Bombay High Court
Union Of India And Anr vs Nasiruddin Sadruddin on 6 June, 2016
Bench: V.M. Kanade
1/5 (WP 6978 of 2010)
vat
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 6978 OF 2010
1. Union of India, )
Through the General Manager, )
Central Railway, )
Mumbai CSTM. )
2. The Divisional Railway Manager, )
Central Railway, )
Bhusawal Division, )
Bhusawal - 425 201. ) ... Petitioners
ig Vs.
Shri Nasiruddin Sadruddin, )
Artisan (Tech), Grade III, )
Under SSE (DZL), Loco / )
Bhusawal, Central Railway, )
R/at : Eknath Nagar, near )
Fatema Manzil, Khadka )
Road, Bhusawal, )
District : Jalgaon ) ... Respondents
******
Mr. Suresh Kumar a/w D. A. Dube appears for the Petitioners
None appears for the Respondent
******
CORAM : V. M. KANADE &
M.S. SONAK, JJ.
DATE : JUNE 6, 2016
ORAL JUDGMENT : [Per : V. M. Kanade, J.]
1. The Union of India has filed this petition under Article 226 of
the Constitution of India, challenging the order passed by the Hon'ble
2/5 (WP 6978 of 2010)
Central Administrative Tribunal in Original Application No. 51 of 2009
filed by the Respondent, restraining the Petitioners herein to recover
the excess amount mistakenly paid and to refund a small portion of the
amount already recovered from the Respondent with simple interest.
2. Brief facts are that the Applicant was working as Artisan
Grade-III with the Respondent. The Railway Board took a policy
decision regarding up-gradation of certain posts by order dated 28 th
September, 1998. Accordingly, he was up-graded to the post of
Artisan Grade III with effect from 1 st September, 1998. It is not in
dispute that the up-graded pay scale was to be granted on their
passing prescribed Trade Test within reasonable time. The Applicant
passed the prescribed examination on 4.8.2000. Recovery
proceedings were initiated against the Respondent for recovering the
difference of salary paid to him on his up-gradation i.e. from 1.9.1998
to 4.8.2000. The contention of the respondent was not that he had
not committed fraud and has not made any misrepresentation and the
said payment was made by the Railway Authorities. The Central
Administrative Tribunal by referring the law laid down by the Supreme
Court in several cases and more particularly, a law laid down by the
Apex Court, summarizing the whole law on the subject in the case of
Col. BJ Akkara (Retd) vs. Government of India & Others [2007 (1)
3/5 (WP 6978 of 2010)
SCC (L&S) 529], came to the conclusion that since it was established
that the Respondent had not committed any fraud or made any
misrepresentation, recovery could not have been made from the
employee.
3. In the peculiar facts and circumstances of the present case,
we do not see any reason to interfere with the impugned order made
by the Central Administrative Tribunal (CAT). The record bears out
that the Respondent was holding the post of Artisan (Tech), which is a
Grade-III post. The CAT has noted that the Respondent was in no
manner a party to or responsible for benefit of up-gradation from
1.9.1998 instead of 4.8.2000. The excess amount paid to the
Respondent during the said period works out to hardly Rs.10, 928/-.
The recovery of this amount after period of over six years would
undoubtedly bring about an iniquitous situation as held by the Hon'ble
Supreme Court in case of Shyam Babu Verma Others Vs. Union of
India and others - 1994 (27) ATC 121 and Col. BJ Akkara (Retd.)
(supra).
4. Incidentally, the Hon'ble Supreme Court in State of Punjab &
Ors. vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334,
relying upon its decisions in case of Shyam Verma (supra) and Col
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BJ Akkara (supra), has postulated some situation of hardship which
could govern employees on the issue of recovery, where payments
have mistakenly been made by the employer, in excess of their
entitlement. At paragraph '18', the Hon'ble Supreme Court has
observed 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 or
recover."
5/5 (WP 6978 of 2010)
5. We are satisfied that the case of the Respondent is covered
by the situations of hardship postulated by the Hon'ble Supreme Court
in case of Rafiq Masih (supra), and therefore, there is no case made
out to interfere with the impugned order made by the CAT. The
circumstances that the Respondent is a Grade-III employee; that the
recovery was attempted after period of six years and the excess
amount is hardly Rs.10,928/-, are also circumstances sufficient to
decline the exercise of our writ jurisdiction under Articles 226 and 227
of the Constitution of India.
6. Accordingly, this petition is dismissed. Rule is discharged.
There shall be no order as to costs.
[M.S. SONAK, J.] V. M. KANADE, J. ]
