UNION OF INDIA & ORS. vs HARPREET & ORS.
$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14047/2024, CM APPLs. 58785/2024 & 58786/2024
UNION OF INDIA & ORS. …..Petitioners
Through: Dr. Vijender Singh Mahndiyan, CGSC with Mr. Devendra Kumar, Ms. Apurva Singh and Ms. Nikita Tiwari, Advs. for UOI
versus
HARPREET & ORS. …..Respondents
Through:
CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
ORDER (ORAL)
% 07.10.2024
1. The respondents petitioned the Central Administrative Tribunal1 by way of OA 2950/2019, challenging order dated 6 August 2019 by which their pay scales have been reduced and also praying that no recoveries of the allegedly excess amounts paid to them be effected.
2. By the impugned judgment dated 13 February 2023, the learned Tribunal has held that the deduction of the respondents salary and emoluments was unsustainable as it had been effected without putting them on notice.
3. Insofar as recovery was concerned, the learned Tribunal relied on the judgment of the Supreme Courtin State of Punjab v Rafiq Masih2, to hold that no recovery could be effected from the respondents.
4. Aggrieved by the said decision, the Union of India has moved this Court under Article 226 of the Constitution of India.
5. We have heard Dr.Mahndiyan, learned Counsel for the petitioners.
6. Irrespective of the correctness or otherwise of the impugned judgment of the learned Tribunal, insofar as it sets aside the decision to reduce the pay scales of the respondents, it is clear that no recoveries could be effected from them, in view of the judgment of the Supreme Court in Rafiq Masih, which has been reiterated by the Supreme Court in Sasikala Devi P. v State of Kerala3 and, very recently, in Jagdish Prasad Singh v State of Bihar4.
7. Rafiq Masih is clear and categorical in holding that recovery from employees, who have been paid excess payment for over five year, before the order of recovery is issued, cannot be effected, even if the order of excess payment is found to be erroneous.
8. Para 18 of Rafiq Masih may be reproduced thus:
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 Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
(Emphasis supplied)
9. To the extent the impugned judgment of the learned Tribunal holds that no recoveries could be effected from the respondents, therefore, it is unexceptionable, and is accordingly upheld.
10. Apropos the aspect of reduction of the pay scales of the respondents, on a query being put by the Court to Mr. Mahndiyan as to the order by which they were initially granted higher pay scales, Mr. Mahndiyan seeks some time to place the necessary documents on record.
11. Re-notify on 28 October 2024.
C.HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
OCTOBER 7, 2024/sk
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1Tribunal, hereinafter
2 (2015) 4 SCC 334
3 (2023) SCC OnLine SC 513
4 (2024) SCC OnLine SC 1909
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