Ashwini Kumar Pandey vs Union Of India & Ors.

Shri Ashish Srivastava, learned counsel for the applicant and Shri Anil Kumar, learned counsel for the respondents were present at the time of hearing.

The instant original application has been filed by the applicant seeking following relief:

The brief facts of the case as narrated in the OA are that the applicant is aggrieved by the order dated 02.04.2024 through which the respondents have denied the waiver / refund of recovery of alleged overpayment made to the applicant. Applicant is also challenging the order dated 17.05.2024 passed by the respondent no 2 and order dated 14.06.2024 passed by the respondent no 1 through which he has been denied the claim for waiver of recovery of alleged overpayment of Rs. 322627/- on the basis of erroneous pay fixation done by the respondents. Thus, by way of the instant original application, the applicant seeks quashing of the aforesaid orders thereby directing the respondents to stop further recovery and to refund the recovered amount to him along with interest.

Counter has been filed by the respondents wherein it is stated that the applicant received an additional increment under the 6^th CPC and as a result, the department has recovered Rs. 5000/- from the applicant’s salary based on the recommendations of the Accounts department. Further, he was erroneously allowed basic pay of Rs 17,710/- in place of Rs, 16,710/- which was rectified in the month of March 2019 and the overpayment was calculated to be Rs 322627/-. Out of that, Rs 158000/- was recovered up to May 2024 and the remaining amount of Rs 164627/- is being continuously recovered @ Rs.5000/- per month.

Rejoinder has been filed by the applicant reiterating the facts and circumstances of the case as narrated in the original application. The applicant has stated therein that his case is squarely covered by several judicial pronouncements made by various Courts across the country including the Apex Court.

I have heard learned counsel for the parties.

Learned counsel for the applicant submitted that on 24.01.2002, the applicant was appointed as Physiotherapist in Lalit Narayan Mishra Railway Hospital, North Eastern Railway, Gorakhpur in the pay scale of Rs 5500-9000/- At the commencement of 6^th CPC, his pay was revised in pay scale of Rs 9300-34800/- with GP Rs 4200/-. On 01.07.2006, he was allowed one increment and his pay was fixed as Rs. 16220/- and on 01.07.2007, he was allowed another increment and pay was fixed as Rs. 17,710/-. Suddenly, the applicant learned from the pay slip of March 2019 that his basic pay was reduced from Rs 66000/- to Rs. 64,100/- without affording any opportunity of hearing or issuing any show cause to him. Not a formal order was ever issued to that effect. Applicant preferred a representation dated 10.04.2019 before the respondents followed by another representation dated 27.05.2020 but for no avail. Instead of deciding the representations, the respondents imposed the recovery of Rs 5000/- in the month of June 2020. On 09.07.2020, the applicant preferred another representation but again for no avail. The recovery from pay and allowance of the applicant was stopped for the month of July and August 2020 but it was again started from September 2020 and continued to be in effect. Applicant kept preferring representations but for no avail. On 12.08.2023, referring to the representation dated 27.05.2020 and 03.12.2020, it was intimated that recovery cannot be stopped. Vide order dated 02.04.2024, applicant was again informed the same thing. Also, on 17.05.2024, the respondent again refused to waive the recovery. Also, vide impugned order dated 14.06.2024, the recovery was continued. It was intimated that in the month of July 2007, the basic pay of the applicant was fixed at Rs. 17,710/- in place of Rs 16,710/- and resultantly the applicant was allowed excess payment which was rectified in March 2019 and thus between July 2007 to February 2019, the applicant was paid excess amount of rs 322627/- out of which a sum of Rs 158000/-is recovered up to May 2024 and remaining Rs 164627 shall be recovered in installments of Rs 5000/- per month.

Learned counsel for the applicant further submitted that applicant was a Group C employee. Recovery order was passed without affording any opportunity of hearing to the applicant and without issuing any show cause notice. It is further argued that in getting the alleged overpayment or wrong fixation of pay or increment, there was no misrepresentation made on the part of the applicant nor any fraud or deceit was committed on his part and thus, recovery is not permissible. To substantiate this argument, learned counsel for the applicant refers to the relief clause as well as the law laid down by the Hon’ble Supreme Court of India in judgment dated 18.12.2014 passed in Civil Appeal No. 11527 of 2014 titled State of Punjab &Ors Vs Rafiq Masih. Learned counsel for the applicant has also placed reliance on the DoPT OM dated 02.03.2016 and submitted that no recovery of excess payment can be imposed on the employees belonging to Class III or Class IV service and in cases when excess payment has been made for a period in excess of five years before the order of recovery is issued. Thus, referring to entire facts and circumstances of the case, prayer was made to allow the OA directing the respondents to refund the entire amount to the applicant along with interest.

Per contra, learned counsel for the respondents, relying upon his counter affidavit, vehemently opposed the claim of the applicant and submitted that in the month of July 2007, the basic pay of the applicant was fixed at Rs. 17,710/- in place of Rs 16,710/- and resultantly the applicant was allowed excess payment which was rectified in March 2019 and thus between July 2007 to February 2019, the applicant was paid excess amount of Rs 322627/- out of which a sum of Rs 158000/- is recovered up to May 2024 and remaining Rs 164627 shall be recovered in installments of Rs 5000/-per month. Learned counsel for the respondents argued that it is the duty and responsibility of the department to rectify any mistake which has occurred in fixing the pay of an employee and to accordingly recover the excess payment which has made to him by way of that wrong fixation of pay. Thus, prayer was made to dismiss the OA arguing that no illegality, infirmity or perversity can be attributed to the impugned order.

I have considered the rival contentions and gone through the records.

As the facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. It is an admitted fact that vide the impugned orders, the respondents have stated that in the month of July 2007, the basic pay of the applicant was fixed at Rs. 17,710/- in place of Rs 16,710/- and resultantly the applicant was allowed excess payment which was rectified in March 2019 and thus between July 2007 to February 2019, the applicant was paid excess amount of Rs. 322627/- out of which a sum of Rs 158000/- is recovered up to May 2024 and remaining Rs. 164627/- is being recovered in installments of Rs 5000/- per month.

Here, it is pertinent to mention that it is an admitted fact that in getting his pay fixed or drawing the benefit of annual increment, the applicant had neither misrepresented nor was there any fraud committed on his part. It is also worthwhile to mention that it is settled law that firstly, no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then the same has to be inflicted upon the person who made the wrong pay fixation. Thirdly, imposition of any recovery to a person or refixation of his pay without issuance of a show cause notice or without providing any opportunity of hearing is bad in the eyes of law and violative of the principles of natural justice.

Furthermore, in the case of Rafiq Masih (supra), Hon’ble Supreme Court has been pleased to observe as under:-

The instant case of the applicant is squarely covered by the clause (iii) and clause (v) of the aforesaid quotation. The recovery has been imposed in the month of March 2019 for the alleged wrong pay fixation which was made on the part of the respondents in the year July 2007 which implies that recovery has been effected in excess of five years from the date of issuance of the order of pay fixation. Similarly, the case of the applicant is also covered by aforesaid quoted clause (v) as having regards to the facts and circumstances of the case, the Tribunal is of the opinion that the recovery under question has been iniquitous or harsh or arbitrary to an extent, as would far outweigh the equitable balance of the of the employer’s right to recover.

Admittedly, in the instant case, applicant had not committed any fraud or misrepresentation in getting the pay scale or annual increment. Therefore, reducing his pay and recovering such a huge amount from his pay and allowances is certainly not justifiable. Therefore, I am of the considered opinion that the applicant is liable to be granted the benefit as has been claimed by him. Accordingly, in view of the aforesaid deliberations and contemplations, the instant original application is allowed. Impugned orders dated 02.04.2024, 17.05.2024 and 14.06.2024 passed by the respondents are hereby set aside in view of law laid down in the case of State of Punjab and others Vs. Rafiq Masih (supra). Respondents are hereby directed not to make any further recovery from the applicant and the entire amount already recovered on the basis of the aforesaid impugned orders, shall be refunded to the applicant within a period of 3 months from the date of receipt of certified copy of this order failing which the said payment shall attract a simple interest @ GPF rate. Furthermore, if the respondents intend to rectify the mistake regarding wrong fixation of pay committed on their part and they advise so, they must do so after issuing a fresh show cause notice and after affording opportunity of hearing to the applicant, they must refix the salary but in no case, the recovery could be made of the excess payment said to have been made to the applicant.

All associated MAs stand disposed of accordingly. No costs.