Delhi High Court
Municipal Corporation Of Delhi vs Hospital Employees Union & Ors. on 8 March, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C ) No.1016/2010
% Date of Decision: 08.03.2010
Municipal Corporation of Delhi .... Petitioner
Through Mr.Sanjeev Sabharwal, Standing
Counsel for the petitioner.
Versus
Hospital Employees Union & Ors. .... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The petitioner, Municipal Corporation of Delhi has challenged the
order dated 13th July, 2009 passed in T.A. No.481/2009 titled Hospital
Employees Union and others v. Municipal Corporation of Delhi setting
aside the recovery order passed against the respondents against excess
payment of PCA/HPCA made to them.
The respondents had impugned order dated 15th April, 2008
ordering the recovery of Patient Care Allowance (PCA) from the staff of
Swami Dayanand Hospital made w.e.f 1st April, 2008 on the ground
that the PCA was stopped from 1st November, 2007, as on revision the
Ministerial Staff was not entitled for the same. The respondents had
challenged the order dated 1st April, 2008 seeking stay of recovery and
to treat them at par with similarly circumstanced Ministerial Staff
working in other hospitals.
The petition was contested by the petitioner contending that the
respondents were wrongly paid the PCA which had been withdrawn.
Revised allowance was paid to the respondents vide office order dated
29th September, 1999 and as per clarification dated 22.2.2000 it was
stopped, however, it continued to be paid for seven years and thereafter
it was detected. It was contended by them it was rightly withdrawn and
the recovery was initiated. It was also asserted by the petition that non
refund applied only to salary and not to allowances.
The Tribunal after considering the contention has held that the
allowance (PCA) was disbursed right from 1999 to 2000 and the error
had been detected later on after a gap of 7 years. The Tribunal noticed
that since there was no misrepresentation or fraud on the part of the
respondents for the excess payment made to them relying on Syed
Abdul Qadir and others Vs. State of Bihar and others, (2009) 1 SCC
(L&S) 744, it was held that the petitioner shall not be entitled to recover
the excess amount paid to the respondents by order dated 13th July,
2009 in T.A no.481 of 2009 which is challenged by the petitioner in the
present writ petition.
The learned counsel for the petitioner has impugned the order
contending that since the allowance (PCA) was paid on account of an
error, the respondents are liable for repayment of the same and the
petitioner is entitled to recover the same.
The learned counsel for the petitioner has however, not been able
to counter the proposition of law laid down by the Supreme Court in
Syed Abdul Qadir (Supra) holding that if the excess amount has been
paid to employees not because of any misrepresentation or fraud on the
part of the employees, and if they had no knowledge that the amount
paid to them was more than what they were entitled too, the employees
cannot be held responsible. If the payment was on account of inaction,
negligence and carelessness of the Official concerned, it will not be
appropriate to recover the same from such employees.
The learned counsel for the petitioner has contended that in the
case of Syed Abdul Qadir (Supra) majority of beneficiary has either
retired or were on the verge of retirement, therefore, the Supreme Court
had not directed for recovery of the same. However, in the present case,
the respondents are not on the verge of retirement or have retired and
therefore, the petitioner is entitled to recover the excess amount paid to
the respondents.
The learned counsel for the petitioner has also relied on the case
of Union of India and another Vs. Narendra Singh reported in (2008) 1
SCC (L&S) 547. From perusal of Narendra Singh (Supra), it is apparent
that the ratio of the case relied on by the petitioner is distinguishable.
The Supreme Court has held that erroneous promotion could be
rectified and the plea that erroneous promotion could not be rectified
was repelled.
The learned counsel for the petitioner has tried to distinguish the
case of Syed Abdul Qadir (Supra) on the ground that the employees in
that case had either retired or on the verge of retirement, therefore, they
were held not liable to pay excess payment made to them on account of
carelessness and negligence on the part of the Officials. The plea of the
learned counsel for the petitioner is not tenable. What was held by the
Supreme Court was that if the employees have not got the excess
payment on account of misrepresentation or fraud on their part and
they also had no knowledge that the excess amount had been paid to
them, it will not be appropriate to direct recovery of the same from such
employees.
There has not been any plea on the part of the petitioner that the
audit objection which was raised was brought to the notice of the
respondents or they had the knowledge that they are not entitled to
PCA. In the circumstances, nothing can be imputed against the
respondents. There has not been any misrepresentation, fraud on the
part of the respondents. Therefore, the decision of the Tribunal relying
on the judgment of the Supreme Court in the case of Syed Abdul Qadir
(Supra) cannot be faulted and there is no ground to interfere with the
decision of the Tribunal, nor any such illegality or irregularity has been
pointed out which shall require interference by this Court in exercise of
its jurisdiction under Article 226 of the Constitution of India.
The writ petition in the facts and circumstances is without any
merit, and it is, therefore, dismissed.
ANIL KUMAR, J.
MARCH 08, 2010 MOOL CHAND GARG, J.
'vk'
