Delhi High Court
Union Of India And Anr vs S P Singh And Ors on 6 January, 2021
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 23/2021 & CM APPLs. 70-72/2021
UNION OF INDIA & ANR. ..... Petitioners
Through: Mr. Arun Bhardwaj, CGSC.
versus
S P SINGH AND 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
28th September, 2018 passed by the Central Administrative Tribunal
(hereinafter referred to as the 'CAT') in O.A.No.1882/2015. The
relevant portion of the said order is reproduced hereinbelow:-
"4. Mr. M.K. Bhardwaj, learned counsel for applicants
submits that the controversy involved in this O.A. is
squarely covered by the order of this Tribunal dated
01.08.2017 in O.A. No.497/2015 (Dileep Kumar Jain &
others v. Union of India & another) and this O.A. could
also be disposed of in terms of the said order.
xxx xxx xxx
6. I have perused the ibid order of the Tribunal. The
applicants therein were Chief Engineers working in
Central Electricity Authority (CEA) - Government of
India entity. They had also been paid TA @ Rs.7000/- +
DA thereon, and in their context also, the CEA had
ordered recovery. The Tribunal took a view that the
applicants therein had not indulged into any act of
misrepresentation in securing the TA at a higher rate.
Accordingly, the Tribunal held that no recovery should be
made from the applicants in respect of any excess payment
made to them towards TA and that they could be paid TA
@ Rs.3200/- + DA thereon from the date of issuance of
the order by CEA in regard to their entitlement for TA.
7. I find that the issues involved in this O.A. are
squarely covered by the aforementioned order of the
Tribunal. The applicants herein are also working as
Chief Engineers in CWC. They have also been paid
excess TA and have been subsequently directed to refund
the excess payment vide order dated 07.04.2014
(Annexure A-1)."
2. Mr.M.K.Bhardwaj, learned counsel for the respondents, who
appears on advance notice, states that the writ petition filed by the
Union of India challenging the judgment and order of the Tribunal
dated 01st August, 2017 in O.A.No.497/2015 has been dismissed by
this Court vide judgment and order dated 23rd October, 2019 in
W.P.(C) No.7920/2018.
3. After hearing the parties at some length, this Court also 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."
4. Consequently, following the earlier Division Bench judgment of
this Court in Union of India & Anr. vs. J S Sharma & Ors. (supra),
the present writ petition along with pending applications are also
dismissed.
5. 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
