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Judgment
O R D E R
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-
“(i)This Hon’ble Court may graciously be pleased to quash the impugned order dated 28.09.2012 passed by the Deputy Accountant General Legal (Annexure No. A-1 to this Original Application).
(ii)This Hon’ble Court may graciously be pleased to quash the impugned pay slip for the month of October 2012 with further direction against the respondents to not to make any recovery from the pay and allowance of the applicant (Annexure No A-1 to this Original Application).
(iii)This Hon’ble Court may graciously be pleased to direct the respondents to refund the amount recovered from the pay and allowances of the applicant with interest thereupon.
(iv)Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
(v)Award the costs of the original application in favour of the applicant.
(vi)This Hon’ble Court may graciously be pleased to quash the order dated 26.12.2012 passed by the respondent No.2 (Annexure No. A-1 to this application)”.
The brief facts of the case are that the office of Accountant General (Account), UP has received complaint with regard to staff of Accounts Office, who are not punctual in discharging their duties and non-presence on their seat/office, an inspection by team of officials was made on 24th February 2012. During the inspection, demonstration took place in the office premises for which main gate of the office was closed down, thus, applicant could not leave the office for attending practice session. Applicant was illegally involved in the demonstration though he was not concerned with any of the alleged act and consequently applicant was issued a chargesheet along with large number of other employees against which the departmental inquiry is pending in the office of respondents. Due to sickness, applicant was granted medical leave from 05.03.2012 to 16.03.2012 but the aforesaid period was hold as dies non by its order dated 01.05.2012. The aforesaid order was challenged by the applicant through OA No. 1253 of 2012 before this Tribunal, which is still pending
Applicant has filed this OA seeking two reliefs. First relief is that during the period from 01.04.2010 to 30.04.2012, applicant availed the time concession, which is for sportsman for his practice. As per the impugned order, applicant was required to leave the office at 3.30 PM for practice session but on most of the occasions, he was not regular and had left the office for practice session between 3.45 PM and 6.00 PM, hence applicant was found unauthorized absent from duty/practice session for 168 days. Accordingly, by the impugned order dated 28.09.2012, the services of applicant for 168 were treated as ‘Dies-non’ without break in service. Second relief with regard to quashing of recovery of Rs. 10000/- per month due to non-attending of practice session in time without giving a show cause notice to the applicant.
Per contra, respondents have filed counter affidavit in which they have submitted that respondents carefully considered the reply against the show cause notice regarding unauthorized absent from duty and passed reasoned and speaking order dated 28.09.2012 whereby services of applicant for 168 days was treated as dies non without break in service and pay and allowances earlier drawn by the applicant for 168 days were being recovered from the salary of the applicant. Respondents have also stated in the counter affidavit that applicant had not performed his duties properly as Secretary of recreation club.
5 From perusal of record, it shows that on previous occasion i.e. 12.07.2023, no one was present for the respondents, Today also none present for the respondents, thus, I have heard Shri Ashish Srivastava, learned counsel for the applicant and perused the pleadings available on record.
Submission of learned counsel for the applicant is that the pay slip of the applicant for the month of October 2012 would go to show that the department has started a recovery of Rs. 10,000/- per month without giving a show cause notice to the applicant. There is no fault on the part of the applicant, thus no recovery could be made from him. Thus referring to the law laid down by the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, prayer was made to quash the recovery of Rs. 10000/- per month from the salary of the applicant. Learned counsel submitted that while passing the order dated 28.09.2012, respondents did not consider the representation of the applicant and awarded the penalty of dies non for 168 days for the period from 01.04.2010 to 30.04.2012. Learned counsel further submitted that during the aforesaid period, applicant had never been absent from duty and if the applicant has gone for practice session with a difference of few minutes that may not be a ground to declare the whole day unauthorized absence from duty.
I have considered the submissions of the learned counsel for the applicant and perused the records.
From the perusal of record, it is admitted fact that during the year 2010 and 2011, applicant has been allowed to avail the time concession for practice session and it is also admitted fact that applicant was required to leave the office at 3.30 PM for practice session but applicant had left the office for practice session between 3.45 PM and 6.00 PM. It is pertinent to mention here that it is not the case of the respondents that applicant had left the office before 3.30 PM. From the perusal of record, it reveals that applicant has been assigned some other work in the office and due to non-completion of work, applicant could not leave the office in time for attending the practice session. It is also relevant to mention here that applicant has also filed OA No. 1253 of 2012 before this Tribunal against the unauthorized absent from duty during the period of 05.03.2012 to 16.03.2012, which is still pending. Perusal of the impugned order also reveals that respondents have not applied his mind for deciding the explanation/representation of the applicant and that the impugned order passed is not in accordance with the extant rules. It is also well settled that the period of service cannot be declared dies non without holding enquiry and in the present case no enquiry was held pursuant to the explanation called for to the applicant.
It has been observed by the Hon’ble Supreme Court in the case of Krushnakant B. Parmar vs Union Of India in CIVIL APPEAL NO.2106 OF 2012 decided on 15.02.2012 that “the question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. In a transfer case, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct”.
It is also an admitted fact that in getting pay and allowances, applicant has not misrepresented nor was there any fraud committed on his part. If recovery is to be made from the salary of the applicant, it would be difficult for the him to provide basic needs of the family.
It is worthwhile to mention that it is settled law on the point 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 and allowances
In the case of Rafiq Masih (supra), Hon’ble Supreme Court has been pleased to observe as under:-
”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”.
Not only this, the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
“8.We are of the considered view, after going through the “various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.”
Admittedly, in the instant case, applicant was directed to attend the practice sessions at 3.30 PM but applicant had left the office during 3.45 PM to 6.00 PM. It is also admitted fact that applicant had not left the office in time due to office work. It is not disputed that applicant was present on duty, hence it shall be presumed that applicant was not absenting from duty, thus, the impugned order has no leg to stand and is liable to be quashed and accordingly applicant has not committed any fraud or misrepresentation in getting the pay and allowances. Therefore, recovery of Rs. 10000/- per month from the salary of applicant is liable to be quashed. Therefore, I am of the considered opinion that the applicant is liable to be granted the benefit as has been claimed in the OA.
Accordingly, OA is allowed and impugned order dated 28.09.2012 is hereby set aside in view of law laid down by the Hon’ble Supreme Court recovery of Rs. 10000/- per month from the salary of the applicant is hereby quashed. If any amount has already been recovered, the same shall be refunded to the applicant within a period of 4 months with simple interest @ 6% per annum. If any amount is still to be recovered, same shall not be recovered. No order as to costs. All associated MAs stand disposed of.