Shri Raj Kumar vs Commissioner

L. Narasimha Reddy, J

The applicant herein was working as a Horticulture Inspector in the Municipal Corporation of Delhi (for short, MCD). He raised an Industrial Dispute, being I.D. No.31/2006 before the concerned Labour Court, claiming that he is entitled to be promoted to the post of Section Officer (for short, SO) from the date on which his juniors were promoted, and that he is entitled to be extended the consequential benefits, including arrears of salary.

The Labour Court passed an Award dated 24.03.2009 granting relief of notional promotion to the applicant to the post of SO and arrears of salary. The respondents filed Writ Petition (Civil) No.1137/2009 before Hon'ble Delhi High Court challenging the Award of the Labour Court. Limited relief was granted therein, and not satisfied with that, the respondents filed LPA No.78/2012 before a Division Bench of Delhi High Court.

During the pendency of writ petition, the applicant initiated proceedings under Section 33(C)(1) of the Industrial Disputes Act, 1947, and recovered a sum of Rs.11,62,975/- from the respondents.

LPA No.78/2012 filed by the respondents was allowed by the Division Bench of Delhi High Court on 11.05.2012. The respondents issued a show cause notice dated 31.10.2012 to the applicant requiring him to explain as to why the amount of Rs.11,62,975/- be not recovered from him with 10% simple interest. The same is challenged in this OA.

The applicant contends that the amount was paid to him in terms of an Award, and though the Award was set aside by the High Court, the amount cannot be recovered from him unless there exist a specific order to that effect. Placing reliance upon the judgment of State Of Punjab & Ors vs Rafiq Masih (White Washer) (2014) 4 SCC 334|, the applicant contends that since he is a Class-IV employee, recovery cannot be effected from him. It is stated that the applicant has since retired from service, and his pensionary benefits are not released as yet.

The respondents filed a counter affidavit opposing the OA. It is stated that knowing fully well that the applicant is not entitled to be promoted to the post of SO, he initiated proceedings and even when the writ petition filed against the Award was pending, he initiated coercive steps to recover the amount. They contend that once the Award was set aside by the Division Bench of the High Court, the applicant is under obligation to refund the amount. The respondents contend that the order passed by the Division Bench was affirmed in SLP No.19699/2012.

We heard Ms. Meghna De with Shri Sachin Kumar for Shri Rajiv Aggarwal, learned counsel for the applicant and Shri R. V. Sinha with Shri Amit Sinha, learned counsel for the respondents.

It is a matter of record that the applicant filed ID No.31/2006 claiming the benefit of retrospective promotion from the date on which his juniors were promoted to the post of SO and ordered payment of arrears. The Labour Court passed an Award on 28.03.2009. The respondents filed WP No.1137/2009 challenging the Award. Even while it was pending, the applicant filed petition under Section 33(C)(1) of the Industrial Disputes Act, 1947, and recovered the amount of Rs.11,62,975/-. The writ petition was disposed of on 02.12.2011 holding that the applicant is entitled to ad hoc promotion as SO, and not regular promotion since he did not fulfil the eligibility conditions. In its judgment, in LPA No.78/2012, the Division Bench of the Delhi High Court has set aside the Award passed by the Labour Court. With that, the very entitlement of the applicant to seek promotion or to claim the amount ceased to exist.

In all fairness to the applicant, the respondents issued a show cause notice dated 31.10.2012. The applicant is not able to demonstrate as to how he is entitled to retain the amount recovered by him. When the sole basis for him to get the amount of Rs.11,62,975/- was the Award dated 24.03.2009, the amount is required to be refunded once the Award is set aside. The applicant carried the matter to Hon'ble Supreme Court and even there, nothing was said about recovery. The inevitable conclusion is that the applicant is under obligation to refund the amount.

Reliance is placed upon the judgment of Hon'ble Supreme Court in Rafiq Masih (supra). That is a case in which the Hon'ble Supreme Court held that if an employee has been extended any monetary benefit, not on the basis of representation made by such employee and occasion arises for recovery of the same at later stage, the recovery can be restrained, particularly in cases where the employee is of Class-IV. In the instant case, it is with a persistent pursuit of the proceedings that the applicant recovered a sum of Rs.11,62,975/- from the respondents. Once the very basis for payment of such amount disappeared with the allowing of LPA, there is no way he can retain it. The public exchequer cannot be burdened with the undue enrichment of persons like the applicant who are more conscious about their fragile rights than their duties.

Since the applicant has retired from service, we are of the view that the respondents cannot be permitted to levy interest. Therefore, we partly allow the OA setting aside that portion of the show cause notice which proposed to levy 10% interest on the applicant. It is accordingly directed that the amount payable by him shall be worked out after duly deducting the same, the respondents shall release amount payable to him, within three months from the date of receipt of copy of this order.