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Judgment
ORDER
By Hon’ble Mr. Justice Om Prakash-VII, Member (J)
This O.A. has been filed by the learned counsel for the applicants for the following reliefs:-
i)To issue a writ, order or direction in the nature of certiorari to quash the order dated 5.12.2014 and communication letter dated 12.12.2014 passed by respondent No. 3 and also order dated 29.4.2015 passed by respondent No. 4 (Annexure A-1 (a) and order dated 11.06.2015 passed by respondent No. 3 (Annexure A-1 (b) be quashed.
ii) To issue a writ, order or direction in the nature of mandamus directing the respondents not to make any recovery of excess payment made to the applicant and pay the leave encashment, bonus for the year 2013-14, arrears of DA for the month of July and October, 2014, amount of CGEGIS and arrears of gratuity on account of revision of DA from July 2014 along with 18% interest from 1st Nov. 2014 till the date of actual payment is made to the applicant.
iii) In case any recovery is made from the applicant, the respondents be directed to refund the recovered amount along with 18% p.a. interest from the date of recovery to the date of actual refund.
iv) To issue another writ order or direction in favour of the applicant as deem fit and proper in the circumstances of the case.
v)Award the cost of the application in favour of the applicant.
The brief facts of the case are that the applicant was appointed as Tin and Copper Smith Mate on 19.12.1977. Applicant was granted second financial upgradation from 24.05.2007 in the pay band of Rs. 9300-24800 + Grade Pay of Rs. 4200. He was granted third MACP on 1.9.2008 in the pay band of Rs. 9300-34800 + 4600 G.P. He was granted periodical increments till July 2014. Applicant superannuated on 31.10.2014. He has been granted pension, gratuity and commutation by PPO dated 25.11.2014 on the basic pay of Rs. 14430 + G.P. 4600/-. After retirement, respondents passed impugned order dated 5.12.2014 which was communicated to the applicant on 12.12.2014 by which respondents proposing the recovery of excess payment made on account of earlier orders from the applicant without any show cause notice.
Learned counsel for the respondents filed counter affidavit, in which it is stated that due to clerical mistake, at the time of granting 3d MACP to the applicant, hewas granted the grade pay of Rs. 4600/- whereas he was entitled to Grade Pay of Rs. 4200/- in the pay band of Rs. 9300-34800 hence on detecting the same, respondents have canceled the earlier pay fixation and proposed to recover the excess amount from the retirement benefits of the applicant.
We have heard Shri M.K. Upadhyay, learned counsel for the applicant and Shri Raghvendra Pratap Singh, learned counsel for the respondents and perused the records.
Learned counsel for applicant argued that as per settled proposition of law, if there is no fraud or misrepresentation on the part of the applicant, recovery from salary cannot be made. It is further argued that recovery is being made without show cause notice. Hence the recovery from the applicant is not permissible and applicant is entitled for all retiral dues.
Learned counsel for the respondents argued that due to clerical mistake over payment has been made to the applicant and after detecting the mistake, respondents vide impugned order dated 12.12.2014 cancelled the old pay fixation in the grade pay of Rs. 4600 and propose to recover the overpayment made to the applicant from the retiral dues of the applicant.
We have considered the rival submissions of the parties and gone through the entire record carefully.
It is worthwhile to mention here 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 also adhering to the Principle of Natural Justice, a show cause notice is a pre-condition for making any such recovery. The bare reading of the entire C.A. there is no whisper about a word notice is shown. It is really very surprising that as to why without issuance of show cause notice, the recovery in question was made. From perusal of record, it is also evident that there was neither any misrepresentation on the part of the applicant nor mistake can be attributed to him. The mistake if any, can be said to be that of the department. Therefore, the respondents were not justified to recover any amount from the applicant after retirement.
In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, 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.”
In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon’ble Apex Court has also been pleased to observe that “opportunity of hearing is to be given to the delinquent before passing an order.”
Admittedly, in the instant case applicant has not committed any fraud or misrepresentation in getting the upgraded pay scale. Now, applicant has retired and after his retirement, reducing his pay respondents have proposes to recover the excess amount even without issuing a show cause notice to him, is not justifiable
As far as reducing the pay of the applicant from Grade Pay Rs. 4600 to Grade Pay Rs. 4200/- at the time of retirement is concerned, the same has been done without affording opportunity of hearing to the applicant, which is also not tenable in the eyes of law.
Considering the facts and circumstances of the case and in the light of the observations made by the Hon’ble Apex Court, the present O.A. is allowed. Amount, if any, recovered from the applicant shall be refunded to him within a period of 03 months. If any amount is still to be recovered, same shall not be recovered. All the retiral dues including provident fund, gratuity and leave encashment shall be released to the applicant. As far as reducing the pay of the applicant is concerned, the matter is remitted back to the respondents to refix the salary of the applicant, if any wrong has been done by them in fixing the salary of the applicant, after issuing show cause notice to the applicant and considering the reply given by him. If respondents found that refixation is necessary, then refix the salary of the applicant within a period of 03 months. Otherwise, grant the pension of the applicant at the basic pay of Rs. 14430/- + Grade Pay 4600/- (last pay drawn) on which the applicant was retired from the date, it became due and issue a fresh PPO. It is made clear that in no case recovery could be made from the applicant. There shall be no order as to costs. All pending MAs stand disposed.