Union Of India And Ors vs Hari Singh Vohra

Sanjay Karol, CJ

[1] Writ petitioner's claim (respondent herein) for entitlement of the Children Education Allowance with respect to third child stands disallowed by the learned Single Judge of this Court in W.P.(C) No.31 of 2017, dated 28th April, 2017 titled as SI/Min 911570088 Hari Singh Vohra versus the Union of India & others. There is no challenge to such findings by anyone of the parties.

[2] The challenge is with regard to the other direction i.e. quashing of office order dated 8th December, 2016 issued by the Accounts Officer, Group Centre, CRPF, Agartala whereby the writ petitioner stands directed to refund the amount in 10 equal installments which "fraudulently" stood withdrawn by him. The decision is based on the principles culled out by the Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334.

[3] It is seen that the writ petitioner was not entitled to the reimbursement of Children Education allowance yet knowingly such amount with respect to third child was claimed and drawn by him. It is not that the said amount was drawn only once. Continuously for more than 7 years, benefits of the scheme to which the petitioner was not entitled to, were availed of. It is not that petitioner was not aware of the terms of the office Memorandum in terms whereof, the amount for children's education was to be reimbursed. The benefit was only restricted up to a maximum of two children, which he was already availing.

[4] Petitioner was serving as a Sub-Inspector(Ministerial) in the Central Reserve Police Force in Group-C category. He is a literate person holding a responsible position. In Rafiq Masih (supra) the Apex Court has laid down the following guidelines, postulating a situation of hardship, governing the employee on the issue of recovery of payments having mistakenly made by the employee in excess of their entitlement which reads as under:

"It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly have been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would b 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 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."

[5] In the instant case, mistake is not that of the employer. The petitioner claimed reimbursement unauthorisedly and illegally despite being aware of the scheme/memorandum entitling the government employee to claim reimbursement up to a maximum of two children. The recovery of the amount cannot be said to be iniquitous, harsh or arbitrary, far outweighing the equitable balance of the employer's right to recover.

[6] In our considered view, the learned Single Judge seriously erred in understanding and applying the principles laid down in Rafiq Masih (supra). In any event, the said decision stands considered, clarified and distinguished by the Apex Court in High Court of Punjab and Haryana & others versus Jagdev Singh, (2016) 14 SCC 267 (2 Judge Bench).

[7] The State cannot be subjected to loss particularly when the employee knowingly claims reimbursement. What was not due to an employee at the first instance cannot be allowed to be retained by him illegally and unauthorisedly.

[8] It is not that the petitioner has retired. It is also not that he has no source of income. It is not that his other two children are not receiving the benefits under the scheme. The State exchequer must not be allowed to suffer for after all it is the public money which must be utilized for a public cause and purpose, strictly in accordance with law.

[9] As such, direction contained in the impugned judgment dated 28th April, 2017 passed by learned Single Judge of this Court in W.P.(C) No.31 of 2017 titled as SI/Min 911570088 Hari Singh Vohra Versus the Union of India & others, quashing the office order dated 8th December, 2016 stands interfered with and set aside with a further direction to the appellant to recover the amount in terms of said communication, in 10 equal installments.

[10] The appeal is disposed of in the aforesaid terms. Pending application(s), if any, also stands disposed of.