Attar Singh vs Delhi Transport Corporation And ...
1998 Latest Caselaw 615 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner in this petition has sought quashing of demand (annexure-D) dated 31.10.1994 with further direction to the respondent to release the amount of Contributory Provident Fund along with interest at the rate of 12% p.a. and to release his unpaid dues, namely, one month salary for the month of May, 1993, difference of ex-gratia, difference of gratuity, arrears of dearness allowance, difference of leave encashment, difference of notice salary, difference of bonus for the years 1986 to 1991 and difference of House Rent Allowance and Cky Compensatory Allowance for the year 1986.

2. On 26.7.1995 when this petition came up, after the respondent had put in appearance and filed its counter affidavit, it was noticed that the amounts due and payable to the petitioner are far in excess of the amount of recovery sought to be made by the respondent from the petitioner. As such the respondent was directed to pay the amount due and payable to the petitioner except an amount of Rs.18,225.08, out of the retiral benefit. After this order, the parties filed further affidavits. We need not state the petitioner's case, as was put up when this petition was filed, except by noticing the stand taken in further affidavits.

3. It is stated that the petitioner was appointed as a Conductor in 1961 in the basic pay of Rs.102-110. He was redesignated as Assistant Cashier in October, 1975, when he was drawing a sum of Rs.302/- as Conductor. After redefinition as Assistant Cashier, his pay scale was raised to Rs.260-6-326-8-390-10-400 plus Rs.40/- as special pay. As the petitioner was already getting Rs.302/- as Conductor, after redefinition he started getting Rs.302/- plus Rs.40/- as special pay.

4. The Corporation in 1981 revised pay scale of certain categories of its employees including Assistant Cashier with retrospective effect, namely, from 1.1.1973. The special pay being paid to redesignated Assistant Cashier was merged with the basic pay and thus this amount of Rs.40/- stood merged with Rs.260/-. Accordingly, the basic pay of Assistant Cashier, according to the petitioner, should have been Rs.300/-. However, the petitioner's basic pay was fixed at Rs.290/- when his pay scale became Rs.290-8-370-10-400- 10-480. At that time the petitioner was getting Rs.302/- as basic pay plus Rs.40/- as special pay. After revision, he started getting pay, which was fixed at Rs.338/- as basic plus Rs.4/- as personal pay. This was done, keeping in view the order of 12.6.1981, the relevant portion of which reads:-

"The pay i.e. Basic pay + Special pay in the existing scale be fixed at the stage next below the amount so computed in the new scale of pay and the difference will be treated as personal pay to be absorbed in the future increments."

5. According to the petitioner, as per revised scale, he was eligible to gel Rs.338/-only but as he was already getting Rs.342/-, therefore, the surplus amount of Rs.4/- was treated his personal pay, to be absorbed in future increments. According to him, in the year 1982 on implementation of the 3rd Pay Commission, certain anomalies arose in the pay scale of various ministerial staff. The anomaly relevant to the petitioner's case was that the basic pay of Junior Clerk, being a rank below Assistant Cashier was fixed at Rs.290-8-370-10-480, namely, the same pay scale as that of Assistant Cashier. In order to remove this anomaly, the Corporation through its resolution No.154/82 dated 25.10.1982 decided to re-fix the pay scale, in which it was made clear that the financial benefit will accrue to the concerned categories w.e.f. 25.10.1982 and the employees will not be entitled to arrears for the intervening period. Accordingly, the pay scale of Assistant Cashier was fixed at Rs.330-8-370-10-480. The petitioner still was getting Rs.338/- as basic pay plus Rs.4/- as personal pay. In the new scale there was a loss of Rs.338/-, therefore, the petitioner continued to get Rs.338/- as basic pay plus Rs.4/- as personal pay and continued to earn usual increments.

6. It is stated that he was promoted as Senior Clerk in November, 1985 from which post he retired in May, 1993. At the time of retirement, he was getting basic pay of Rs,1720/-. This affidavit the petitioner filed in response to the affidavit of the respondent dated 8.8.1995, which stated that while going through the service book of the petitioner, it was observed that the pay fixation on 3.10.1975 was wrong and it was wrongly fixed at Rs.338/- whereas the same should have been Rs.330/- only and accordingly excess payment was being made to the petitioner. Opportunity was allowed to the respondents to file further affidavit. On 27.1.1997 further affidavit of Shri Taranjeet Singh was filed stating: -

"The petitioner was initially re-designated as Assistant Cashier from the cadre of Conductor w.e.f. 3.10.1975 being the similar scale at that time of both cadres. Subsequently, the pay scale of Assistant Cashier was revised merging the special pay w.e.f. 1.1.1973 Rs.330-8-370-10-400-EB-10-480 and vide circular No.PLD/IX/(465)/82/13235 dated 17.12.1982 (the copy of the said circular is annexed herewith as annexure-R.l). The said circular provided that the pay of the employees appointed/promoted on or after 1.1.1973 may be fixed in the revised pay scale and they may also be treated to have been appointed/promoted in the revised scale. Since the petitioner was drawing basic pay of Rs.302/- as on 3.10.1975 in the cadre of conductor, as such in the light of Government of India's instructions circulated vide letter under reference, the pay of the petitioner as on 3.10.1975 was to be fixed as under:-

Dale of Increment B.P.

Scale

1.7.1975 Rs. 302/-

Rs. 260-6-290-EB-

6-326-8-366-EB-

R-390-10-400/-

3.10.1975 Rs. 330/-

Rs. 330-8-370-10-

400-EB-10-480/-

As he was drawing less B.P. (Basic Pay), as on 3.10.1975 from the initial stage of his promotional post pay scale i.e. Assistant Cashier."

7. It may be observed that the petitioner sought his voluntary retirement w.e.f. 31.5.1993 under the Voluntary Retirement Scheme, as applicable to Delhi Transport Corporation. This request was acceded to and the petitioner was allowed to voluntarily retired through Memorandum dated 31.5.1993 (Annexurc-A). At the lime of retirement, the petitioner was paid some amounts due to him under various heads, namely, Exgraliaj leave encashment, notice salary and gratuity. The amount of Contributory Provident Fund was not paid to him at that time. On 18.8.1993 an order was made for release of Contributory Provident Fund. Despite this order when nothing was paid besides other dues, the petitioner was served with letter dated 31.10.1994 (Annexure-D) slating:-

"It is to inform you that a sum of Rs. 18,225.08P is recoverable from you on account of excess payment towards fixation of pay since 3.10.75 to 31.5.93. You are required to deposit Rs.l8,225.08P immediately on receipt of this letter, with the cashier of this unit, failing which the same will be recovered from your unpaid dues without further notice.

Sd/-31.10.94 DEPOT MANAGER"

8. Needless to add that the aforementioned order saying that the amount stated to have become due and recoverable by the respondent on the ground of alleged wrong fixation of pay was passed without any notice to the petitioner and that also after the petitioner retired. Wrong fixation is alleged to be due to some difference in interpretation of the two letters, namely, (annexure-H) dated 12.6.1981 and (annexurc-R.l) dated 17.12.1982. In view of the clarification issued through office order dated 12.6.1981, if read in right prospective, there is no manner of doubt that the petitioner, who was getting a sum of Rs.342/- and whose basic pay was required to be fixed at Rs.338/-,was rightly fixed at Rs.338/- as basic pay plus Rs.4/- as personal pay, being special pay to whom afore quoted letter dated 12.6.1981 would apply that his basic pay plus special pay in the existing scale was to be fixed at the stage next below the amount so computed in the new scale of pay. The difference was to be treated as personal pay, which was to be absorbed in future increments. Had an opportunity been allowed to the petitioner before passing of any order, he could have brought to the notice of the authorities about this confusion. But without affording any hearing, the order was passed by the respondents holding that the amount is due and payable by the petitioner, which has to be treated as void and non est. Reference be made on this proposition to the decision of Supreme Court in Sahib Rum v. State of Haryana and Ors. 1995 Supp (J) S.C.C. I8.

9. Consequently, we allow the petition, quash order (Annexure-D) and restrain the respondents from recovering the said amount of Rs.18,225.08 from the petitioner. This amount along with revised dearness allowance by treating the petitioner's pay as Rs.338/-plus Rs.4/- as personal pay, during the relevant period, along with any other dues payable will be worked out and paid to the petitioner along with interest at the rale of 10% p.a. from the due date till payment within a period of three months from the dale of receipt of this order.