Rajasthan High Court

Om Prakash Tripathi S/O Shri Sukh ... vs Union Of India on 21 September, 2023

Bench: Augustine George Masih, Sameer Jain

[2023:RJ-JP:19646-DB]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                D.B. Civil Writ Petition No. 14094/2021

Om Prakash Tripathi S/o Shri Sukh Dev Tripathi, Aged About 62
Years, Earlier R/o Vii/3, Vidhyadhar Nagar, Jaipur (Raj.), Now
The Resident Of 18-19 Pitambara Vihar, Matiyari Chinhat,
Lucknow (Up). Pin-226028 Earlier Working As Add. Surveyor
General, Survey Of India, Jaipur.
                                                                         ----Petitioner
                                       Versus
1.       Union Of India, Through Its Secretary, Ministry Of Science
         And Technology, Department Of Science And Technology,
         Technology Bhawan, New Mehrauli Road, New Delhi
         110001
2.       Surveyor General, Survey Of India, Hathi Barkala Estate,
         Post Box No. 37, Dehradun, Uttrakhand 248001
                                                                    ----Respondents

For Petitioner(s)            :     Mr. Amit Mathur
For Respondent(s)            :     Mr. R.D. Rastogi, ASG with Mr. Devesh
                                   Yadav and Mr. C.S. Sinha

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN

Order

Per Hon'ble Sameer Jain, J.

Reserved on         -              21/08/2023

Pronounced on -                    21/09/2023

1. The present writ petition has been filed assailing the

impugned order dated 29.10.2021, passed by the Central

Administrative Tribunal (for short "CAT") at Jaipur in Original

Application No. 291/274/2017, whereby the CAT upheld the order

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of recovery of excess payment made to the petitioner by the

respondent-Department.

2. The issue involved in the present writ petition pertains to

recovery of excess payment made to the petitioner. The petitioner,

at the relevant time, was working on the post of Director in

Survey of India and was granted Non-Functional Upgradation (for

short "NFU") of organized Group 'A' services with Grade Pay of Rs.

10,000/- per month with effect from 26.10.2006. The petitioner

was also allowed enhanced Transportation Allowance (for short

"TA") of Rs. 7,000/- per month + Dearness Allowance (for short

"DA") and continued to draw the same from 2008 to 31.03.2016.

The recovery of this enhanced TA is the bone of contention in the

present petition.

3. Learned counsel for the petitioner submits that the petitioner

was allowed benefit of enhanced TA by the respondent-

Department as per their interpretation of para 3 of the

Government of India, Ministry of Finance (Department of

Expenditure) OM dated 29.08.2008. It is contended that the

decision to restrict the benefit of enhanced TA to only those

employees drawing Grade Pay of Rs. 10,000/- on regular basis

and not to those employees who had been drawing Grade Pay of

Rs. 10,000/- on NFU was only clarified in 2016 and accordingly

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the petitioner stopped drawing TA at enhanced rate of Rs. 7,000/-

+ DA w.e.f. 01.04.2016. Learned counsel for the petitioner has

further highlighted that even the Department was unsure about

the interpretation and in view of the objections raised by the

Principal, Audit Office, by which the ban was imposed over the

payment of Rs. 7,000/- + DA w.e.f. 01.04.2016, the Department

had also sought a clarification vide communication dated

21.03.2016. Thereafter, vide letter dated 12.04.2016, it was

communicated to the Department that the Department may

recover excess TA paid to officers promoted under the scheme of

NFU. Consequently, the impugned recovery order(s) dated

20.04.2017, 25.04.2017 and 01.05.2017 were passed by the

respondents.

4. Learned counsel for the petitioner contends that the benefit

of enhanced TA was extended by the respondents based on their

own interpretation of the rules, there was no fraud or

misrepresentation on the part of the petitioner, and therefore the

recovery could not be initiated, especially considering that the

allowance was for a specific purpose of transportation, which the

petitioner had already enjoyed. Learned counsel for the petitioner

has placed strong reliance on Apex Court judgments of State of

Punjab vs. Rafiq Masih (Neutral Citation: 2014/INSC/896)

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reported in (2015) 4 SCC 334 and Thomas Daniel vs. State of

Kerala and Ors. (Neutral Citation: 2022/INSC/498) reported

in AIR 2022 SC 2153. Learned counsel for the petitioner further

submits that the very same controversy has also been decided by

the Telangana High Court in favour of the employee in the case of

Union of India vs. T. Sanjeev Kumar (Writ Petition No. 5951

of 2019; decided on 22.03.2019), wherein the recovery was

quashed by the Telangana High Court. Learned counsel for the

petitioner has further highlighted that no appeal has been filed

against the order dated 22.03.2019 in the case of T. Sanjeev

Kumar (supra) and Union of India had accepted the decision of

Telangana High Court and thereafter had also released the amount

withheld by them to the employee therein.

5. Per contra, learned counsels for the respondents submits

that there is no dispute about the ineligibility of the petitioner to

receive enhanced TA. It is submitted that during the month of

February of 2015, a team of Internal Audit Wing visited the

Rajasthan Geospatial Data Centre for internal audit and raised

audit objection regarding over payment of TA on basis on NFU, as

they were not entitled for use of staff car for commuting between

office and residence, in terms of Government of India, Ministry of

Finance (Department of Expenditure) OM dated 28.01.1994 along

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with clarifications/ID Notes dated 10.01.2013, 23.12.2014 and the

Government of India, Railway Boards letter dated 17.11.2015. The

petitioner himself complied with the audit objections and stopped

the withdrawal of higher TA w.e.f. 01.04.2016. The petitioner had

also furnished an undertaking dated 23.09.2008, stating that if it

is found that the amount paid to the petitioner was in excess, then

the petitioner would be duty bound to return the same to the

Department. Learned counsels for the respondents submits that it

is a settled position of law that recovery of excess amount from an

employee can be made when an undertaking has been furnished

by the employee himself stating that any excess amount

paid/given could be recovered from him. In this regard, reliance in

placed on judgment passed by the Hon'ble Supreme Court in the

case of High Court of Punjab and Haryana and Ors. vs.

Jagdev Singh (Neutral Citation: 2016/INSC/564) reported in

(2016) 14 SCC 267, wherein the Hon'ble Supreme Court had

considered and distinguished the judgment of Rafiq Masih

(supra) and held that recovery of excess amount from an

employee can be made when an undertaking has been furnished

by the employee himself stating that any excess amount

paid/given could be recovered form the employee.

[2023:RJ-JP:19646-DB] (6 of 10) [CW-14094/2021]

6. Heard the arguments advanced by both the sides, scanned

the record of the writ petition and considered the judgments cited

at Bar.

7. Before proceedings to the merits of the case, this Court

deems it appropriate to recapitulate the settled position of law, as

enunciated by the Hon'ble Supreme Court, on the issue of

recovery of excess amount paid to the employees.

7.1) In the case of Rafiq Masih (supra), the Apex Court

observed and held 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from 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."

[2023:RJ-JP:19646-DB] (7 of 10) [CW-14094/2021]

7.2) In the case of Jagdev Singh (supra), while

distinguishing/clarifying Rafiq Masih (supra), the Apex Court

observed and held as under:

"8. The order of the High Court has been challenged in these proceedings. From the record of the proceedings, it is evident that when the respondent opted for the revised pay scale, he furnished an undertaking to the effect that he would be liable to refund any excess payment made to him. In the counter-affidavit which has been filed by the respondent in these proceedings, this position has been specifically admitted [State of Punjab v. Rafiq Masih, (2015) 4 SCC 334]. Subsequently, when the Rules were revised and notified on 7-5-2003 it was found that a payment in excess had been made to the respondent. On 18-2-2004, the excess payment was sought to be recovered in terms of the undertaking.

9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made.

10. ---

11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable.

However, we are of the view that the recovery should be

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made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."

7.3) In the case of Thomas Daniel (supra), the Apex Court,

after meticulously considering previous judgments of Col. B.J.

Akkara (Retd.) v. Government of India reported in (2006) 11

SCC 709, Syed Abdul Qadir and Ors. v. State of Bihar and

Ors. reported in (2009) 3 SCC 475 and Rafiq Wasih (supra),

held that the excess payment of emoluments or allowances to an

employee are not recoverable if it was on the basis of a particular

interpretation of rule/order which is subsequently found to be

erroneous. The operative portion of the said judgment is

reproduced as under:

"14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

15. Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified."

8. In the present case, it is undisputed that there was no fraud

or misrepresentation on the part of petitioner, nor is there any

allegation of malafide. The respondent-Department had extended

the benefit of enhanced TA to the petitioner as per their

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interpretation of para 3 of OM dated 29.08.2008, which was

subsequently found to be onerous following the audit objection in

2015. Even thereafter, clarification was sought by the respondent-

Department on further course of action. The interpretation

adopted by the respondents was sustained for a period of about

seven years. Therefore, after lapse of this prolonged period,

barring the point of undertaking, the recovery could not be

initiated, especially in light of Rafiq Masih (supra) and Thomas

Daniel (supra).

9. Now on the point of petitioner's undertaking, it is noted that

the Division Bench of Telangana High Court, in T. Sanjeev Kumar

(supra), has distinguished the applicability of Apex Court

judgment of Jagdev Singh (supra) in the following manner:

"4. From the above, we are of the view that case of respondent comes under Clause v of aforesaid guidelines. Even though respondent gave an undertaking, Tribunal rightly relied on judgment of Apex Court in Rafiq Masih (1 supra) and passed order impugned by issuing direction to petitioners to release the amount withheld from gratuity to respondent, as such, we cannot find fault with order impugned. Further, in Jagdev Singh (2 supra), Apex Court dealt with the case of pay fixation and held that recovery should be made in reasonable instalments. But, in present case, issue is with regard to grant of Transport Allowance, as such, principle laid down in Jagdev Singh (2 supra) has no application to facts in present case."

10. This Court is in agreement with the view taken by the

Division Bench of Telangana High Court as the case of Jagdev

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Singh (supra) pertained to revision in pay fixation and the

undertaking given by the employee while accepting the revised

pay scale, whereas the issue at hand pertains to erroneous

interpretation of the relevant rules/order by the Department, the

issue which has been settled by the Apex Court in Thomas

Daniel (supra).

11. What is significant is that the respondent-Union of India has

accepted and complied with the order of Telangana High Court in

T. Sanjeev Kumar (supra), and the compliance letter/report is