Bombay High Court
Sheo Dayal Gupta vs The Senior Divisional Personnel ... on 29 January, 2024
Author: M.S.Jawalkar
Bench: Avinash G. Gharote, M.S.Jawalkar
2024:BHC-NAG:1078-DB
WP 7003-2023.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 7003/2023
1. Sheo Dayal Gupta, Aged 62 years,
Occupation: Senior Roster Clerk, South
East Central Railway, Nagpur, residing
at 2459/A/42 Shrawan Nagar, Near Sarju
Town, Wathda, Nagpur 440008
... PETITIONER
...VERSUS...
1. The Senior Divisional Personnel Officer,
South East Central Railway, Divisional
Office, Personnel Department,
Kingsway, Nagpur 440001
2. The Divisional Personnel Officer, South
East Central Railway, Divisional Office,
Personnel Department, Kingsway,
Nagpur 440001.
...RESPONDENTS
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Shri R.D.Dhande, Advocate for the petitioner.
Shri C.J.Dhumne, Advocate for respondents.
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CORAM : AVINASH G. GHAROTE AND
SMT. M.S.JAWALKAR, JJ.
DATE OF RESERVING THE JUDGMENT : 25/01/2024
DATE OF PRONOUNCING THE JUDGMENT : 29/01/2024
JUDGMENT (Per : SMT. M.S.JAWALKAR, J.)
Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel
appearing for rival parties.
3. In the year 1988, the applicant was appointed as a
Porter in Group 'D' with South East Central Railway, Nagpur. In
the year 2000, the applicant was medically decategorized by the
Railways vide letter dated 01/12/2000 and he was absorbed in
alternative post as Roster Clerk with downgraded pay scale of Rs.
3050-4590/-.
4. On 30/03/2021, the applicant received a letter from
Divisional Personnel Officer for recovery of an amount of Rs.
1,16,008/- on account of over payment from 27/07/2013 to
31/03/2021. Accordingly to the respondents, his pay fixation was
wrongly done. His grade pay was changed from Rs. 2000/- to
grade pay of Rs. 2,800/- without any increment. The over
payment happened on account of grant of one increment which
the applicant was not entitled to. On noticing this mistake, his pay
was reduced to Rs. 49,000/- from Rs. 50,500/-.
5. Being aggrieved by the said letters dated 30/03/2021
and 04/06/2021, he sent the legal notice through his advocate to
withdraw the order for recovery and refund amount. Even after
sending a legal notice to the respondents, no action was initiated
by the respondents to revoke/withdraw/rescind the impugned
recovery letters dated 31/03/2021 and 04/06/2021 and refund the
said over payment amount, hence, the petitioner was constrained
to file Original Application no. 203/2022 before the Central
Administrative Tribunal, Mumbai Bench, Camp at Nagpur.
6. The Central Administrative Tribunal, Mumbai Bench,
Camp at Nagpur passed an order and disposed of the O.A.,
thereby, directing the respondents should re-fixation of the
petitioner's pay from 2000, but shall be entitled to arrears from the
proceedings three years from the date of filing the present O.A.
from January, 2019 with interest @ 9% per annum till relization of
the entire amount and further directed that the entire exercise shall
be done within a period of four months. The Tribunal though
rejected the claim of the petitioner holding that the recovery was
not illegal as the respondents had granted one increment which
the petitioner was not entitled to. Being aggrieved by the order
passed by the Central Administrative Tribunal, present Writ
Petition is filed before this Court.
7. The learned Counsel for the petitioner relied on State
of Punjab and others V/s. Rafiq Masih (White Washter) and others
reported in (2015) 4 SCC 334.
8. Admittedly, alleged over payment was made by the
Railway Authorities for the period from 27/07/2013 to
31/03/2021. As such, excess of recovery was alleged to have been
paid for a period in excess of five years. It is also alleged that
recovery letter dated 30/03/2021 received by the applicant-
petitioner on 06/05/2021 that means less than 2 months before his
retirement and such recovery orders made within one year from
the date of retirement of employee which is in view of Rafiq
Masih (White Washer) (Supra) is not permissible. In Rafiq Masih
(White Washer) (Supra), it is held that,
"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 herein above, we may,
as a ready reference, summarise the following few situa-
tions, wherein recoveries by the employers, would be im-
permissible in law:
(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.
(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 right-
fully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the con-
clusion, 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."
9. As such, recovery is illegal and impermissible and
the impugned communication dated 30/03/2021 seeking
recovery of over payment passed by the Divisional Personnel
Officer for the Senior Divisional Personnel Officer SEC.,
Nagpur for over payment of Rs. 1,16,008/- is held as illegal,
arbitrary, impermissible and therefore, quashed and set aside.
So also the order passed by learned Central Administrative Tri-
bunal, Mumbai Bench can in O.A. No. 203/2022 dated
25/08/2023 to the extent it failed to quash and set aside, the im-
pugned communication is hereby quashed and set aside. The
respondents to refund the deducted amount within a period of
four weeks. The Writ Petition is disposed of in above terms. No
costs.
10. Rule is made absolute in the aforesaid terms.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
B.T.Khapekar
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 29/01/2024 14:40:31
