Delhi High Court

Manoj Pawar vs Union Of India & Ors. on 27 May, 2014

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+              WP(C) No.3194 /2014 and CM No.6647/2014


MANOJ PAWAR                                         ..... Petitioner

                     Through:      Mr.Ankur Chhibber, Advocate.

                          versus

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

                     Through:      Mr. Niraj Kumar, Advocate.

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.3194 /2014

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

dated February 06, 2014 passed by the respondents No.5 and 6

illegally and arbitrarily 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 signals.

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 (RO) 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/-.

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 Signal Unit 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.

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

respondents No. 5 and 6 passed the impugned signals dated February

06, 2014, stating that the petitioner had erroneously been granted

annual increments with effect from July 01, 2006, which was not in

order. Accordingly, the pay of the petitioner was revised as detailed

in the order itself and fixed at Rs. 8630/- with effect from January 01,

2006.

5. 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/-.

6. 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.

7. 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.

8. 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."

9. 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.