S.C. Mehra vs Union of India and Others

Ajay Tewari, J.—The petitioner joined service with respondent No. 2 in the year 1970 and retired in the year 2005. Since his retiral dues were not paid, he filed C.W.P. No. 8719 of 2009 which was disposed of by judgment and order dated 19th of February, 2010 in the following terms:--

The release of pension and other retiral benefits however shall be without prejudice to the rights of the petitioner, if he has any other claims with regard to any claim including retiral benefits.

Thereafter his retrial dues were released. However, his basic pay was refixed vide order dated 5th July, 2006 and reduced and consequently some amount was recovered while releasing the retrial dues. Vide order dated 22th of August 2006, 75 days of commuted leaves were converted to earned leaves, thereby reducing his encashment of earned leaves. The primary challenge in the present writ petition is to the refixation of the pay and to this conversion of leaves, both of which are stated to have done without hearing the petitioner. As regards the first grievance the learned counsel has relied upon Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, to canvass that recovery could not be made and has relied upon Paras 14 and 17 of the said judgment which are quoted herein below:--

We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries hand either retired or were on the verge of retirement and so as to avoid any hardship to them.

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.

Learned counsel has argued that after he filed the instant writ petition, the respondents passed another order dated 10th November, 2010 again refixing the pay as well as another order of even date also upholding the conversion of commuted leaves into earned leaves. As per learned counsel both these orders as well as the original order which were upheld are illegal. Apart from this he has argued that in any case amount could not have been made in view of the decision of Chandi Prasad Uniyal case (supra) in paras 14 & 17.

From the above facts it is clear that both the orders have been passed ex parte. Learned counsel for the respondent has argued that when the subsequent orders were passed, notice was duly issued to the petitioner and, having chosen not to file reply he cannot now challenge the same. In response thereto learned counsel for the petitioner has argued that the original orders were passed without issuing any notice and subsequent order was passed during the pendency of the present petition and therefore the same should be set aside.

Learned counsel for the respondent has sought to argue that in Chandi Prasad Uniyal case (supra) the Hon''ble Supreme Court has, as a point of principal laid down that over payment paid to employees cannot be retained by them.

In my considered opinion the arguments of both learned counsel are too extreme. In any case in view of the decision of the Hon''ble Supreme Court in Chandi Prasad Uniyal (supra) recovery could not have been made and consequently the same is set aside. The respondents are directed to refund the amount to the petitioner within a period of one month from today failing which the petitioner will be entitled to recover the amount with interest at the rate of 8% from the date of retirement till the date of payment.

With respect to the refixation and conversion of leave, in my view it would be in the interest of justice if the petitioner files a representation to respondent No. 2 within a period of one month from today putting forth his point of view and the reasons why, in his opinion, the pay could not be refixed and the leave could not be converted. The respondent No. 2 is directed to consider the same and pass a speaking order thereon within a period of three months. Thereafter in case the petitioner is found entitled to any relief, the same be released to him within a further period of three months. Petition disposed of.