Shashi Jain vs Govt. Of NCT Of Delhi And Ors

The applicant has filed this OA impugning the respondents order dated 19.06.2014 vide which an amount of Rs.3,48,970/- (Rupees Three lacs forty eight thousand nine hundred and seventy only) has been withheld/recovered from her gratuity on the verge of her retirement.

The brief facts of the case are that the applicant joined as Pharmacist (Group C) in the office of respondents on 25.04.1977. It is submitted that the respondents vide OM dated 18.11.2009 and 23.10.2010 refixed the pay of the applicant and she was granted third financial up-gradation under MACP Scheme w.e.f. 01.09.2008 with grade pay of Rs.5400/-. The applicant was accordingly paid the arrears w.e.f. 01.09.2008 and the respondents continued paying the grade pay of Rs.5400 till March, 2014. The applicant further submits that her pay was refixed/reduced in the grade pay from Rs.5400 to Rs.4800/-w.e.f. June, 2014 without any show cause notice. However, the applicant was assured that no amount will be recovered from her salary as she has neither misrepresented nor defrauded the respondents.

The applicant contends that it was to her dismay when she received an order dated 19.06.2014 whereby recovery to the extent of Rs.3,48,970/- was effected from her gratuity in an arbitrary and illegal manner on the verge of her retirement. It is submitted that the respondents refix/reduced the grade pay of the applicant from Rs.5400/- to Rs.4800/- w.e.f. 01.09.2008 without any Show Cause Notice (SCN). Aggrieved the applicant requested the respondents orally and also preferred representation dated 22.04.2016 requesting them to refund the withheld amount but the respondents did not paid any heed to her request.

In support of her claim, the applicant has relied upon the decision of the Coordinate Bench of this Tribunal in the case of Sh.Ranvir Singh Kadyan Vs. Govt. of NCT of Delhi and Ors (OA No. 856/2017 decided on 8.05.2018) and stated that her case is fully covered with the decision relief upon by her. She has also relied upon the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors (2014(8)SCALE 613) to contend that the recoveries cannot be made from the employees.

The respondents have filed their counter reply taking the preliminary issue of limitation. They have also submitted that the case of Rafiq Masih (supra) is not applicable to the present case. Per contra, they have relied upon the decision of Hon'ble Supreme Court in Chandi Prasad Uniyal Vs. State of Uttrakhand (2012 (8) SCC 417) to contend that overpayment of amount due to wrong fixation can very well be recovered from the employees.

I have gone through the pleadings of the case as also the citations relied upon by either parties and considered the arguments advanced on their behalf.

In so far as limitation is concerned, it is a settled law that the limitation does not attract where the cause of action is recurring one. It is also settled position that when a set of employees is given relief by Court, all other identically situated persons should be treated alike by extending same benefits since not doing so would amount to discrimination and violation of Article 14 of the Constitution as has been held in State of Uttar Pradesh and Others Vs. Arvind Kumar Serivastava and Others (2015 (1) SCC 347). It is seen that a similar relief has been granted by this Tribunal in case of Sh.Ranvir Singh Kadyan (supra). I am of the considered opinion that law of limitation is not attracted in this case.

I have gone through the decision of Sh.Ranvir Singh Kadyan (supra) and of the considered opinion that the case in hand is absolutely identical matter and hence the applicant in this case deserves to be granted the same relief.

In this view of the matter, the OA is allowed and respondents are directed to rectify their order dated 19.06.2014 by refunding the amount of Rs.3,48,970/- to the applicant which had already been recovered from her gratuity, and accordingly fix the pay and revise pension of the applicant, keeping in view of the OM No.F.6/30/TRC/H&FW/2010/9425-65 dated 20.09.2013 within a period of two months from the date of receipt of a copy of this order. No costs.