Delhi High Court

Sudesh Kumar vs Union Of India & Ors. on 20 May, 2014

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              WP(C) No.2614/2014 and CM No.5420/2014

SUDESH KUMAR                                        ..... Petitioner

                     Through:      Mr.Ankur Chhibber, Advocate.

                          versus

UNION OF INDIA & ORS.                               ..... Respondents

                     Through:      Mr. Himanshu Bajaj, CGSC.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                          O R D E R (ORAL)

: REVA KHETRAPAL, J.

WP(C) No.2614/2014

1. The present writ petition has been filed challenging the order

dated November 28, 2013 passed by the Deputy Inspector General of

Police, CRPF illegally and erroneously re-fixing the pay of the

petitioner to his detriment; as well as the action of the respondents in

seeking to recover amounts from his salary pursuant to the pay re-

fixed vide the aforesaid order.

2. The relevant facts are that pursuant to the recruitment drive

held in the year 2003, the petitioner joined the CRPF in the rank of

Head Constable (Min.) on August 01, 2003 and upon joining the

force, the petitioner was given a pay scale of Rs. 3200-85-4900 and

accordingly the basic pay of the petitioner upon joining the force was

fixed at Rs. 3200/-. Pursuant to the annual increments earned, the

petitioner as on August 01, 2005 was drawing the basic pay in the

sum of Rs. 3370/- per month. However, pursuant to the

recommendations of the 6th Central Pay Commission notified vide

Gazette Notification No. F.1/1/2008-IC dated July 21, 2009, Pay

Band-I in the pay scale S-6 of Rs. 3200-85-4900 (i.e. petitioner's pay

scale) was revised to Rs. 5200-20200 with Grade Pay of Rs. 2000/-.

Resultantly, the pay in the post pertaining to the petitioner, that is, the

post of Head Constable in CPMFs was revised to Rs.4000-6000/-

with Grade Pay of Rs. 2400/-. The afore-mentioned revised pay

structure is set out in Part 'C' of the First Schedule of the CCS

(Revised Pay) Rules, 2008.

3. The pay of the petitioner was accordingly re-fixed by the

concerned Group Centre and audited by IAP-III as Rs. 7510/- with

Grade Pay of Rs. 2400/- thereby amounting to a sum of Rs. 9910/-

(total Rs.7510+2400/-) with effect from January 01, 2006.

Consequent to re-fixing of the pay and further in consequence to the

increments earned by the petitioner and the promotion of the

petitioner to the rank of ASI (Min.) on June 17, 2010, the pay of the

petitioner was fixed at Rs. 13,410 (Rs. 10610 + 2800) with effect

from July 01, 2013.

4. Suddenly and arbitrarily, without giving any show cause notice,

respondent No. 2 passed an order dated November 28, 2014, revising

pay fixation of the petitioner as per memorandum dated October 07,

2013 and fixing the pay of the petitioner at Rs. 8670/- with effect

from January 01, 2006.

5. Subsequent to the order dated November 28, 2013, once again

without issuing any show cause notice to the petitioner, the

respondent No.2 made deductions from the pay of petitioner in

accordance with the revised pay structure detailed in the said order.

Aggrieved by the order dated November 28, 2013 as well as the

deductions from his salary, the petitioner has filed the present writ

petition.

6. Learned counsel for the petitioner contended that the pay of the

petitioner could not be fixed at less than Rs. 9910/- on account of the

fact that pursuant to the recommendations of the 6 th Central Pay

Commission and as reflected in the CCS (Revised Pay) Rules, 2008,

the Entry Pay in the revised pay structure for direct recruits appointed

on or after January 01, 2006 in Pay Band-1 (Rs. 5200-20200/-) was

fixed at Rs. 7510/- with Grade Pay of Rs. 2400/- totaling to a sum of

Rs. 9910/-.

7. Learned counsel for the petitioner highlighted the fact that no

request was ever made by the petitioner seeking re-fixation of pay nor

was there any mis-representation on his part at the time of the fixation

of his pay and as such the respondents were bound to serve a notice

upon the petitioner before again re-fixing the pay of the petitioner to

the petitioner's detriment. Even otherwise, once pay had been fixed

by the respondents, no recovery could have been made except in

accordance with law, which necessitated serving a show cause notice

before effecting any recovery.

8. On the aspect that recovery has generally been prohibited by

Courts where there is no misrepresentation or fraud on the part of the

employee and excess payment has been made by applying a wrong

principle in calculating the pay/allowance or on the basis of a

particular interpretation of a rule/order, which is subsequently found

to be erroneous, reliance was placed by learned counsel for the

petitioner upon the decisions of the Apex Court reported as (2009) 3

SCC 475 Syed Abdul Qadir & Others vs. State of Bihar & Others;

and (2006) 11 SCC 709 Col. B.J.Akkara (Retd.) vs. Government of

India & Others.

9. The learned counsel for the petitioner also contended that the

present case is squarely covered by a Division Bench judgment of this

court in WP(C) No. 4295/2011 titled B.D. Dubey and Ors. Vs. Union

of India and Ors. wherein the Court observed that if any action was

intended by the respondents to place the petitioner in a lower pay

band, a show cause notice was required to be issued containing the

reasons for the tentative decision taken by the respondents. Only

after affording an opportunity of hearing could any decision be taken

and no recovery could be effected till then. The relevant paragraphs

of the said judgment read as under:-

"4. Be that as it may, the fact of the matter remains that having placed petitioners in a particular pay scale and having paid salary each month to the petitioners as per the pay scale, without any show cause notice being issued not only is the scale of

pay in which the petitioners were placed downgraded but recoveries are sought to be made.

5. Two issues need to be adjudicated. Firstly, whether the petitioners' pay scale can be downgraded and secondly, if it is held that the pay scale can be downgraded, whether recoveries can be made.

6. The first requires an adjudication, post issuance of a show cause notice to the petitioners. The second issue requires a debate on the point: Having paid salary to the petitioners at a pay scale higher than what was due to them and the petitioners not playing any fraud or making misrepresentation when the pay scale was fixed and having received salary on the assurance that it belongs to them and thus having spent the same, whether estoppel would bar the respondents from urging to the contrary and effect recoveries.

7. Noting that the respondents have not issued any show cause notice to the petitioners and also further noting that the Director General CRPF, the Highest Executive Authority of the CRPF is prima facie of a view which is being projected by the petitioner, we dispose of the writ petition quashing the impugned signals dated 20.5.2011 and 31.5.2011. We direct that petitioners would continue to draw pay and allowances in the Pay Band-I i.e. Rs.5,200-20,200/-with grade pay Rs.2,400/-.

8. If respondents intend to take any action to place the petitioners in a lower pay band, show cause notice would be issued containing the reasons for the tentative decision taken by the respondents. Petitioner would be given an opportunity of being

heard. Decision would be taken. Needless to state no recoveries shall be effected till then."

10. The primal question for consideration in the present case is:

Whether the pay of the petitioner having been re-fixed pursuant to the

recommendations made by the 6th Central Pay Commission could

have been revised by the respondents to the detriment of the petitioner

without even issuance of a show cause notice to the petitioner. The

other question which requires consideration is: Whether the excess

amount (if any) paid to the petitioner, not having been paid on account

of any mis-representation or fraud on the part of the petitioner, but on

account of mis-calculation of the pay of the petitioner, which was

subsequently found to be erroneous, whether the respondents can

recover the said amount unilaterally and even without issuance of

show cause notice to the petitioner.