UNION OF INDIA AND ANR  Vs S P SINGH AND ORS

WP(C ) 23/2021 Page 1 of 5
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 23/2021 & CM APPLs. 70 -72/2021

UNION OF INDIA & ANR. ….. Petitioners
Through: Mr. Arun Bhardwaj, CGSC.

versus

S P SINGH AND ORS. ….. Respondents
Through: Mr.M.K. Bhardwaj, Advocate.

% Date of Decision: 06th January, 2021
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
HON’BLE MS. JUSTICE ASHA MENON

J U D G M E N T
MANMOHAN , J (Oral)
1. Present writ petition has been filed challenging the order dated
28:
th
“4. Mr. M.K. Bhardwaj, learned counsel for applicants
submits that the controversy involved in this O.A. is squar ely covered by the order of this Tribunal dated
01.08.2017 in O.A. No.497/2015 (Dileep Kumar Jain & others v. Union of India & another) and this O.A. could also be disposed of in terms of the said order.
xxx xxx xxx September, 2018 passed by the Central Administr ative Tribunal
(hereinafter referred to as the ‘CAT’) in O.A.No.1882/2015. The
relevant portion of the said order is reproduced hereinbelow:-
6. I have perused the ibid order o f the Tribunal. The
applicants therein were Chief Engineers working in
Central Electricity Authority (CEA) – Government of
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India entity. They had also been paid TA @ Rs.7000/ – +
DA thereon, and in their context also, the CEA had
ordered recovery. The Tribunal took a view that the applicants therein had not indulged into any act of
misrepresentation in securing the TA at a higher rate.
Accordingly, the Tribunal held that no recovery should be made from the applicants in respect of any excess payment made to them towards TA and that they could be paid TA
@ Rs.3200/ – + DA thereon from the date of issuance of
the order by CEA in regard to their entitlement for TA.
7. I find that the issues involved in this O.A. are
squarely covered by the aforementioned orde r of the
Tribunal. The applicants herein are also working as Chief Engineers in CWC. They have also been paid excess TA and have been subsequently directed to refund the excess payment vide order dated 07.04.2014
(Annexure A -1).”

2. Mr.M.K.Bhardwaj, learn ed counsel for the respondents, who
appears on advance notice, states that the writ petition filed by the
Union of India challenging the judgment and order of the Tribunal
dated 01
st August, 2017 in O.A.No.497/2015 has been dismissed by
this Court vide ju dgment and order dated 23rd
3. After hearing the parties at some length, this Court also finds
that the issue involved in the present writ petition is no longer res
integra as admittedly, an identical issue has been decided by this
Court against the appellant on 04 October, 2019 in
W.P.(C) No.7920/2018.
th September, 2013 in Union of
India & Anr. Vs. JS Sharma & Ors. W.P.(C) No.5555/2013 . The
relevant portion of the said order is reproduced hereinbelow:-
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“2. The facts in which the present issue arose are that for
commuting between office and residence. Officers of the level
of Joint Secretary and above are provided with the facility of staff car on prescribed payment basis (under Office
Memorandum No. 20(5) – E.II(A)/93 dated 28th January,
1994). They have the o ption to switch over to payment of
transport allowance, at applicable rates subject to the facility
of staff car being withdrawn. The respondents who were Group A Officers, were drawing pay at par with an officer of the post of Joint Secretary. However, the respondents reached
that level of pay scale on the grant of non -functional upgrade
(under Officer Order No. 30/26/2010-EC -EW-1 dated 3rd
February, 2011). This upgrade was in pursuance of Office
Memorandum (OM) No. AB.14017/64/ 2008 -Estt.(RR) dated
24th April, 2009 of the DoPT, which recommended / directed such non -functional upgrade. Since the pay grade of the
respondents was at par with that of officers of the level of Joint
Secretary – as a consequence of the grant of the non functional
upgrade – they w ere being allowed transport allowances at the
rate of Rs.7,000/- + D.A. from the dates from which they were
conferred the upgrade.

3. The said allowances were sought to be withdrawn by the
petitioners (by OM dated 23rd September, 2011) on the
ground that it was not payable to officers who were granted grade pay of Rs.10,000/- under Non-Functional Upgradation
Scheme and that the facility of official car was available only to those who were covered by OM dated 28th January, 1994. The over -payment of the tran sport allowance was sought to be
recovered from the said officers / respondents herein by way of individual notices dated 5th October, 2011.

xxx xxx xxx
9. Furthermore, this court is of the opinion that the case of the grade pay officers falls in the e xceptional category – which
exception even the Chandi Prasad Uniyal case recognized the existence of – that would have the benefit of the ratio of Syed
Abdul Qadir (supra):
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“57. This Court, in a catena of decisions, has granted
relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on
the part of the employee, and (b) if such excess payment
was made by the employer by applying a wrong principle for calculating th e pay/allowance or on the
basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
“58. The relief against recovery is granted by courts not
because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees
from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases
where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of
judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of
Haryana [1995 Supp ( 1) SCC 18 : 1995 SCC (L&S)
248] , Shyam Babu Verma v. Union of India [(1994) 2
SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara (Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1
SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar
(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National Bank v. Manjeet Si ngh [(2006) 8 SCC 647 :
(2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 2000 SCC (L&S) 394].”

10. Having considered the arguments and the facts of the case
and the ratio of Syed Abdul Kadir case, this Court finds no
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reason to interfere with the impugned order. The petition is
without merit and is accordingly dismissed. ”
4. Consequently, following the earlier Division Bench judgment of
this Court in Union of India & Anr. vs. J S Sharma & Ors. (supra) ,
the present writ petition along with pending applications are also
dismissed.
5. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e -mail.

MANMOHAN, J

ASHA MENON, J
JANUARY 06, 2021
KA

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