Union of India & Anr. v. Anoop Kumar Upadhyay

1. The present writ petition under Article 226 & 227 of the Constitution of India seeks to assail the order dated 02.12.2022 passed by the learned Central Administrative Tribunal (Tribunal) in O.A. 4677/2018. Vide the impugned order, the learned Tribunal has allowed the Original Application filed by the respondent by quashing the order dated 17.12.2018, whereby a sum of Rs. 9,01,173/- was sought to be recovered from him on account of the purported excess payment made to him during the period between 01.07.2011 to 30.11.2018.

2. The respondent joined the Central Public Works Department (CPWD) as a Junior Engineer on 13.04.1982 and was, on 18.08.2009 promoted as an Assistant Engineer (Civil) on ad hoc basis. In 2010, the respondent appeared in the promotional departmental examination but was unable to clear the same but was still granted an increment w.e.f., 01.07.2011, which learned counsel for the petitioners submits, was payable only to those employees who had cleared the departmental examination. Upon realising this mistake, the petitioners, after verifying the position regarding the respondent having not cleared the departmental exam, proceeded to issue the order dated 17.12.2018, directing recovery of a sum of Rs. 9,01,173/- from the respondent.

3. Being aggrieved, the respondent preferred an O.A. before the learned Tribunal on 18.12.2018 and while the same was pending, he superannuated from service on 31.05.2020. Vide its impugned order, the learned Tribunal has set aside the order dated 17.12.2018 by relying on the decision of the Apex Court in State of Punjab v. Rafiq Masih (2015) 4 SCC 334. The learned Tribunal also noted that the respondent was not put to any notice before issuing the recovery order.

4. In support of the petition, learned counsel for the petitioners submits that the impugned order is wholly perverse and liable to be set aside as the learned Tribunal has failed to appreciate that the decision in Rafiq Masih (supra) was not applicable to a Group B employee like the respondent who cannot claim that he would suffer grave hardship in case the recovery of excess amount is made from him. Once the respondent does not deny that he had not been able to clear the accounts paper in the departmental exam, which was a pre-condition for grant of increment, it is evident that he was being wrongly paid the amount towards the increment since 01.07.2011, which mistake was realized when his records were examined on account of his impending superannuation. She contends that once the respondent has been made the over payment due to mistake, he is bound to refund the same. In support of her plea, she seeks to place reliance on a decision of the Apex Court in Thomas Daniel vs. State of Kerala (2022) SCC OnLine SC 536. She, therefore, prays that the impugned order be set aside.

5. On the other hand, learned counsel for the respondent supports the impugned order and submits that the learned Tribunal has rightly relied on the decision in Mohd Rafiq (supra), which is squarely applicable to the facts of the present case, where recovery is sought to be made when the respondent is already a pensioner. He further submits that this plea that the decision in Mohd Rafiq (supra), would not be applicable to the respondent as he was a group B employee, was not even raised by the petitioners before the learned Tribunal. He, therefore, prays that the writ petition be dismissed.

6. In order to appreciate the rival submissions of the parties, we may begin by noting the relevant extracts of the impugned order. The same read as under:

7. From a perusal the aforesaid, what emerges is that while the learned Tribunal has not interfered with the decision of the petitioner to re-fix the pension of the respondent on the basis of their purported mistake in now realising that the respondent had been wrongly granted an increment w.e.f., 01.07.2011, it has quashed the order directing recovery of a sum of Rs. 9,01,173/- from the respondent. While quashing the recovery order, the learned Tribunal observed that it was an admitted position that the respondent was not guilty of any misrepresentation or fraud and therefore could not be faulted for making any excess payment to him. The learned Tribunal, therefore, held that the decision in Mohd. Rafiq (supra) was squarely applicable to the facts of the present case.

8. Even before us, learned counsel for the petitioner has not been able to deny that the respondent could not be faulted for grant of the increment to him w.e.f., 01.07.2011, as a result whereof, he received excess payment. She has, however, urged that the decision in Mohd. Rafiq (supra) was applicable only to group C and D employees, who would face grave hardships if recoveries are made from them after delay. Her submission, thus, being that Group B employees like the respondent, cannot be extended the benefits of the decision in Mohd. Rafiq (supra). Having given our thoughtful consideration to this plea of the petitioner that the respondent, being a group B employee, the decision in Mohd. Rafiq (supra), is not applicable to him, we are unable to agree. It would therefore be apposite to refer, hereinbelow, para 18 of the decision in Mohd. Rafiq (supra), wherein the Apex Court summarised the few situations wherein recoveries by employers would be impermissible.

18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and