Delhi High Court
Employees' State Insurance ... vs Dr. Bharti Jain on 23 December, 2019
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.12.2019
+ W.P.(C) 13601/2019
EMPLOYEES' STATE INSURANCE CORPORATION
..... Petitioner
Through: Ms. Nisha Hans & Mr. V.K.
Singh, Advs.
versus
DR. BHARTI JAIN ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
JUDGMENT
G.S.SISTANI, J. (ORAL)
CM APPL. No. 54986/2019 (exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 13601/2019 & CM APPL. No. 54985/2019 (stay)
Learned counsel for the petitioner submits that the respondent
was overpaid due to erroneous fixation of salary at the time when the
respondent sought retirement under the Voluntary Retirement Scheme
(VRS). This inadvertent error was later sought to be corrected and the
excess amount paid was deducted from her gratuity.
2. Reliance is placed on judgment dated 17.08.2012 rendered by
the Supreme Court in a case titled Chandi Prasad Uniyal & Ors. vs.
W.P.(C) 13601/2019 page 1 of 5
State of Uttarakhand & Ors., C.A. No. 5899/2012, more particularly
para 16 of that judgment, in support of the contention that any amount
paid or recieved without authority of law can be recovered.
3. Relevant facts are that the respondent was engaged as an
Insurance Medical Officer (IMO) Grade-II with the ESIC on
contractual basis on 30.11.1987 vide Memorandum dated 17.06.1991 ;
and was thereafter appointed on regular basis from 27.06.1991. The
petitioner sought VRS in the year 2015. It is the case of the petitioner
that at that stage it was noticed that the respondent had been paid in
excess of the salary payable to her ; and an amount of Rs.7,27,499/-
was accordingly recovered from her gratuity, which forced the
respondent to file an O.A. No. 3491/2016, which has been allowed by
the Tribunal and has led to filing of the present petition.
4. In the OA the respondent herein had averred that she had relied
upon an Office Memorandum No. 28016/5/85 dated 31.01.1986; and
on the basis of para 3 of that OM, she had negotiated her salary on the
ground that she was already drawing grade pay of Rs.8700/- and thus
she should be continued in the same grade pay, moreso when the post
of 'Specialist' carried higher duties and responsibilities.
5. The respondent herein had submitted before the Tribunal that
for the above reasons, the ESIC had agreed to grant a higher pay scale
to her and she was accordingly paid a grade pay of Rs.8700/- from
2009 till she took voluntary retirement in the year 2015. In support of
this contention, copies of pay slips were filed alongwith the O.A.
6. Another ground urged by the respondent herein before the
Tribunal was that all persons who were appointed as Specialists and
W.P.(C) 13601/2019 page 2 of 5
opted to join were absorbed in the higher grade-pay, which was made
personal to them, in case they were drawing a higher pay in the earlier
post. The difference of pay-scale allowed was personal to them and
was also required to be observed for future increase in pay. She also
submitted that her grade-pay did not undergo any future revision from
the year 2009 till her VRS was accepted on 15.02.2015.
7. Learned counsel for the petitioner on the other hand submits
that there is nothing on record to show that the petitioner entered into
any negotiation with the respondent for fixation of her grade-pay at
Rs.8700/-.
8. We have heard learned counsel for the parties and have
considered their rival submissions.
9. We are however unable to accept the submissions of the
petitioner firstly, for the reason that there is no cogent explanation as
to why the respondent continued to draw a pay of Rs.8700/- from the
year 2009 till 2015. Thus, there evidently is truth in the averment
made by the respondent before the Tribunal that she had negotiated
her salary in terms of OM No. 28016/5/85 dated 31.01.1986.
10. Moreover, the Tribunal has rightly relied upon a decision in the
case titled State of Punjab & Ors. vs. Rafiq Masih (White Washer)
and Others reported as (2015) 4 SCC 334, the relevant para of which
is reproduced below :
"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
W.P.(C) 13601/2019 page 3 of 5
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) xxxxx
(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) xxxxx
(v) xxxxx "
11. We also deem it appropriate to reproduce para 13.1 of the
decision of the Tribunal which reads as under :
"13.1 It is not disputed that the applicant had applied for
the post of Specialist Grade-II, Jr. Scale (Radiology) and
after due process of selection was appointed to the said
post on 24.03.2009. The applicant was working in PB-IV
with Grade Pay of Rs.8700/- when she applied for the
post of Specialist Grade-II. The applicant has submitted
that at the time of joining, she negotiated her salary in
terms of Para-3 of the O.M. issued by Department of
Personnel & Training on 31.01.1986, which states that:-
"Pay Fixation:
A Government servant selected for a post in
a Central Public Enterprise will be free to
negotiate his emoluments with the enterprise. On
appointment to a post in a public sector enterprise
on immediate absorption basis, a Government
W.P.(C) 13601/2019 page 4 of 5
servant will be at par with other employees of the
enterprise and will be governed by the rules of the
enterprise in all respects."
Due to her negotiation, the respondents agreed
that she could draw Grade Pay of Rs. 8700/- (which she
was already drawing when she joined the respondents
Corporation) which would be personal to her. This fact
has been denied by the respondents, who state that such
an agreement never took place between the applicant and
the respondents."
12. In view of the above discussion and for the reasons stated
above, more particularly the decision rendered by the Supreme Court
in the case of Rafiq Masih (White Washer) and Others (supra), we
find no infirmity in the order passed by the Tribunal.
13. Accordingly no ground is made-out to entertain this petition.
14. The present petition and the pending application are therefore
dismissed.
G.S.SISTANI, J.
ANUP JAIRAM BHAMBHANI, J.
DECEMBER 23, 2019/uj
W.P.(C) 13601/2019 page 5 of 5
