Delhi High Court
The Bharat Sanchar Nigam Limited ... vs Fateh Singh Rana And Ors. on 5 November, 2014
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 05.11.2014
+ W.P.(C) 7490/2014, CAV.956/2014 & C.M. NOS. 17734-
17736/2014
THE BHARAT SANCHAR NIGAM LIMITED & ANR.
..... Petitioners
Through : Sh. Ankur Mittal and Sh. Abhay Gupta,
Advocates.
versus
FATEH SINGH RANA & ORS. ..... Respondents
Through : Sh. V.P.S. Tyagi, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE JAYANT NATH
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
CAV.956/2014
Learned counsel for the caveators has put in appearance.
Cav.956/2014 accordingly stands discharged.
W.P.(C) 7490/2014, C.M. NOS.17734-17736/2014
1. With consent of learned counsel for the parties, we have heard
the matter finally.
2. The Bharat Sanchar Nigam Limited (BSNL) has initiated these
proceedings under Article 226 of the Constitution of India, claiming to
be aggrieved by the order of the Central Administrative Tribunal
(CAT) dated 19.08.2014 in O.A. No.180/2014. The CAT restrained
W.P.(C) 7490/2014 Page 1
the BSNL, by the impugned order, from recovering the amounts paid
as excess salary. It also directed the BSNL to refund the amount
already recovered from the employees.
3. The brief facts are that the applicants/respondents are reserved
category (SC/ST) officials who were given the benefit of One Time
Bound Promotion Scheme (OTBP) and Biennial Cadre Review (BCR)
on expiry of 10 years and 17 years' of service respectively. The terms
of the Scheme, however, mandated release of such benefits after
expiry of 16 and 26 years. The BSNL released the benefits to its
SC/ST employees under the belief that the terms of OTBP and BCR
Scheme required such grant of benefits after lapse of shorter intervals
of service. Apparently, the BSNL became aware that its interpretation
of the OTBP and BCR Scheme was erroneous and moved the
concerned authorities to recover the amounts some time in 2009.
Eventually, by order made in November 2013, the BSNL started
recovering these amounts. The excess pay - in the present instance,
stretched back to the period of almost 14 years, i.e. commencing from
1998-99 when the first upgradation was given under the OTBP. In
these circumstances, the applicants approached the CAT which
restrained the BSNL from recovering those amounts or giving effect
of its policy to do so.
The BSNL urges that on a fair reading of the judgment of the
Supreme Court in UT Chandigarh and Ors. v. Gurcharan Singh and
Anr. 2013 (13) SCALE 293, a public employer is not fettered from
recovering the amounts paid under a mistake in the sense that its
powers are not confined only to cases where the employee engages in
W.P.(C) 7490/2014 Page 2
fraud, misrepresentation or such kind. This ruling was preceded by a
judgment in Chandi Prasad Uniyal v. State of Uttarakhand 2012 (8)
SCC 417. It is contended that the Supreme Court clarified, in an
earlier ruling in Syed Abdul Qadir and Ors. v. State of Bihar and Ors.
2009 (1) SCC (LS) 744, that recovery of amounts paid in excess could
be made only if it was established that the employee had knowledge
that the payment was received in excess or was wrongly paid despite
which she or he retained it.
5. It is urged on behalf of the BSNL that the CAT fell into error in
holding that it had accepted the position flowing from Syed Abdul
Qadir (supra) ruling and consequently had not moved to recover any
excess amounts. Arguing that with the successive decisions in Chandi
Prasad Uniyal (supra) and Gurcharan Singh (supra), learned counsel
urged that in view of the unfettered nature of the power to recover the
excess amounts, the CAT ought not have restrained it from recovering
the excess amounts. It was also contended that further direction to
refund amounts already recovered was also in error of law.
6. Syed Abdul Qadir (supra), undoubtedly, is a decision of three
Judges which stated in 2009 that a public employer ought not to
recover the amounts paid in excess of what an employee is entitled,
unless the latter's culpability or knowledge about such mistake is
shown or demonstrated. This construction was clarified in the
subsequent decisions in Chandi Prasad Uniyal (supra) and Gurcharan
Singh (supra). In both these latter decisions, it was stated that such
fettering of powers is not warranted and that regardless of the conduct
of the employee, the public employer can recover the excess amounts.
W.P.(C) 7490/2014 Page 3
7. In the present case, it is evident that the BSNL had adopted a
uniform approach - which it apparently discovered a decade later, in
that SC/ST employees were given the benefit of accelerated
upgradation under the OTBP and BCR Scheme. The initial knowledge
of the BSNL that such payments had been made by mistake, occurred
in 2009. In the circumstances, the CAT's inference that the prevailing
thinking in Syed Abdul Qadir (supra), persuaded BSNL not to recover
these excess amounts cannot be termed unreasonable. At the same
time, this Court is conscious of the fact that the subsequent rulings
have clarified that the decision in Syed Abdul Qadir (supra) cannot be
construed in a restricted manner.
8. From the facts of the present case, it is evident that the excess
amounts sought to be recovered stretched back to a period of about 14
years. In view of these circumstances, this Court is of the opinion that
an equitable approach has to be adopted. The BSNL is, therefore,
restrained from recovering the entire amount. It is, however, free to
recover the excess payment made to the extent of three years. While
doing so, the BSNL is hereby directed to first determine the total
excess payments recoverable from the applicants and thereafter divide
the same by the number of years the said employee enjoyed the
benefit. The resultant amount would then be multiplied by three and it
shall be open to the BSNL to recover the said amounts in easy
instalments from the applicants' salaries. This modification of the
CAT order, however, shall not apply in the case of those who
superannuated from the services at the time when the recovery notices
were issued. Likewise, the direction to refund shall stand modified in
that the BSNL shall be entitled to withhold the equivalent of three
W.P.(C) 7490/2014 Page 4
years' excess payment in the manner arrived at pursuant to previous
directions. The balance amount shall be refunded to the concerned
applicants.
9. The writ petition is disposed of along with the pending
applications in terms of the above directions.
S. RAVINDRA BHAT
(JUDGE)
JAYANT NATH
(JUDGE)
NOVEMBER 05, 2014
'ajk'
W.P.(C) 7490/2014 Page 5
