Delhi High Court
National Council For Cement Building ... vs Pardeep Kumar And Ors on 9 April, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~3 TO 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09.04.2025
+ W.P.(C) 17342/2024 & CM APPL. 73812/2024, CM APPL.
73813/2024
NATIONAL COUNCIL FOR CEMENT BUILDING
MATERIALS .....Petitioner
Through: Mr.Suresh Tripathy &
Mr.Srikrishnan, Advs
versus
PARDEEP KUMAR AND ORS .....Respondents
Through: Mr. Rahul Raj Mishra &
Mr.Prashant Karan, Advs
Ms.Shagun Shahi Chugh &
Ms.Nandita Mishra, Advs for
R-7/UOI.
Mr.Vedansh Anand, GP
+ W.P.(C) 17356/2024 & CM APPL. 73900/2024, CM APPL.
73901/2024, CM APPL. 15426/2025
NATIONAL COUNCIL FOR CEMENT AND BUILDING
MATERIALS .....Petitioner
Through: Mr.Suresh Tripathy &
Mr.Srikrishnan, Advs.
versus
ANITA CHOPRA AND ORS. .....Respondents
Through: Mr. Rahul Raj Mishra &
Mr.Prashant Karan, Advs
Mr.Piyush Beriwal,
Mr.Vedansh Anand, Mr.Nikhil
Kumar Chaubey, Ms.Jyotsna
Vyas & Mr.Rohit Yadav, Advs
for R-6
Signature Not Verified
Digitally Signed W.P.(C) 17342/2024 & CC Page 1 of 13
By:RENUKA NEGI
Signing Date:16.04.2025
11:28:01
+ W.P.(C) 17370/2024 & CM APPL. 73965/2024, CM APPL.
73966/2024
NATIONAL COUNCIL FOR CEMENT BUILDING
MATERIALS .....Petitioner
Through: Mr.Suresh Tripathy &
Mr.Srikrishnan, Advs.
versus
SHRI SATISH KUMAR AGARWAL AND ORS
.....Respondents
Through: Mr. Rahul Raj Mishra &
Mr.Prashant Karan, Advs
Ms.Shagun Shahi Chugh &
Ms.Nandita Mishra, Advs for
R-7/UOI.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (ORAL)
1. This application has been filed by respondent no.6 for marking
his appearance in the Order dated 27.02.2025.
2. The application is allowed. The name of Mr.Piyush Beriwal be
reflected in the Order dated 27.02.2025 as appearing for respondent
no.6.
W.P.(C) 17342/2024 & CM APPL. 73812/2024, CM APPL.
W.P.(C) 17356/2024 & CM APPL. 73900/2024, CM APPL.
W.P.(C) 17370/2024 & CM APPL. 73965/2024, CM APPL.
3. These petitions have been filed challenging the Order dated
11.11.2024 passed by the learned Central Administrative Tribunal,
Principal Bench, New Delhi (hereinafter reyferred to as the "learned
Tribunal") in Original Application (OA) No. 1842/2022, titled
Pardeep Kumar & Ors. v. Union of India & Ors.; O.A. No.
2902/2022, titled Anita Chopra & Ors. v. Union of India & Ors.; and
O.A. No. 1440/2022, titled Satish Kumar Agarwal & Ors. v. Union
of India & Ors., allowing the OAs filed by the respondents herein,
with the following direction:
"8.1. This Tribunal is of the considered view
that the present OAs deserve to be allowed,
keeping in view the fact that no recovery can
be effected from an employee without giving
any show cause notice. Respondents are,
therefore, directed to refund the amount, if
any, already recovered, which has been
wrongly adjusted against the retiral dues,
contrary to the aforesaid proposition of law.
The Respondents are directed to pay the
applicants all the retirement/ service benefits
including Gratuity/ Ex- gratia on Gratuity as
per the relevant rules. The consequential
relief(s) shall follow thereof. These directions
shall be complied with by the respondents
within a period of two months from the date of
receipt of a certified copy of this order, failing
which the applicants shall also be entitled to
interest at GPF rates till the date of actual
payment."
4. As common submissions have been made by the learned
counsels for the parties, we herein narrate the brief background of the
facts giving rise to the present petitions from WP(C) 17356/2024.
5. The respondents were issued Recovery Notices dated
07.10.2020 by the petitioner, claiming therein that the respondents had
elected to be paid as per the Pay Structure based on the 7th Central Pay
Commission (in short, '7th CPC'). The applicability of the Revised
Pay Structure to the employees of the petitioner was subject to certain
conditions, whereby the petitioner was to align all service conditions,
pay, and allowances with the Government of India Rules before such
implementation.
6. The petitioner claims that an excess payment has been made to
the respondents on implementation of the Pay Structure of the 7th
CPC, which is to be recovered from the respondents.
7. The petitioner, therefore, vide notice dated 07.10.2020 called
upon the respondents to make the payment of the alleged excess
amount received by them, within 30 days from the receipt of the
Recovery Notice. The respondents made representations against the
said Recovery Notice, however, without considering their
representations, the demand was reiterated by Notices dated
07.10.2020/03.11.2020 without giving any reasons for the rejection of
the representations.
8. Aggrieved by the Recovery Notices, the respondents
approached the learned Tribunal by way of the above-mentioned OAs.
9. As noted hereinabove, the learned Tribunal has allowed the
above OAs, specifically taking note of the fact that no Show Cause
Notice was issued to the respondents before passing the Impugned
Recovery Notices, and even the representations were not considered
and were rejected on the same date.
10. The learned counsel for the respondents submits that
representation was rejected and the recovery demand reiterated by the
petitioners vide order dated 07.10.2020, on which now, as per
Annexure-P1/3, a date of 03.11.2020 has been added thereto.
11. Be that as it may, even the said Letter does not contain any
reasons, leave alone any consideration of the representation made by
the respondents.
12. The learned Tribunal, therefore, allowed the OAs and set aside
the Recovery Notices. It further directed that any amount adjusted
against the retiral dues of the respondents shall be refunded to the
respondents.
13. The learned counsel for the petitioner submits that the learned
Tribunal has failed to appreciate that the respondents, while availing
the benefit of the 7th CPC, had given an undertaking that, in case it is
found that an excess payment has been made to them, the same shall
be duly refunded by the respondents. He submits that, therefore, the
respondents had already been put to notice that any excess amount
paid to them shall be duly recovered from them. There was no need
for a separate notice to be issued to the respondents. In support of his
plea, he also places reliance on the Judgment of the Supreme Court in
High Court of Punjab & Haryana & Ors. v. Jagdev Singh, (2016) 14
SCC 267.
14. On the other hand, the learned counsels for the respondents
submits that the undertaking given by them cannot be used by the
petitioners to seek recovery of amounts from their retiral benefits post
their superannuation and that too without issuing any Show Cause
Notice or giving them an opportunity to be heard. In fact, the
Impugned Orders, in their submission, do not even give any reasons
for the claim of the petitioners that an excess amount has been paid to
the respondents. In support of their submission, they have also placed
reliance on the Judgment of the Supreme Court in Jogeshwar Sahoo
& Ors. v. The District Judge, Cuttack & Ors., 2025 INSC 449.
15. We have considered the submissions made by the learned
counsels for the respondents.
16. The Recovery Notice dated 07.10.2020 issued by the petitioners
to the respondents did not give any reasons to the respondents for
claiming that an excess amount has been paid by the petitioners to the
respondents pursuant to the implementation of the 7th CPC. It simply
calls upon the respondents to make the payment of the alleged excess
amount paid to them. A sample copy of the Letter is reproduced
hereinunder:
"Ref No: PER/3.410
Date: 07 October 2020
Mrs Anita Chopra
45/6, 3 Floor, East Patel Nagar
Delhi-110008
Subject: Recovery of excess payment made
during implementation of 7 Control Pay
Commission for Superannuated NCCBM
Officials
Dear Sir,
Kindly take notice that after retiring
froes the service of the National Council for
Cement & Building Materials (NCCBM) w.e.f
31 January 2018, you were paid all retiral
benefits immediately as per the then existing
rules. As per the record, during the month of
April/May 2018, you had elected to be paid as
per the pay structure based on 7 CPC. The
applicability of revised pay structure to the
employees of NCCBM was subject to certain
conditions whereby the NCCBM was to align
all service conditions, pay & allowances, with
the GOI rules before such implementation.
It has been noticed that the payment of
arrears of pay, DA etc of Rs 476380/- has
been made to you in excess on implementation
of play structure of 7th CIC. In the light of the
above and the undertaking given by you at the
time of electing the revised pay structure, the
excess payment made to you is to be
recovered.
Accordingly, the undersigned is hereby
directed to inform you through this notice to
refund amount of Rs.426980/- with 30 days of
the receipt of this letter. In case you wish to
make any representation regarding recovery
of excess payment the same should reach the
undersigned within 10 days of the receipt of
this letter.
Please be informed that failure to comply with
this notice will render you liable to all
consequences, including levy of penal interest.
Yours faithfully
for National Council for Cement and
Building Materials
Hese-RS (PER)"
17. The respondents represented against the said demand, however,
by Letters dated 07.10.2020/03.11.2020, the said representation was
rejected without giving any reasons for the same, and the demand was
reiterated. A sample copy of the said Letter is reproduced herein:-
"Ref No: PER/3.410
Date: 07 October
2020/03 Nov 2020
Mrs Anita Chopra
45/6, 3 Floor, East Patel Nagar Delhi-110008
Subject: Recovery of excess payment made
during implementation of 7th Central Pay
Commission for Superannuated NCCBM
Officials
Dear Madam,
This has reference to your representation in
response to our letter dated 07 October 2020
regarding recovery of excess payment made to
you on implementation of 7 CPC
The break-up of retirement benefits paid to
you is as under:
Name GRATUITY EX SICK LEAVE HRA
AMT PAID GRATIA ENCASHMENT COMPONENT
PAID PAID ON PL
ENCASHMENT
PAID
ANITA
CHOPR
A
The payments of Gratuity above notified
government limit (if any) and Ex-gratia on
gratuity, as per then existing NCB rules, were
ever and above the payments entitled to
government employees on retirement.
Accordingly, you informed vide our letter
dated 07 October 2020 to refund the payment
of arrears of pay, DA etc paid as excess
amount. You are again requested to within one
month of receipt of this letter. refund the
excess
Yours faithfully,
for National Council for Cement
and Building Materials
Head-HRS (PER)"
18. The demand was further reiterated by the petitioner vide Letter
dated 13.11.2020, and thereafter, recoveries were made from the
retiral dues of the respondents.
19. Only because the respondents have given an undertaking that in
case any excess amount had been paid on the implementation of the
7th CPC, they would be bound to return the same, in our view,
recovery could not have been made from the retiral dues of the
respondents much after their retirement. It is to be noted that, as
claimed by the learned counsel for the petitioner, the undertakings are
said to have been given by the respondents before their
superannuation.
20. In case any excess amount was paid to the respondents, the
same should have been claimed from the respondents prior to their
superannuation. The Impugned Recoveries were sought to be made
much beyond the date of superannuation of the respondents. In similar
facts, the Supreme Court in Jogeshwar Sahoo (supra), has held as
under:
"9. This Court has consistently taken the view
that if the excess amount was not paid on
account of any misrepresentation or fraud on
the part of the employee or 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, such
excess payments of emoluments or allowances
are not recoverable. It is held that such relief
against the recovery is not because of any
right of the employee but in equity, exercising
judicial discretion to provide relief to the
employee from the hardship that will be
caused if the recovery is ordered.
xxxxxx
11. In Col. B.J. Akkara (Retd.) v. Government
of India2 this Court considered an identical
question as under:
"27. The last question to be considered
is whether relief should be granted
against the recovery of the excess
payments made on account of the wrong
interpretation/understanding of the
circular dated 7-6-1999. This Court has
consistently granted relief against
recovery of excess wrong payment of
emoluments/allowances from an
employee, if the following conditions are
fulfilled (vide 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] and V. Gangaram v. Regional Jt.
Director [(1997) 6 SCC 139: 1997 SCC
(L&S) 1652]):
(a) The excess payment was not made
on account of any misrepresentation or
fraud on the part of the employee.
(b) 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.
28. Such relief, restraining back
recovery of excess payment, is granted
by courts not because of any right in the
employees, but in equity, in exercise of
judicial discretion to relieve the
employees from the hardship that will be
caused if recovery is implemented. A
government servant, particularly one in
the lower rungs of service would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess payment for a long period, he
would spend it, genuinely believing that
he is entitled to it. As any subsequent
action to recover the excess payment
will cause undue hardship to him, relief
is granted in that behalf. But where the
employee had knowledge that the
payment received was in excess of what
was due or wrongly paid, or where the
error is detected or corrected within a
short time of wrong payment, courts will
not grant relief against recovery. The
matter being in the realm of judicial
discretion, courts may on the facts and
circumstances of any particular case
refuse to grant such relief against
recovery.
29. On the same principle, pensioners
can also seek a direction that wrong
payments should not be recovered, as
pensioners are in a more
disadvantageous position when
compared to in-service employees. Any
attempt to recover excess wrong
payment would cause undue hardship to
them. The petitioners are not guilty of
any misrepresentation or fraud in
regard to the excess payment. NPA was
added to minimum pay, for purposes of
stepping up, due to a wrong
understanding by the implementing
departments. Therefore of the view that
the respondents We are shall not
recover any excess payments made
towards pension in pursuance of the
circular dated 7-6-1999 till the issue of
the clarificatory circular dated 11-9-
2001. Insofar as any excess payment
made after the circular dated 11-9-
2001, obviously the Union of India will
be entitled to recover excess as the
validity of the said circular has been
upheld and as pensioners have been put
on notice in regard to the wrong
calculations earlier made."
21. In Jagdev Singh (supra), the Supreme Court was considering a
case where the recovery was sought to be made almost immediately
after the undertaking had been given by the respondent therein. The
Revised Pay Scale based on the undertaking was granted to the
respondent on 07.01.2002, and the Recovery Notice was issued on
18.02.2004. In the present case, the alleged undertakings were given
by the respondents in the year 2016, while the recovery has been
sought to be made in the year 2020, much after the respondents had
already superannuated.
22. We, therefore, find no error in the Order passed by the learned
Tribunal. The petitions, along with the pending applications, are
accordingly dismissed.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
APRIL 9, 2025/rv/ik
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