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c- } / $-81 HIGH COURT OF DELHI
W.P.(C) 4444/2017 and CM No. 19409/2017
UNION OF INDIA & ORS Petitioners
Through: Dr. Ashwani Bhardwaj, Adv.
W.P.(C) 4444/2017 and CM No. 19409/2017
UNION OF INDIA & ORS Petitioners
Through: Dr. Ashwani Bhardwaj, Adv.
VERSUS
SUBHASH CHANDRA MATHUR Respondent
Through: None.
Through: None.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE ANU MALHOTRA
22.05.2017 CM No. 19410/2017 (Exemption)
Exemption allowed, subject tojustexceptions.
The application stands disposed of.
W.P.fC) 4444/2017 and CM No. 19409/2017 (stay)
The petitioner has preferred the present writ petition to assail the order dated 18.03.2016 and 28.02.2017 passed by the Central
Administrative Tribunal (CAT) in Original Application (OA)
No.1076/2015 and Review application No. 151/2016, preferred by the respondent-applicant. The Tribunal allowed the said Original
Application and quashed the order dated 24.06.2014, whereby recovery was sought to be made from the respondents. The Tribunal directed the petitioner to refund the recovered amount within three months and further directed that in case the said amount is not paid, 2017:DHC:8145-DB the same shall be paid with interest @ 12% per annum for the period ofdelay. The review application was also rejected by the Tribunal.
The respondent joined the service with the petitioner as a
Packer on 25.05.1973, which is a Group 'D' post and after clearing the departmental examination, he was posted as Postal Assistant
Group 'C on 11.07.1982, He ultimately retired on 31.08.2014. Upon introduction of TBOP Scheme with effect from 30.11.1983, the
^ respondent got financial upgradation in the pay scale Rs.4000-6000/- with effect from 11.07.1988, and his pay scale was revised in the Pay
Band, i.e., Rs.5200-20,200 with Grade Pay of Rs.2800 on the implementation of Vl'^ Central Pay Commission Report with effect from 01.01.2006. Further, after introduction of BCR Scheme with effect from 01.10.1991-on completion of fiirther 10 years, he became due for financial upgradation from 11.07.2008 in the next higher pay scale, i.e., PB-2, Rs.9300-34800 with Grade Pay of Rs.4200. He was found suitable for financial upgradation by the DPC and vide order dated 30.03.2009, he was granted financial upgradation in the Grade
Pay of Rs.4200/- PB-2 in the pay scale of Rs.9300-34800 with effect from 01.09.2009. Later on, a clarification dated 18.09.2009 was
^ issued with regard toadmissibility ofthe claim. Inthe light ofthe said clarification, benefits of TBOP were withdrawn from the respondent.
The Accounts Officer (Pension) Section was of the view that the respondent would not be eligible for 03''' MACP. Consequently, an amount of Rs. 2,63,026/- was deducted from the final payment due to the respondent at the time ofhis retirement. The aforesaid deduction led the respondent to prefer the aforesaid Original Application. vi
> The Tribunal has allowed the same by placing reliance on State ofPunjab and Ors. vs. Rafiq Masih (White Washer) etc. 2014 (14)
Scale 300.
The submission of the learned counsel for the petitioner is that the recovery was not unjustified or belated, since the excess payment made to the respondent came to the notice of the petitioner only upon an audit objection being raised.
We do not find any merit in this submission of the learned counsel for the petitioner. It is not the petitioner's case that the respondent, in any manner, misled the petitioner or played a fraud upon the petitioner and in consequence thereof he derived any additional payment not due to him. The petitioner was very much aware, throughout, with regard to the entitlement of the respondent. If the petitioner made any excess payment as claimed by it, though mistakenly, the same could not have been recovered after several years, and that too without issuing a notice to the respondent. The
Tribunal has taken note of the observations made by the Supreme
Court in Rafiq Masih (White Washer) (supra), which read as follows:-
"12. It is notpossible topostulate all situations ofhardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess oftheir entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
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(i) Recovery from employees belonging to Class-Ill and
Class-IVservice (or Group 'C and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within oneyear, ofthe order ofrecovery.
(Hi) Recoveryfrom employees, when the excess payment has been made for a period in excess offive years, before the order ofrecovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties ofa higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferiorpost.
(v) In any other case, where the Court arrives at the conclusion, that recovery ifmade from the employee, would be iniquitous or harsh or arbitrary to such an extent, as wouldfar outweigh the equitable balance of the employer's right to recover. " (emphasis supplied)
The case of the respondent clearly falls, at least, in the second category enumerated hereinabove, if not in the other categories.
In view of the aforesaid, we do not find any error in the impugned order passed by the Tribunal. The petition is accordingly dismissed.
MAY 22, 2017 bg VIPIN SANGHI, J ANU MALHOTRA, J
HON'BLE MS. JUSTICE ANU MALHOTRA
22.05.2017 CM No. 19410/2017 (Exemption)
Exemption allowed, subject tojustexceptions.
The application stands disposed of.
W.P.fC) 4444/2017 and CM No. 19409/2017 (stay)
The petitioner has preferred the present writ petition to assail the order dated 18.03.2016 and 28.02.2017 passed by the Central
Administrative Tribunal (CAT) in Original Application (OA)
No.1076/2015 and Review application No. 151/2016, preferred by the respondent-applicant. The Tribunal allowed the said Original
Application and quashed the order dated 24.06.2014, whereby recovery was sought to be made from the respondents. The Tribunal directed the petitioner to refund the recovered amount within three months and further directed that in case the said amount is not paid, 2017:DHC:8145-DB the same shall be paid with interest @ 12% per annum for the period ofdelay. The review application was also rejected by the Tribunal.
The respondent joined the service with the petitioner as a
Packer on 25.05.1973, which is a Group 'D' post and after clearing the departmental examination, he was posted as Postal Assistant
Group 'C on 11.07.1982, He ultimately retired on 31.08.2014. Upon introduction of TBOP Scheme with effect from 30.11.1983, the
^ respondent got financial upgradation in the pay scale Rs.4000-6000/- with effect from 11.07.1988, and his pay scale was revised in the Pay
Band, i.e., Rs.5200-20,200 with Grade Pay of Rs.2800 on the implementation of Vl'^ Central Pay Commission Report with effect from 01.01.2006. Further, after introduction of BCR Scheme with effect from 01.10.1991-on completion of fiirther 10 years, he became due for financial upgradation from 11.07.2008 in the next higher pay scale, i.e., PB-2, Rs.9300-34800 with Grade Pay of Rs.4200. He was found suitable for financial upgradation by the DPC and vide order dated 30.03.2009, he was granted financial upgradation in the Grade
Pay of Rs.4200/- PB-2 in the pay scale of Rs.9300-34800 with effect from 01.09.2009. Later on, a clarification dated 18.09.2009 was
^ issued with regard toadmissibility ofthe claim. Inthe light ofthe said clarification, benefits of TBOP were withdrawn from the respondent.
The Accounts Officer (Pension) Section was of the view that the respondent would not be eligible for 03''' MACP. Consequently, an amount of Rs. 2,63,026/- was deducted from the final payment due to the respondent at the time ofhis retirement. The aforesaid deduction led the respondent to prefer the aforesaid Original Application. vi
> The Tribunal has allowed the same by placing reliance on State ofPunjab and Ors. vs. Rafiq Masih (White Washer) etc. 2014 (14)
Scale 300.
The submission of the learned counsel for the petitioner is that the recovery was not unjustified or belated, since the excess payment made to the respondent came to the notice of the petitioner only upon an audit objection being raised.
We do not find any merit in this submission of the learned counsel for the petitioner. It is not the petitioner's case that the respondent, in any manner, misled the petitioner or played a fraud upon the petitioner and in consequence thereof he derived any additional payment not due to him. The petitioner was very much aware, throughout, with regard to the entitlement of the respondent. If the petitioner made any excess payment as claimed by it, though mistakenly, the same could not have been recovered after several years, and that too without issuing a notice to the respondent. The
Tribunal has taken note of the observations made by the Supreme
Court in Rafiq Masih (White Washer) (supra), which read as follows:-
"12. It is notpossible topostulate all situations ofhardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess oftheir entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
'.-•ft
»<. r.
Jc-.
J
J
(i) Recovery from employees belonging to Class-Ill and
Class-IVservice (or Group 'C and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within oneyear, ofthe order ofrecovery.
(Hi) Recoveryfrom employees, when the excess payment has been made for a period in excess offive years, before the order ofrecovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties ofa higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferiorpost.
(v) In any other case, where the Court arrives at the conclusion, that recovery ifmade from the employee, would be iniquitous or harsh or arbitrary to such an extent, as wouldfar outweigh the equitable balance of the employer's right to recover. " (emphasis supplied)
The case of the respondent clearly falls, at least, in the second category enumerated hereinabove, if not in the other categories.
In view of the aforesaid, we do not find any error in the impugned order passed by the Tribunal. The petition is accordingly dismissed.
MAY 22, 2017 bg VIPIN SANGHI, J ANU MALHOTRA, J
JUDGMENT