Bhanwar Singh vs Union Of India And Ors
2015 Latest Caselaw 5721 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Judgment reserved on August 3, 2015
                                     Judgment delivered on August 07, 2015
+            W.P.(C) 4127/2014 & CM Nos. 8299/2014, 16813/2014

BHANWAR SINGH                                           ..... Petitioner
                            Through:      Mr. Amit Trikhe, Adv.

                            versus

UNION OF INDIA AND ORS                                ..... Respondents
                  Through:                Ms. Tamali Wad, Adv. with
                                          Mr. Vaibhav Sharma, Adv.
                                          for R-2

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. In this writ petition filed by the petitioner, the challenge is made to

the Pension Payment Order dated June 16, 2014 issued by the respondent

No. 2-National School of Drama (School, in short), whereby according

to the petitioner, the pension has been reduced and being a case of a loss

of civil consequences, is not sustainable in the eyes of law, illegal and

arbitrary. Consequential relief thereof has also been sought.

2. The brief facts of the case are that, the petitioner while working as

the Registrar of the respondent No. 2-School retired on July 31, 2013 on

attaining the age of superannuation, when except GPF amounts, no

retirement dues were paid to him. The reasons for non-payment of

retiremental dues were primarily because of audit objections raised in his

case, which were as under:

(i) The regular grant of benefit under ACP scheme .

(ii) The regular appointment of the petitioner as Registrar in

NSD.

(iii) Wrong fixation and drawl of pay by the petitioner; and

(iv) Grant of advance increment to the petitioner raised by the

Office of Directorate General of Audit (Central Revenue

Expenditure).

3. The respondent No.2-School had contested the audit objections.

The Directorate General of Audit (Central Revenue Expenditure) did not

agree with the explanation and insisted upon the compliance of the audit

objections. In fact, a meeting of the respondent No. 1 was held on

January 25, 2013, which was followed by another meeting held on July

30, 2013, one day before the date of superannuation of the petitioner, and

pursuant thereto, an undertaking was given by the petitioner on the

following terms:

"I, Bhanwar Singh, Registrar, National School of

Drama, New Delhi, resident of Flat No. 20A MIG,

Gyankhand-IV, Indrapuram, Ghaziabad, UP-201010,

hereby undertake as under:

In the audit report's paras for the financial year

2009-2012 some audit objections have been identified to

be made from certain officers of the School including me.

I hereby give an unconditional undertaking that in

the event of a final decision for recoveries I shall be liable

to refund the amount which would be worked out by the

School in accordance with the Rules. I further give an

undertaking that in the event of any default on my part to

make the payment, the School would have the right to

with-hold my pension."

4. It is the case of the respondent that a Pension Payment Order was

prepared on July 31, 2013 but the same was not issued, although, a stand

has been taken by the petitioner enclosing along with the petition

Pension Payment Order dated July 31, 2013 that the same was issued to

him on the date of retirement.

5. Certain representations were made by the petitioner for release of

pensionary benefits and highlighting the need of money for his

treatment. In the month of August, 2013, sum of Rs. 9,57,000/- and Rs.

4,46,867/- were deposited in the bank account of the petitioner, after

recovering an amount of Rs. 8,28,490/- from the pensionary benefits of

the petitioner. On June 16, 2014, a revised Pension Payment Order was

prepared and issued to the petitioner.

6. The respondent No. 2 has given the reply highlighting the nature

of objections raised by the audit and their disagreement on the

explanation given by the respondent School, and insisting on compliance

of the objections so raised. The respondent No.2 has also stated about

recovery of Rs. 8,28,490/- effected from the leave encashment and

commutation of pension, and payment of Rs. 9,57,372/- and Rs.

4,46,867/-. According to the respondent No.2, some amount was also

claimed as interest against motor car advance.

7. The learned counsel for the petitioner would concede and

apologise for the incorrect stand taken by the petitioner in the writ

petition on the issuance of the Pension Payment Order dated July 31,

2013 to him. That apart, he would state that the respondents could not

have recovered the amount without issuing the show cause notice to him.

He would also state that the petitioner was in no way responsible for the

benefits given to him, which were the subject matter of the audit

objections. He would also state, the petitioner having retired, the

recoveries could not have been effected. He would rely upon the

judgments of the Supreme Court in the cases reported as AIR 2015

Supreme Court 696, State of Punjab and Others Vs. Rafiq Masih

(White Washer) etc. and judgment in Civil Appeal No. 5262/2008,

Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department and

Others, decided on April 17, 2014.

8. On the other hand, learned counsel appearing for the respondent

No. 2 would submit that the petitioner has not come to the Court with

clean hands and has made a false statement that the Pension Payment

Order dated July 31, 2013 was issued to him. She states, it was only

prepared by the office of the respondent but not issued to the petitioner.

The petitioner being the Registrar of the School at the relevant time had

taken advantage of his position to get a copy of the same, rely on it in the

petition. She seeks the dismissal of the writ petition on this ground

alone. That apart, she would state that there is no challenge to the merit

of the audit objections raised by the Directorate General of Audit

(C.R.Expenditure). She also states that the petitioner having given an

undertaking cannot now seek recovery of the amount already deducted

from the leave encashment/commutation of pension. According to her,

the undertaking was very explicit wherein, the petitioner has stated that

in the event of final decision for recoveries, the petitioner would be

liable to refund the amount which would be worked out by the School in

accordance with the Rules. She would also give the details of the

payments made and the recoveries effected. Insofar as the plea of the

petitioner that no show cause notice was given before effecting the

recoveries, she states that such an action was not required to be followed,

moreso, when the petitioner, being the Registrar himself was

corresponding with the Ministry on the objections raised by the Office of

the Directorate General of Audit and in that regard, she has referred to

page 297 of the paper book, which is a letter written by the petitioner to

the Under Secretary of the respondent No. 1. That apart, it is her case,

the very fact that the petitioner has himself given an undertaking,

authorizing the recovery, no show cause notice was required to be given.

9. Having heard the learned counsel for the parties, there is no denial

to the fact that the petitioner had given an undertaking, in the eventuality

of final decision for recoveries, he is liable to refund the amount, which

would be worked out by the School in accordance with the Rules. It is

also conceded by the learned counsel for the petitioner that the petitioner

has not challenged the merit of the audit objections. In other words, the

petitioner justifies the objections. The question would only be, in view

of the ratio of the judgment of the Supreme Court in the case of State of

Punjab and Ors. Vs. Rafiq Masih (White Washer) etc. (supra), more

specifically, in para 12, wherein the Supreme Court has held, recoveries

by the employers, would be impermissible in law in the following

situations:

                 " (i) XXX        XXX          XXX

                  (ii)    Recovery   from   retired   employees,    or

employees who are due to retire within one year, of the order of recovery;

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued".

                 (iv)    XXX        XXX          XXX
                 (v)     XXX        XXX          XXX"

In the case in hand, on a perusal of audit objections raised qua the

petitioner, same relates to the years 1994, 2001, 2009 and 2010.

10. It is also not in dispute that the petitioner had retired on July 31,

2014 and the audit objections are in excess of five years before the

recovery had actually been effected. The case of the petitioner falls in

the eventuality at serial No. (ii) and (iii) above. No doubt, undertaking

has been given by the petitioner, but, the same has to be considered from

the perspective of law laid down by the Supreme Court in the case of

State of Punjab and Ors. Vs. Rafiq Masih (White Washer) etc. (supra).

11. In view of the above discussion, the writ petition is to be allowed

to the limited extent that the Pension Payment Order dated June 16, 2014

is upheld, but, the recovery of the amount of Rs. 8,28,490/- is not

justified and the same is liable to be refunded to the petitioner after

adjusting the excess pension paid to the petitioner w.e.f. August, 2014.

The petitioner would not be entitled to the interest on the recovered

amount. At the same time, this Court, cannot overlook the conduct of

the petitioner in pursuing the writ petition, by making an incorrect/false

statement with regard to Pension Payment Order dated July 31, 2013

having been issued to him and annexing therewith a photocopy of the

same, as if he was in receipt of the same. It is also a settled law, that, if a

person has not approached the Court with clean hands, the petition

should be dismissed at the threshold, but, at the same time, this Court is

conscious of the fact that the petitioner herein is a pensioner who has

approached the Court against reduction in pension, and at the same time,

being conscious of the conduct of the petitioner, this Court is of the view

that the petitioner shall pay as costs Rs. 50,000/-, to be deposited with

Delhi High Court Legal Services Committee, which would act as a

deterrent to the litigants in general and petitioner in particular. The

payment which has been directed to be repaid to the petitioner shall be

released by the respondent No. 2-School only after the petitioner

produces the evidence of having deposited the costs of Rs. 50,000/- with

the Delhi High Court Legal Services Committee. A copy of this order be

sent to the Secretary, Delhi High Court Legal Services Committee.

12. The writ petition is allowed to the aforesaid extent and is disposed

of as such.

CM Nos. 8299/2014 (stay) & 16813/2014 (directions)

13. In view of the order passed in the writ petition, the present

applications are also disposed of as infructuous.

(V.KAMESWAR RAO) JUDGE

AUGUST 07, 2015 akb