Head Constable Dalel Singh vs Union Of India & Ors
2016 Latest Caselaw 1893 Del

$~R-61
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 21285/2005

      HEAD CONSTABLE DALEL SINGH             ..... Petitioner
                  Through: Mr. O.P. Aggarwal, Advocate with
                       Mr. Deepak Agarwal, Advocate

                         versus
      UNION OF INDIA & ORS                    .....Respondents
                    Through: Dr. Ashwani Bhardwaj, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
      HON'BLE MR. JUSTICE SUNIL GAUR

                          ORDER

% 09.03.2016

1. The present petition has been filed by the petitioner praying inter alia

for a writ of certiorari, thereby quashing the order dated 14.1.2005 issued by

the Respondents No. 2-5/CISF granting him annual increment on completion

of satisfactory service, for one year and enhancing his pay from Rs.3880/- +

Rs. 75/- (FPA), as was being drawn till 01.1.2004, to Rs. 3,965/- + Rs. 75

(FPA) payable with effect from 01.1.2005/10.1.2005. Further, the petitioner

seeks restoration of his salary to Rs.4,135/-, with effect from 01.1.2004, on

the ground that same was wrongly brought down to Rs.3,880/- from

November 2004.

2. The brief facts of the case are that the petitoner had joined as a

Constable in CISF in April, 1981 and after completion of training, he was

posted as a Constable in June, 1986. W.e.f. 1.1.1986, the petitioner's pay

was fixed in the revised scale at Rs.870/- w.e.f 01.1.1986. In the year 1987,

the petitioner was granted leave for 28 days between 09.3.1987 to 05.4.1987.

But, he overstayed for 52 days and was awarded punishment of 7 days fine.

On 31.10.1988, the petitioner was awarded censure on the ground that he

was found sleeping while on duty. It is the respondent's version that on

account of the punishment inflicted on the petitioner, he did not cross the

efficiency bar during the year 1988, 1989 and 1990 and was able to clear the

efficiency bar only in the year 1991, when he was awarded an annual

increment which fact has not been disputed by the petitioner.

3. The rub lies in the implementation of the 5th Pay Commission

Recommendations dated 01.1.1996, when the petitoner's pay was

erroneously fixed at Rs.3,275/-. As per the respondents, the aforesaid error

came to the notice of the department in the year 2004 and steps were taken to

rectify the same by issuing an order dated 16.4.2005, directing recovery of

the excess amount paid to the petitioner which was to the tune of

Rs.31,015/-. Vide order dated dated 16.4.2005, the petitioner and the other

officers were informed by the respondents that on checking the records, it

had transpired that over payments have been made to them that were

required to be recovered from their salaries, effective from the year 2005 as

per the figures mentioned in the respective columns against their names. The

petitioner's name features at Sr.No.11 of the captioned order and the

installment proposed to be recovered from his salary was fixed at Rs.1,945/-

p.m.

4. Learned counsel for the petitioner submits that the issue with regard to

the validity of an order of recovery of excess amount paid by an employer

to an employee stands settled in the light of a recent decision of the Supreme

Court in the case of State of Punjab and Others etc. vs. Rafiq Masih (White

Washer) etc. reported as AIR 2015 SC 696, wherein the Court had the

occasion to examine as to whether the order passed by an employer seeking

recovery of the monetary benefit wrongly extended to employees can only be

interefered with, in cases where such recovery would result in a hardship of a

nature, which would far outweigh the equitable balance of the employer's

right to recover, or whether other parameters must be considered before

permiting recovery of payments. After examining several decisions on

situations where High Courts all over the country had repeteadly set aside

orders of recovery made on different parameters, the entire issue was

crystallized in para 12 of the judgment in the following manner:-

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employers, in excess of their entitlement. Be that as it may, based on the decisions hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the empooyers, would be impermissible in law:-

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(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) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even thought he should have rightfully been equired to work against an iniferior post.

(v) In any other case, where the Court arrives at the conclusions, the recovery if made from the employee, would be iniquitous or harsh or arbitrary to such na extent, as would far oughweigh the equitable balance or the employer's right to recover."

5. Learned counsel for the petitioner submits that the petitioner's case

would squarely fall in the situations envisaged in clause (i) & (iii) above, as

the petitioner admittedly belongs to class III service and excess payment had

been made to him for a period spreading over eight years before the order of

recovery came to be issued and that too, for no fault that could be

attributable to him.

6. We are inclined to agree with the submissions made by learned

counsel for the petitioner. Undoubtedly, the error in calculating the benefit

payable under the 5th Pay Commission was made by the respondents, for

which the petitioner cannot be blamed in any manner. Payments were made

to the petitioner in terms of the salary fixed by the respondents effective

from 01.1.1996 and the said error came to the respondents' notice only in the

year 2004, i.e. after the passage of almost eight years and the same was

sought to be rectified by passing the order dated 16.4.2005. The action of the

respondents in ordering recovery of monthly installments from the salary of

the petitioner who is a class III employee and that too after eight years,

would be grossly unfair to him, apart from being extremely harsh and

arbitrary as he could in no way be held responsible for the excess amount

paid mistakenly by his employer.

7. We are therefore, of the opinion that any correction in the mistake

sought to be made by the respondents would have to be prospective, i.e. from

the date of issuance of the order dated 16.4.2005, but for the period anterior

thereto, the respondents cannot be permitted to effect recovery of the excess

amount to the tune of Rs.31,015/-, from the salary of the petitioner.

Accordingly, the order dated 16.4.2005, issued by the respondents directing

recovery of a sum of Rs.31,015/- from the salary of the petitioner on a

monthly basis is quashed and set aside. However, corrections made by the

respondents in the petitioner's pay and allowances in terms of the

Recommendations of the 5th Pay Commission are maintained. Any part of

the excess amount recovered from the salary of the petitoner prior to passing

of the interim order dated 11.11.2005, shall be reversed into his account

within a period of eight weeks from today, failing which it shall carry

interest @ 8% per annum.

8. The petition is disposed of, while leaving the parties to bear their own

costs.

HIMA KOHLI, J

SUNIL GAUR, J MARCH 09, 2016 ap/mk/rkb