Union Of India vs Puran Chandra Mandi Red. Lab ...
2021 Latest Caselaw 3618 Chatt

                                                                              AFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                      Writ Petition (S) No. 2417 of 2020


1.    Union of India - Through the Secretary, Railway Board, Rail Bhawan,
      Rafi Marg, New Delhi-110001
2.    General Manager, South East Central Railway, New GM Building,
      Bilaspur (C.G.) 495004
3.    Senior Divisional Personnel Officer, South East Central Railway,
      Divisional Office, Personnel Branch, Raipur (C.G.) 492008
4.    Assistant Personnel Officer, South East Central Railway, Divisional
      Office, Personnel Branch, Raipur (C.G.) 492008
                                                                       Petitioners
                                     versus
Puran Chandra Mandi Red. Lab Assistant, S/o Mohan Chandra Mandi,
presently residing at C/o K.L. Das, House No. 237/3, Sector 3, Behind 30-
Block, Balaji Nagar, Shivanand Nagar, Raipur (C.G.) 492008
                                                                    Respondents

_______________________________________________________________ For Petitioners : Mr. R.K. Gupta, Advocate For Respondent : Mr. A.V. Shridhar, Advocate

Date of hearing : 11.11.2021 Date of Judgment : 10.12.2021 _______________________________________________________________

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Goutam Bhaduri, Judge

CAV JUDGMENT

Per Arup Kumar Goswami, Chief Justice

Heard Mr. R.K. Gupta, learned counsel for the petitioners as well

as Mr. A.V. Shridhar, learned counsel appearing for the respondent.

2. By filing this writ petition, the petitioners challenge the order dated

03.01.2020 passed by the learned Central Administrative Tribunal (for short,

'CAT') Bench Jabalpur, Circuit Sitting : Bilaspur in Original Application

No.203/00717/2015, whereby, the learned CAT directed refund of recovered

amount to the applicant before it. The relief prayed for in the Original

Application filed before the learned CAT is as follows :

"8. Relief Sought :-

8.1. That, the learned Tribunal may kindly be pleased to

quash the order no E/PB/R/COU/2015/06 dated

13.07.2015 to the extent it justifies the whereby recovery

made from the DCRG of the applicant and directs further

recovery of Rs.40963/- from the pension of the applicant.

Annexure A-1.

8.2 That, the Hon'ble Tribunal may kindly be pleased to

direct the respondents to refund the amount of Rs.390575/-

recovered from the applicant with an interest of at the rate

of 18% p.a.

8.3 Cost of the Original application.

8.4. Any other relief which the learned Tribunal deems fit

and proper may be awarded."

3. For the sake of convenience, the respondent in the present writ

petition shall be referred to as the applicant and the respondents before the

learned CAT shall be referred to as the petitioners.

4. The applicant was appointed as Khalasi in Kharagpur workshop

under the South Eastern Central Railway on 10.10.1981. He was promoted to

the post of Lab Attendant with effect from 23.07.1987. He was promoted to the

post of Lab Assistant by an order dated 12.11.1988. However, the petitioners

issued an order dated 01.04.2020, reverting the applicant to the post of Lab

Attendant, on the ground that the applicant was not holding the requisite

minimum qualification.

5. Since the chronology of events, as recorded by the learned CAT,

is not disputed by learned counsel for the parties, it will be appropriate to

reproduce paragraphs 14, 15 and 16 of the order of the learned CAT, as

under :

"14. From the pleadings itself there is no dispute to the

fact that the applicant was appointed as Khalasi in Khargpur

workshop on 10.10.1981. Thereafter, the applicant was

promoted as Lab Attendant on 23.07.1987 and further

promoted as Lab Assistant on 05.11.1987. It is also

admitted fact by the parties that the respondents issued

order reverting the applicant to the post of Lab Attendant on

01.04.2020 and the applicant aggrieved by that order had

filed Original Application before the Central Administrative

Tribunal, Calcutta Bench and on 26.04.2020, stay order

was granted in Original Application No.443/2000.

Ultimately, the Original Application was dismissed by the

Co-ordinate Bench at Calcutta on 01.03.2006 holding that

applicant did not have requisite qualification.

15. It is also admitted fact that the applicant filed Writ

Petition No.250/2006 before the Hon'ble High Court of

Kolkata and the Hon'ble High Court 16.11.2006 was

pleased to dispose of the Writ Petition with a direction to the

respondents to pass appropriate orders. It is also admitted

fact by the parties that the applicant continued to perform

the duties of Lab Assistant and draw salary for the same. In

December 2006 the applicant obtained the requisite

qualification and submitted the certificates to the

respondents for consideration and the requisite certificate

was submitted in March 2007. Thereafter the applicant

preferred representation for his regularization. It is also

admitted fact by the parties that the applicant again

preferred Original Application No.558/2012 before the Co-

ordinate Bench at Calcutta and directed the respondents to

decide the representation of the applicant. Ultimately, the

respondents has rejected the representation of the

applicant on 25.08.2013. On 15/16.07.2014 the

respondents passed orders of recovery from the DCRG of

the applicant on account of excess payment granted to him

vide Annexure A-2. The applicant made representation

against the said recovery order on 22.07.2014 (Annexure A-

3) and ultimately the applicant superannuated on

31.07.2014.

16. It is also admitted fact that the applicant again filed

Original Application No.203/00114/2015 before this Tribunal

and vide order dated 12.05.2015 the Original Application

was disposed of with a direction to consider the pending

representation of the applicant. Ultimately, vide impugned

order dated 13.07.2015 the respondents have rejected the

representation of the applicant."

6. The learned CAT at paragraphs 21, 22, 23 and 24 recorded as

follows :

"21. Admittedly the applicant was reverted from the post of

Lab Assistant to Lab Attendant on 01.04.2000 and the

applicant has filed the Original Application before the Co-

ordinate Bench at Kolkata in O.A. No.443/2000 and the stay

was granted by the Bench. Ultimately, the Original

Application was dismissed on 01.03.2006. Though the

applicant has preferred a Writ Petition No.250/2006 before

the Hon'ble High Court of Kolkata and the Hon'ble Court on

16.11.2006, till date there was no recovery order from the

respondent department.

22. In the instant case legal proposition has arisen.

Firstly the applicant has worked on the strength of the

interim order by the Co-ordinate Bench of CAT and as per

judgment passed by the High Court of Allahabad in the

matters of Surya Deo Mishra (Supra), it has been held that

the payment made to the incumbent on the strength of

interim order in a particular circumstance can not be

recovered. So in the instant case also the case of the

applicant is fully covered by the above judgement and no

recovery is to be made in view of the ratio laid down by the

Hon'ble High Court of Allahabad in the matter of Surya Deo

Mishra (Supra), subsequently, the recovery order was

passed on 22.07.2014 and the applicant had retired on

31.07.2014. As per law settled by the Hon'ble Apex Court

in the matters of Rafiq Masih (Supra) has summarized the

legal position regarding recovery from retiring person and in

the instant case, the applicant fall within the parameters of

the above judgment.

23. The applicant is a Group 'C' official and has retired on

31.07.2014 whereas the recovery order has been passed

on 22.07.2014 (Annexure A-3). So in view of the law laid

down by the Hon'ble Apex Court in the matters of Rafiq

Masih (Supra) the case of the applicant is fully covered by

this judgment.

24. In view of the above, this Original Application is

allowed and the recovery order dated 13.07.2015 is

quashed and set aside and the respondents are directed to

refund the amount of Rs.3,90,575/- already recovered from

the applicant within a period of 60 days from the date of

receipt of a certified copy of this order. No order as to

costs."

7. A perusal of the judgment of the learned CAT would go to show

that in support of the case presented by the applicant, reliance was placed on

the decision of the High Court of Allahabad in the case of Surya Deo Mishra v.

State of U.P., reported in 2006 2 LLJ 583 and the decision of the Hon'ble

Supreme Court in the case of State of Punjab and Others v. Rafiq Masih

(White Washer) and Others, reported in (2015) 4 SCC 334.

8. Mr. R. K. Gupta, learned counsel for the petitioners submits that

recovery was sought to be made due to re-fixation of pay on reversion of the

applicant and such action is justified in view of the judgment of the Hon'ble

Supreme Court in the case of Chandi Prasad Uniyal and Others v. State of

Uttrakhand and Others, reported in (2012) 8 SCC 417. It is also submitted that

Rafiq Masih (supra) was decided by the Hon'ble Supreme Court on

18.12.2014, whereas the order for recovery was made by the petitioners on

22.07.2014 and therefore, the learned CAT misdirected itself in placing reliance

on the decision of Hon'ble Supreme Court in the case of Rafiq Masih (supra).

It is submitted that because of various proceedings initiated by the applicant

and in view of the orders passed thereunder, the petitioners could not revert

the applicant and re-fix his actual pay in the year 2000 and therefore, the same

has resulted in accumulation of excess payment to the tune of Rs. 4,31,538/-.

9. Mr. A.V. Shridhar, learned counsel appearing for the applicant

supports the order passed by the learned CAT. It is submitted that the action

taken by the petitioners towards recovery of the amount was challenged as

illegal and arbitrary before the learned CAT and during the pendency of such

proceeding, the Hon'ble Supreme Court rendered decision in Rafiq Masih

(supra) and therefore, the learned CAT was justified in placing reliance on the

said judgment.

10. We have considered the submissions of the learned counsel for

the parties and have perused the materials on record.

11. The applicant retired from service on superannuation on

31.07.2014. That the applicant was a group 'C' official is an admitted position.

In Chandi Prasad Uniyal (supra), the Hon'ble Supreme Court observed that it

has not laid down as a principle of law that only if there is misrepresentation or

fraud on the part of the recipients of the money in getting the excess pay, the

amount paid due to such irregular/wrong fixation of pay can be recovered. The

Hon'ble Supreme Court further observed that any amount received by the

recipient without the authority of law can always be recovered barring a few

exceptions of extreme hardships but not as a matter of right and taking note of

the facts of the case, as presented, it was held that the case of the appellants

therein did not fall in any of the exceptional categories and that apart, there

was a stipulation in the fixation order that in case of irregular/wrong pay

fixation, the institution in which the appellants were working would be

responsible for recovery of the amount received in excess from the

salary/pension.

12. While rendering Rafiq Masih (supra), the decision in the case of

Chandi Prasad Uniyal (supra) was also taken note of. After considering case

laws on the subject, the Hon'ble Supreme Court at paragraph 18 held as

follows :

"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 is 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 in 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."

13. In Chandi Prasad Uniyal (supra), there was a stipulation in the

fixation order that in the event of wrong pay fixation, excess amount drawn can

be recovered, which is not the fact situation in the instant case.

14. The applicant being a group 'C' employee and the order of

recovery having been passed nine days before his date of retirement, in view

of the decision of the Hon'ble Supreme Court in Rafiq Masih (supra), recovery

of any amount is wholly impermissible in law. Further more, the applicant

continued to discharge the duties of Lab Assistant, for which salary was paid

accordingly.

15. In view of the above discussion, we find that no case is made out

for interference with the order under challenge and accordingly, the writ petition

is dismissed. No cost.

                          Sd/-                                           Sd/-
                (Arup Kumar Goswami)                               (Goutam Bhaduri)
                      Chief Justice                                     Judge


Chandra