the compensation under the Group Insurance Scheme be rejected, the remedies as per law can be availed by the petitioner. W.P.fC) 129/2008 w
12. As regards the deduction in sunn of Rs.23,180/- and Rs.6,081/-, with reference to the response filed by respondent Nos. 1-4, suffice would it be to state that without putting the petitioner to notice, said deduction could not be made.
13. It is settled law that before a right of a person can be V affected by a statutory authority, a prior Show Cause Notice needs to be issued and served.
14. If respondents claim over payments unilateral recoveries and that too without indicating the basis on which it is alleged that excess payments have been made in the past cannot be resorted to. Further issue whether a payment released by the employer can be recovered after years of the same having released needs to be decided.
15. Thus, on the issue of the deductions affected from the terminal dues of the petitioner in sum of Rs.23,180/- and Rs.6,081/-, we direct the respondent Nos. 1-4 to forthwith, within four weeks from today, release the said two amounts to the petitioner and should the respondents desire any recovery, we permit respondents to issue a Show Cause Notice to the petitioner in which details of the recoveries would be disclosed W.P.fC) 129/2008 r i * to enable the petitioner to file an appropriate response. Thereafter, with reference to the response of the petitioner a reasoned decision under communication to the petitioner would be taken.
16. If the respondents insist on recoveries, the petitioner would be entitled to remedies as per law; similarly the respondents would be jentitied to adjust the excess amount from out of the pension which is being paid to the petitioner.
17. We crystallize our directions. The first direction is that respondent Nos. 1-4 would forthwith send the compensation claim papers submitted by the petitioner to ICICI Lombard, who would take the necessary decision under the Group Insurance Policy and the second is that a sum of Rs.23,180/and Rs.6081/- shall be released to the petitioner within four weeks' from today and if the respondent Nos. 1-4 desire to affect the said recoveries, appropriate Show Cause Notice would be issued and served upon the petitioner and after the petitioner files a response, reasoned decision would be taken and further action taken as per the decision.
18. No costs.
19. A copy of this order be supplied Dasti to learned counsel for the parties.
PRADEEP NANDRAJOG, J k SURESH KAIT, J DECEMBER 14, 2009 'nks' Wr r