Full Text
HIGH COURT OF DELHI
Date of Decision: 6th March, 2023
DILBAGH SINGH BAINS..... Petitioner
Through: Mr. R.A. Sharma, Adv.
Through: Mr. Arun Birbal, Adv. for DDA.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)
JUDGMENT
1. The challenge in this petition is to an order dated July 31, 2019 passed in Original Application being OA. 747/2019 by the Central Administrative Tribunal thereby dismissing the OA.
2. The grievance of the petitioner in the OA was against the recovery made from his retiral dues pursuant to the orders dated August 8, 2018 and August 28, 2018. The petitioner had sought a direction to the respondents to refund the amount recovered.
3. The facts as noted from the petition are, the petitioner had joined respondent DDA as Junior Engineer (C) on July 23, 1981 and retired as Assistant Engineer (C) on superannuation on April 30, 2018. During the pre-audit of the pension and terminal benefits, certain discrepancies W.P.(C) 9763/2019 Page 2 were noticed with respect to grant of 2nd ACP/MACP. The 1st ACP was granted to the petitioner vide order dated March 29, 2004 w.e.f July 1, 2001 and 2nd ACP was granted vide order dated December 22, 2005 w.e.f July 23, 2005.
4. On re-examination, the respondents have issued an Office Order dated August 8, 2018, whereby the respondents have granted the financial upgradation to the petitioner in the pay-scale of ₹10,000 - ₹15,200/- w.e.f July 14, 2007. Thereafter on August 28, 2018, the petitioner was granted the 3rd financial upgradation under the MACP Scheme in the pay-scale of ₹15,600 - ₹39,100/- in the Grade Pay of ₹7,600/- w.e.f June 14, 2013.
5. The petitioner submitted representations dated June 25, 2018, September 25, 2018, October 4, 2018 and November 6, 2018 and a legal notice dated November 27, 2018 to the respondents. When no action was taken by the respondents, he filed an Original Application being OA No. 375/2019 before the Tribunal. The said OA was dismissed as withdrawn on February 15, 2019 with liberty to the petitioner to file a fresh one as a fresh PPO dated April 4, 2019 was issued by the respondents showing reduced pension @ ₹45,700/- per month in place of ₹49,900/- per month granted vide earlier PPO dated May 22, 2018 resulting in recovery of amount of ₹9,90,217/- from the retiral dues payable to the petitioner which included an amount of ₹89,132/- which was recovered on account of leave encashment.
6. The case of the petitioner before the Tribunal was by relying upon the Judgment of the Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih etc, 2015 (2) SLJ 151 (SC) as the W.P.(C) 9763/2019 Page 3 impugned orders have been issued after long gap of 13 years and 5 months from the date of issue of earlier orders.
7. On the other hand, the case of the respondents was that the 2nd ACP was revised as the same was wrongly given vide order dated December 22, 2005. In other words, the 2nd ACP was wrongly granted to him on July 23, 2005 instead of entitlement from June 14, 2007. Similarly, 3rd MACP was wrongly granted to him from July 23, 2011 vide order dated June 24, 2013 instead of from date of entitlement for the same w.e.f June 14, 2013, which fact came to the notice of the respondents at the time of pre-audit of pension and terminal benefits and accordingly the orders dated August 8, 2018 and August 28, 2018 were issued.
8. The Tribunal though had noted the judgment of Rafiq Masih (supra), but had relied upon the subsequent judgment of the Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, Civil Appeal No.3500/2006 decided on July 29, 2016 to hold that in terms of the said judgment there is no illegality and infirmity in the impugned orders passed by the respondents.
9. The submission of the learned counsel for the petitioner before us is that the Tribunal has clearly erred in not following the ratio of the judgment in the case of Rafiq Masih (supra). That apart his submission is that the Tribunal has wrongly relied upon the judgment in the case of Jagdev Singh (supra) inasmuch as in the said judgment, recovery was upheld as there was an undertaking given by the employees in that case that any payment found to have been made in excess would liable to be adjusted. It was in that fact situation, the Supreme Court justified the W.P.(C) 9763/2019 Page 4 recovery. According to him, it is not such a case here inasmuch as no such undertaking was ever given by the petitioner. In fact, no such finding has been returned by the Tribunal while applying the ratio of the judgment of the Supreme Court in Jagdev Singh (supra).
10. On the other hand, learned counsel for the respondents would justify the order of the Tribunal and seek dismissal of petition.
11. Having heard the learned counsel for the parties, at the outset we may state that the leaned counsel for the petitioner has not contested the recovery of an amount of ₹89,132/- against leave encashment. His grievance is primarily with regard to the action taken by the respondents in recovering the amount of ₹9,90,217 - ₹89,132/-. There is no dispute that the over payment which was sought to be recovered by the respondents was on account of grant of 2nd ACP / 3rd MACP on dates prior to the entitlement of the petitioner. It was the said mistake which was sought to be rectified by the respondents. Such a decision cannot be contested. The only issue which needs to be looked into is whether the benefits given to the petitioner on grant of 2nd ACP / 3rd MACP w.e.f 2005 / 2011 can be recovered because of the change of date of entitlement.
12. The judgment of the Supreme Court in the case of Rafiq Masih (supra) is very clear wherein the Supreme Court has culled out situations where the benefits cannot be recovered, the same are, as under: “(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. W.P.(C) 9763/2019 Page 5
(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.
(iv) 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.
(v) 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 far outweigh the equitable balance of the employer's right to recover.”
13. Reliance placed by the Tribunal on the judgment of Jagdev Singh (supra) is totally misplaced. In the said judgment, the Supreme Court has upheld the recovery of the excess amount that was paid to the respondents therein with a clear undertaking that any payment found to be in excess would liable to be adjusted. In fact, the Supreme Court has distinguished the judgment in the case of Rafiq Masih (supra). No such undertaking has been given by the petitioner herein at the time of grant of 2nd ACP / 3rd MACP in 2005 / 2011 respectively. In fact, we note, no finding has been returned by the Tribunal in that regard to make the judgment of the Supreme Court in the case of Jagdev Singh (supra) applicable to the facts of this case. Rather, we find that the Tribunal has said that the impugned orders have been passed in view of the pre-audit done in the case of the petitioner while determining his pension and other retiral benefits when they found, inadvertently the petitioner was granted 2nd ACP / 3rd MACP from the date prior to the date of his actual entitlement, which has been rectified by the impugned orders dated August 8, 2018 and August 28, 2018. W.P.(C) 9763/2019 Page 6
14. Suffice to state such a finding cannot be a reason for not to apply the ratio of the judgment in the case of Rafiq Masih (supra). We find that the ratio of judgment in the case of Jagdev Singh (supra) has no applicability to the facts of this case. At this stage, we may state that Mr. Birbal has made a submission that departmental proceedings were initiated against twelve employees of DDA and out of whom ten employees including the petitioner have been found guilty. Suffice to state, such a stand was not pleaded by the respondents before the Tribunal. In any case, the said aspect has no bearing on the issue decided by the Tribunal.
15. Upholding the action of the respondents to grant the benefit of 2nd ACP / 3rd MACP from 2007 / 2013 respectively, it is held that the recovery that has been effected by the respondents from the retiral dues of the petitioner is illegal and is set aside. The respondents are directed to refund the amount as recovered to the petitioner minus the amount of ₹89,132/- (against leave encashment) within a period of eight weeks from today with interest @ 5% per annum computed from the date of recovery till the date of refund.
16. The petition is disposed of. No costs.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J MARCH 06, 2023