Delhi High Court
Union Of India & Anr. vs D.C. Murmu on 24 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 7837/2002
% Date of Judgment: 24th November, 2016
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr. Jaswinder Singh, Advocate.
Versus
D.C. MURMU .... Respondent
Through: Mr. S.C. Soren, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. Rule DB was issued in this matter on 20.07.2004.
2. The challenge in this writ petition is to the orders dated 08.02.2002
and 11.09.2002 passed by Central Administrative Tribunal (briefly the
'Tribunal'). Before we notice the facts of the case and the rival
submissions made by the learned counsel for the parties; we may
notice that the respondent has since retired from the service. It may
further be noted that the quantum involved in the present writ petition
is Rs. 23,800/-, which stands paid to the respondent on 18.10.2002.
3. In this case, the respondent had approached the Tribunal primarily
seeking two reliefs:
(i) Promotion; and
(ii) Non-payment of special allowances.
4. The relief with regard to promotion stands rejected by the Tribunal
and the decision stands accepted by the respondent. On the other
ground, the Tribunal has allowed the O.A. and held that since the
respondent was performing the duties of a Tradesmen Grade-I, he was
entitled to officiating pay for the post as he had shouldered higher
responsibilities. The Tribunal had placed reliance upon the judgment
of the Supreme Court in Democratic Rights v. Union of India, 1982
(3) SCC 235.
5. Learned counsel for petitioner submits that the Tribunal has failed to
take into consideration that the respondent was holding the post of
Assistant Grade-II (Fork Lift Operator) in the scale of Rs.3050-4590
in the office of the respondent and his post is a non-technical post. He
was deployed on operation at the coining press, which is assigned to
both Tradesmen and Non-Tradesman, working as Assistant Grade-III
(Rs.2650-4000), Assistant Grade-II (Rs.3050-4590) and Assistant
Grade-I and Junior Technical (Rs.4000-6000), which are lower,
equivalent and higher to the post of the respondent herein, who was
Assistant Grade-II in the scale of Rs.3050-4590.
6. The submission of Mr. Jaswinder Singh, counsel for petitioner, is thus,
that the operation of coining press is not related to any particular
grade, post or trade and no extra remuneration or honorarium is being
paid to any worker engaged in the same. He submits that a list of
workmen (Tradesmen and Non-Tradesmen) possessing the post lower
or equivalent than the respondent and are engaged on operation of the
coining press had been filed before the Tribunal.
7. Learned counsel for the petitioner submits that although the amount
involved is only Rs. 23,800/-, but similar situated persons may also
claim such relief, which would cause prejudice to the rights of the
petitioner. It is submitted that after the impugned order was passed,
the petitioner had sought review, which was summarily rejected
without looking into the questions raised by the petitioner.
8. Learned counsel for respondent submits that the respondent has retired
and the amount stands credited to his account and once the respondent
having retired the amount cannot be recovered from him. Reliance is
placed on, State of Punjab & Others v. Rafiq Masih (White Washer)
& Others, (2015) 4 SCC 334 in respect of his submission that the
recovery from the retired employees and employees, who are due to
retire within one year, the order of recovery should not be carried out.
9. We have heard the learned counsel for the parties and considered their
rival submissions.
10. The submissions, which are sought to be raised by the learned counsel
for the petitioner do not find noticed in the impugned order and we are
not inclined to entertain fresh grounds in these proceedings. Mr.
Jaswinder Singh submits that the grounds sought to be urged before
this court were also raised in the review application, but the same were
not considered.
11. In Rafiq Masih (Supra), the Supreme Court enumerated
circumstances when recovery cannot be effected against employees.
The Supreme Court had summarized the situations as under:
"18. 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 employer, in excess of their entitlement. Be that as it
may, based on the decisions referred to hereinabove, we
may, as a ready reference, summarise the following few
situations, wherein recoveries by the employers, would
be impermissible in law:
(i) Recovery from the employees belonging to Class
III and Class IV service (or Group C and Group D
service).
(ii) Recovery from the retired employees, or the
employees who are due to retire within one year, of
the order of recovery.
(iii) Recovery from the 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
though he should have rightfully been required to
work against an inferior post.
(v) In any other case, where the court arrives at the
conclusion, that recovery if made from the employee,
would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of
the employer's right to recover."
(Emphasis Supplied)
12. In the present case, the Tribunal was persuaded to allow the O.A. on
the ground as stated in paras 4 and 5 of the order dated 08.02.2002,
which read as under: -
"4. In our considered view, once the respondents have
assigned the duties of Machine Operator to the applicant
he continued to perform the same having requisite
qualification of technical job, he cannot be deprived of
the officiating pay for the post as he has shouldered
higher responsibility. Respondents should have taken off
the applicant from technical duties and have assigned
him duty as per his eligibility and qualification. As a
non-trade man there is no question of technical duties to
be performed by the applicant.
5. In this view of the matter, we direct the
respondents to pay to the applicant officiating pay for the
period from October, 1996 till he has performed the
duties of technical nature within a period of 3 months
from the date of receipt of a copy of this order with all
consequential benefits. It is, however, open to the
respondents to take off the applicant from performing
such duties in accordance with law. OA is disposed of
accordingly. No costs."
(Emphasis Supplied)
13. Having regard to the peculiar facts of the case and taking into account
that the issue pertains to a period between the years 1996 to 2002, the
respondent having been retired, amount involved being very meagre,
we are not inclined to interfere with the order passed by the Tribunal.
However, the question of law raised by the petitioner is kept open and
the decision would not be treated as a precedent.
14. The writ petition is disposed of in above terms.
G. S. SISTANI, J.
VINOD GOEL, J.
NOVEMBER 24, 2016
//"sk"
