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Judgment
Shri Rakesh Kumar Dixit, learned counsel for the applicant, and Shri Ashish Kumar Srivastava, learned counsel for the respondents, are present and heard.
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
“(i)This Hon’ble Tribunal may be pleased to quash and set aside the impugned order dated 26.11.2024 and further be pleased to direct the respondents to pay recovered amount of DCRG of applicant as Rs.535610/- along with 12% interest w.e.f. 01.01.2024 till the actual date of payment.
(ii)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.
(iii)Award the costs of the original application in favour of the applicant.”
The brief facts of the case are that the applicant was initially appointed in the respondents department on 08.05.1984 and retired on 31.12.2023 from the post of Technician Grade-I. The DCRG was not paid to the applicant for which he submitted a representation dated 01.02.2024 and also approached this Tribunal through O.A./1005/2024 which was decided on 04.09.2024 with a direction to decide the pending representation of the applicant. Pursuant to the said order, the respondents passed the impugned order dated 26.11.2024 showing that due to overpayment, a total amount of Rs.7,26,008 has been recovered from the gratuity of the applicant. Aggrieved, the applicant has filed the present O.A.
Submission of learned counsel for the applicant is that the DCRG amount due to the applicant as calculated by the respondents amounting to Rs.880672/- has not been paid to him. No show cause notice was issued to him and only vide the impugned order the applicant has been informed about the recovery. He further states that the applicant retired as Technician Grade I which is a Group C post. 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 (2015) 4 SCC 334, learned counsel for the applicant argued that the impugned recovery is wholly arbitrary, illegal and in complete violation of natural justice as well as contrary to the settled position of law. Learned counsel for the applicant also placed reliance on DoPT OM dated 02.03.2016 and 22.06.2016 on the subject of recovery from government employees.
Referring to above, learned counsel for the applicant submitted that the O.A. be allowed directing the respondents to refund the recovered amount along with interest as claimed in the relief. Learned counsel for the applicant further states that the applicant is not interested in restoration of the benefit withdrawn by the respondents.
Submission of learned counsel for the respondents is that due to the absence of the said employee during his service period, revised pay was fixed due to which a recovery bill of Rs.5,35,610/- has been verified by the accounts department and due to his absence during the service period, additional leave LAP (-56) and LHAP (-40) was recorded in his leave account as per the leave account records at the time of retirement, the recovery bill of which is Rs. 1,53,864 verified by the accounts department. At the time of settlement/retirement of the employee, an amount of DCRG of Rs.8,80,672/- was made. After deduction of the overpayment made to the applicant i.e. additional salary of Rs.5,35,610/-, additional paid leave Rs.1,53,864/-, RELHS Rs. 30000, house rent Rs.540/-, water rent Rs.15/- and electricity bill Rs.5,979/-, the remaining DCRG amounting to Rs.1,54,664/- along with interest Rs.915/- has been paid to the applicant. Thus, it is argued that there is no infirmity in the impugned order.
I have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents record.
In the case of State of Punjab & Ors vs Rafiq Masih (White Washer) [AIR 2015 SUPREME COURT 696] decided on 18.12.2014, the Hon’ble Apex Court has held as under:-
12.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.
Subsequently, DoPT has also issued the OM dated 02.03.2016 and 22.06.2016 waiving recovery in the situations as mentioned in the Rafiq Masih (supra) case.
In the present case, the recovery has been made from the applicant for overpayment made to him without issuing any show cause notice. Apparently, there was no misrepresentation or fault on part of the applicant in the alleged overpayment made to him. Moreover, the applicant is a retired employee who was working on a group ‘C’ post. Under these circumstances, the recovery made from the applicant is de hors the law laid down by the Hon’ble Apex court in the case of Rafiq Masih (supra) as quoted in the preceding paragraph.
Accordingly, the impugned order dated 26.11.2024 is hereby set aside to the extent of the recovery made from the applicant. Keeping in view the prayer made by learned counsel for the applicant, the respondents are hereby directed to refund the entire amount recovered from the DCRG of the applicant along with an interest at the GPF rate within a period of three months from the date of receipt of a certified copy of this order.
Thus, the O.A. stands allowed. All associated M.As. also stand disposed of. No order as to costs.