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Judgment
ORDER
Shri S M Ali, learned counsel for the applicant and Shri Ashish Kumar Srivastava, learned counsel for the respondents, are present.
The instant original application has been filed with following relief:
“i.To quash the impugned order dated 26.04.2024 (Ann – A-1) with all consequential benefits.
ii.To issue order or direction to the respondents to refund the recovered amounts Rs. 89,970 to the applicant in light of R.B.E. No.72 of 2016 (Annexure A-5) and Hon’ble Apex Court judgment Rafiq Masih, and to also pay 6% interest P.A. from the date of recovery.
iii.To pass any such and further order as deem fit in the facts and circumstances of the case.
iv.Award the cost of the compensation in favour of the applicant.”
The brief facts of the case as narrated in the OA are that the applicant is challenging the order dated 24.06.2024 passed by the respondent whereby the respondents have imposed and made recovery of alleged overpayment of Rs 89,970/- from the commutation of the applicant at the time of his retirement. Applicant has claimed that act of the respondents is illegal in light of RBE No 72 of 2016 and has also contended that his case is covered by several judicial pronouncements and Circulars issued by DoPT from time to time and thus by way of this OA, he seeks quashing of the aforesaid impugned order thereby directing the respondents to not make any further recovery and refund the recovered money to the applicant along with interest.
Heard learned counsel for the parties on the issue of admission.
Disclosing a brief history of the case, learned counsel for the applicant submitted that the applicant was appointed on Group C post in pay scale Rs 950-1500 w.e.f. 22.05.1986 and promoted time to time. The applicant was promoted on the post of Loco Pilot in pay scale Rs 5000-8000 (now GP Rs. 4200 as per 6th CPC) w.e.f. 29.12.1993. The Central Administrative Tribunalapplicant would be treated as working in GP 4200 w.e.f. 24.12.1993 and had completed 10 years in GP Rs 4200 in the year 2003. Referring to the exercise of the respondents of recovering the alleged overpayment from the applicant, learned counsel argued that the recovery of Rs 89,970/- for the alleged overpayment made to the applicant between 28.11.2009 to 30.11.2017 from the communication and from the DCRG of the applicant at the time of his retirement, is illegal and unwarranted in light of the ratio laid down by the Hon’ble Supreme Court of India in the case of Rafiq Masih reported in (2015) 2 Supreme Court cases (L&S) 33. Learned counsel further argued that no opportunity of hearing was granted to the applicant by the respondents before imposing such a recovery upon him. Further, the applicant belongs to Group – C category of employees and therefore recovery of any alleged overpayment cannot be made from him. Learned counsel further argued that in order to avail the benefit of MACP, the applicant had not misrepresented or committed any fraud and even if there was an overpayment, the same was done on the part of the respondents for which the applicant cannot be held guilty and made to suffer at this crucial stage when he has retired. Thus, referring to entire facts and circumstances of the case, prayer was made to allow the OA at this stage itself by setting aside the impugned order and direct the respondents to refund the entire recovered amount along with interest.
Learned counsel for the respondents vehemently opposed the prayer of the applicant’s counsel and argued that the recovery of the excess overpayment of MACP made to the applicant was done after following the procedure prescribed under the law. Upon inspection of records, it was found that due to a mistake at the end of the department, the applicant was paid MACP on 28.11.2009 instead of actual date 22.05.2016 and thus, the competent authority issued letter dated 08.11.2017 for rectification of mistake. Learned counsel further argued that once the discrepancy surfaced, it was incumbent upon the respondents to have recovered the excess amount paid to the applicant on account of overpayment and since all the requisite steps were taken at the end of the respondents, no illegality, infirmity or perversity can Central Administrative Tribunalbe attributed to this exercise. Thus, prayer was made to dismiss the OA being devoid of merits.
Rejoinder has been filed by the applicant reiterating the facts and circumstances of the case as narrated in the OA.
I have considered the rival contentions and carefully perused the records as well as case laws relied upon.
Having carefully perused the records and considering the pleadings exchanged across the Bar, it is an admitted fact that no opportunity of hearing was given to the applicant before enforcing the order of recovery upon him. Further, no explanation was called from him. Also, the applicant is a Group C employee and at the time of retirement, the recovery has been imposed upon him from his commutation and DCRG amount. When it is not disputed that the applicant belongs to Group ‘C’ class of employees, there exists very little scope of recovering any amount from him which is alleged to be given as overpayment. Also, to avail the benefit of MACP, the applicant had not misrepresented nor committed any fraud and the amount was paid to him by the respondents. Thus, there was no error committed on the part of the applicant for receiving the amount of MACP from back date and therefore, at this belated stage, he cannot be inflicted with a punishment of recovery. This argument finds support from ratio laid down by the Apex Court in the case of Rafiq Masih (Supra) wherein it was held that:
“As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
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.”
Thus, in view of the aforesaid quotation, it is evident that no recovery whatsoever is liable to be made from the applicant and respondents have erred in doing so. Thus, it would be in the fitness of things if this original application is allowed. Accordingly, OA No. 1379 of 2024 is allowed for the discussions made above. The impugned order dated 24.06.2024 (annexed as Annexure A-1 to the OA) is hereby quashed and set aside to the extent that Respondents are hereby directed to not make any recovery from the applicant and the amount which has already been recovered from the applicant shall be refunded to him within a period of three months from the date of receipt of certified copy of this order failing which the aforesaid payment shall attract simple interest @ GPF rate from the due date.
All associated MAs stand disposed of. No costs.