Union Of India & Anr. vs Js Sharma And Ors.
2013 Latest Caselaw 3922 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Decided On : September 4, 2013

+     W.P.(C) 5555/2013

UNION OF INDIA & ANR.                              ..... Petitioners

                   Through :      Mr. Ruchir Mishra and Mr. Sanjiv
                                  Kumar Saxena, Advs.
                         versus

JS SHARMA AND ORS.                                 ..... Respondents

Through : None.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE NAJMI WAZIRI (OPEN COURT)

CM 12345/2013(exemption)

Allowed, subject to all just exceptions.

The application stands disposed off.

W.P.(C) 5555/2013 & CM 12344/2013(stay)

1. This writ petition is directed against the order dated

5th February, 2013 of the Central Administrative Tribunal, Principal

Bench, New Delhi, ("Tribunal"). The endeavour of the petitioner to

recover from the respondents herein such monies as were paid to them

wpc 5555.13 Page 1 as transport allowance was directed to be not recovered. The issue

before the Tribunal was:

"Whether Group "A" officers who had been granted Grade Pay of Rs.10,000/- under Non- Functional Upgradation Scheme, were entitled for drawing the Transport Allowance at the enhanced rate of Rs.7,000/- + DA on par with Joint Secretary level officers in the Government of India, who are also in the Grade Pay of Rs.10,000/-."

2. The facts in which the present issue arose are that for

commuting between office and residence. Officers of the level of

Joint Secretary and above are provided with the facility of staff car on

prescribed payment basis (under Office Memorandum No. 20(5)-

E.II(A)/93 dated 28th January, 1994). They have the option to switch

over to payment of transport allowance, at applicable rates subject to

the facility of staff car being withdrawn. The respondents who were

Group A Officers, were drawing pay at par with an officer of the post

of Joint Secretary. However, the respondents reached that level of pay

scale on the grant of non-functional upgrade (under Officer Order No.

30/26/2010-EC-EW-1 dated 3rd February, 2011). This upgrade was in

pursuance of Office Memorandum (OM) No. AB.14017/64/

2008-Estt.(RR) dated 24th April, 2009 of the DoPT, which

wpc 5555.13 Page 2 recommended / directed such non-functional upgrade. Since the pay

grade of the respondents was at par with that of officers of the level of

Joint Secretary - as a consequence of the grant of the non functional

upgrade - they were being allowed transport allowances at the rate of

Rs.7,000/- + D.A. from the dates from which they were conferred the

upgrade.

3. The said allowances were sought to be withdrawn by the

petitioners (by OM dated 23rd September, 2011) on the ground that it

was not payable to officers who were granted grade pay of Rs.10,000/-

under Non-Functional Upgradation Scheme and that the facility of

official car was available only to those who were covered by OM

dated 28th January, 1994. The over-payment of the transport

allowance was sought to be recovered from the said officers /

respondents herein by way of individual notices dated 5th October,

2011.

4. After hearing the parties in the proceedings before it, the

Tribunal found that according to the OM No. 21(1)/97/E.II(B) dated

3rd October, 1997 as amended by OM dated 22nd February, 2002, only,

those officers (at the level of Joint Secretary) who had been provided

wpc 5555.13 Page 3 with the facility of staff car and who had the option to either avail of

the facility or to switch over the payment of transport allowance were

entitled to the allowance of rate of Rs.7,000/- per month + DA

thereon. It observed that merely because the respondent officers were

in the grade pay of Rs.10,000/- - by virtue of the non functional

upgrade - they could not claim all the benefits or allowances entitled

to Joint Secretary and above and that the said benefit of transport

allowance was available only to those officers who are promoted to

Joint Secretary grade on regular basis. It further observed that a

perusal of the OM dated 24th April, 2009 would reveal that the

upgrade and consequential grade pay of Rs.10,000/- would not bestow

any right to the officers to claim promotion or deputation benefit and

that the same is personal to the officer. Accordingly, it held that the

Grade Pay Officers would not be entitled to the transport allowances.

5. Nevertheless, relying upon the ratio of Syed Abdul Kadir v.

State of Bihar, (2009) 3 SCC 475 the Tribunal directed that the

recovery of the money may not be made since the travel allowance

was being paid by the Government on its own and is not because of

any misrepresentation or fraud played by the applicants.

wpc 5555.13 Page 4

6. Learned counsel for the petitioners contended that the recovery

was sought since the officers had benefited by payments being made

to them under a bona fide mistake and they ought to return the same in

fairness. He submitted that the monies so paid to them were not their

legal entitlement and that the government was justified in seeking its

return. Learned counsel also submitted that the Grade Pay Officers

were permitted allowance of Rs. 3,200/- and hence the recovery from

those who were paid excess was sought only after deducting Rs.

3200/-. He relied upon the judgment in Chandi Prasad Uniyal and

Others v. State of Uttarakhand And Ors., 2012 8 SCC 417, to submit

that that reliance ought to not be placed on the judgement of Syed

Abdul Qadir case.

7. Chandi Prasad Uniyal was a case of restitution under Section

72 of the Contract Act, 1872, whereby recovery of amount paid in

excess without any authority of law and payments so received by the

recipient party was allowed to be recovered lest it amount to unjust

enrichment. It was held that:

"14. We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case

wpc 5555.13 Page 5 since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.

15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy."

8. This court notices that the case, however, was with relation to

wrong / irregular pay fixation whereas in the present case the pay had

already been fixed and the monies were paid to the Grade Pay Officers

without any misrepresentation on fraud played by them. This court

further notices that the case further involved a specific service

condition that read "In the condition of irregular / wrong pay fixation,

the institution shall be responsible for recovery of the amount received

in excess from the salary/pension". The Supreme Court had held that

the said condition bound the parties therein. However, no such

condition has been pleaded or relied on in the present case.

wpc 5555.13 Page 6

9. Furthermore, this court is of the opinion that the case of the

grade pay officers falls in the exceptional category - which exception

even the Chandi Prasad Uniyal case recognized the existence of - that

would have the benefit of the ratio of Syed Abdul Qadir (supra):

"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] , Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara (Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar

wpc 5555.13 Page 7 [(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 2000 SCC (L&S) 394]."

10. Having considered the arguments and the facts of the case and

the ratio of Syed Abdul Kadir case, this Court finds no reason to

interfere with the impugned order. The petition is without merit and is

accordingly dismissed.

S. RAVINDRA BHAT, J

(JUDGE)

NAJMI WAZIRI, J

(JUDGE)

SEPTEMBER 4, 2013 'sn'

wpc 5555.13 Page 8