Delhi High Court
Union Of India And Anr vs Gulshan Raj And Ors on 6 January, 2021
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11015/2020
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr. Arun Bhardwaj, CGSC.
versus
GULSHAN RAJ & ORS. ..... Respondents
Through: Mr.M.K. Bhardwaj, Advocate.
% Date of Decision: 06th January, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed challenging the order dated
30th November, 2018 passed by the Central Administrative Tribunal
(hereinafter referred to as the 'CAT') in O.A.No.1502/2018. The
relevant portion of the said order is reproduced hereinbelow:- 3, 8
"3. The applicants relied upon a judgment in OA
No.497/2015 delivered on 01.08.2017 on exactly similar
matter wherein the recoveries were quashed. The judgment
in this OA has also relied upon another judgment in t he case
of Shri J.S. Sharma and others Vs. Union of India and
another, OA No.363/2012, decided on 05.02.2013, wherein
also exactly similar issue was raised and the Tribunal, vide
order dated 05.02.2013, held that no recovery can be made
towards the transport allowance already paid. This judgment
was challenged by the respondents in the Hon'ble High Court
in Writ Petition (Civil) No.5555/2013 decided on 04.09.2013.
The order of the Tribunal was upheld by the Hon'ble High
Court. Thus recovery of transport allowance was not
permitted.
xxx xxx xxx
8. I find that the applicants have not misrepresented any
fact, nor was it in their knowledge that they were drawing
transport allowance in excess of their entitlement as it was
sanctioned by the respondents only. Hence, I am of the view
that their case is fully covered by the judgment of the Hon'ble
High Court in J.S. Sharma (para 3 supra)."
2. After hearing the parties at some length, this Court finds that the
issue involved in the present writ petition is no longer res integra as
admittedly, an identical issue has been decided by this Court against
the appellant on 04th September, 2013 in Union of India & Anr. Vs.
JS Sharma & Ors. W.P.(C) No.5555/2013. The relevant portion of
the said order is reproduced hereinbelow:-
"2. The facts in which the present issue arose are that for
commuting between office and residence. Officers of the level
of Joint Secretary and above are provided with the facility of
staff car on prescribed payment basis (under Office
Memorandum No. 20(5)- E.II(A)/93 dated 28th January,
1994). They have the option to switch over to payment of
transport allowance, at applicable rates subject to the facility
of staff car being withdrawn. The respondents who were
Group A Officers, were drawing pay at par with an officer of
the post of Joint Secretary. However, the respondents reached
that level of pay scale on the grant of non-functional upgrade
(under Officer Order No. 30/26/2010-EC-EW-1 dated 3rd
February, 2011). This upgrade was in pursuance of Office
Memorandum (OM) No. AB.14017/64/ 2008-Estt.(RR) dated
24th April, 2009 of the DoPT, which recommended / directed
such non-functional upgrade. Since the pay grade of the
respondents was at par with that of officers of the level of Joint
Secretary - as a consequence of the grant of the non functional
upgrade - they were being allowed transport allowances at the
rate of Rs.7,000/- + D.A. from the dates from which they were
conferred the upgrade.
3. The said allowances were sought to be withdrawn by the
petitioners (by OM dated 23rd September, 2011) on the
ground that it was not payable to officers who were granted
grade pay of Rs.10,000/- under Non-Functional Upgradation
Scheme and that the facility of official car was available only
to those who were covered by OM dated 28th January, 1994.
The over-payment of the transport allowance was sought to be
recovered from the said officers / respondents herein by way of
individual notices dated 5th October, 2011.
xxx xxx xxx
9. Furthermore, this court is of the opinion that the case of the
grade pay officers falls in the exceptional category - which
exception even the Chandi Prasad Uniyal case recognized the
existence of - that would have the benefit of the ratio of Syed
Abdul Qadir (supra):
"57. This Court, in a catena of decisions, has granted
relief against recovery of excess payment of
emoluments/allowances if (a) the excess amount was not
paid on account of any misrepresentation or fraud on
the part of the employee, and (b) if such excess payment
was made by the employer by applying a wrong
principle for calculating the pay/allowance or on the
basis of a particular interpretation of rule/order, which
is subsequently found to be erroneous.
"58. The relief against recovery is granted by courts not
because of any right in the employees, but in equity,
exercising judicial discretion to relieve the employees
from the hardship that will be caused if recovery is
ordered. But, if in a given case, it is proved that the
employee had knowledge that the payment received was
in excess of what was due or wrongly paid, or in cases
where the error is detected or corrected within a short
time of wrong payment, the matter being in the realm of
judicial discretion, courts may, on the facts and
circumstances of any particular case, order for recovery
of the amount paid in excess. See Sahib Ram v. State of
Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S)
248], Shyam Babu Verma v. Union of India [(1994) 2
SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] ,
Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996
SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6
SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara
(Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1
SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar
(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab
National Bank v. Manjeet Singh [(2006) 8 SCC 647 :
(2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur
[(2000) 10 SCC 99 : 2000 SCC (L&S) 394]."
10. Having considered the arguments and the facts of the case
and the ratio of Syed Abdul Kadir case, this Court finds no
reason to interfere with the impugned order. The petition is
without merit and is accordingly dismissed."
3. Consequently, following the earlier Division Bench judgment of
this Court in Union of India & Anr. vs. JS Sharma & Ors. (supra),
the present writ petition is also dismissed.
4. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
JANUARY 06, 2021
KA
