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Judgment
Harvinder Kaur Oberoi, Member (J)
The applicant was initially appointed as Craft Instructor and posted at ITI, Jaffarpur, Tilak Nagar Jail Road, New Delhi. She was later promoted to the post of Group Instructor. She retired on attaining the age of superannuation on 31.10.2021. She was in receipt of all the retiral dues except for an amount of Rs. 1,06,081/- which has been withheld from her gratuity vide orders dated 24.11.2021 and 01.12.2021. Aggrieved by the same, the applicant has preferred the present O.A. seeking the following relief(s):-
“(i) Set aside and quash the impugned order/letter dated 24.11.2021/01.12.2021 and 17.04.2023 to the extent of deduction/recovery from Gratuity as Ann-A (colly).
(ii) Direct the Respondents to refund recovered amount of Rs.1,06,081/- along with 15% interest to the Applicant that was recovered from her Retirement Gratuity after her retirement in view of the judgment of Hon'ble Supreme Court of India in the matter of State of Punjab & Ors Vs, Rafiq Masih & Ors.
(iii) Pass any other as deemed it and proper in the facts and circumstances of the case.
(iv) Award cost.”
Learned counsel for the applicant while drawing attention to the counter reply submits that on account of a complaint made by Shri Kishan Chand regarding wrong fixation in respect of four Group Instructors, including the applicant, an audit was conducted and in pursuance of audit objection, pay of the applicant was re-fixed w.e.f. 28.08.2003. Accordingly, a recovery amount of Rs.1,06,081 was calculated and vide order dated 25.08.2021, applicant was directed to deposit the said amount. Being a retired employee, he would draw strength from the decision of the Hon’ble Apex Court in the matter of State of Punjab and Ors. Versus. Rafiq Masih and Ors (2015) 4 SCC 334. The relevant portion of the said judgment reads as under:-
“12. 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.
Learned counsel for the respondents vehemently opposes the O.A. He submits that in reference to memo dated 25.08.2021 the applicant submitted a representation dated 07.09.2021 stating that she is Senior to Mr. Kishan Chand. In response to her representation dated 07.09.2021, a memorandum was issued to her on 28.09.2021 for obtaining her consent in writing either to forward the case to DTTE or process may initiated for preparing pension papers and submission in concerned PAO. Accordingly, the applicant consented to forward her Service Book to DTTE (HQ) for rectification vide her reply dated 30.09.2021. Therefore, her case was submitted to DTTE for vetting and the same was found in order and recovery may be made accordingly. Thereafter, the applicant was again directed on 07.10.2021 to deposit the recovery amount to this office as per pay fixation but she has not chosen to do so. Accordingly a memorandum dated 12.10.2021 was issued to the applicant directing her to deposit the recovery amount of Rs.1,06,081/- otherwise the same will be deducted from her gratuity amount. In spite of the said memorandum, she did not prefer to deposit the recovery amount to this office.
Heard the learned counsel for the parties as also gone through the pleadings on record.
The undisputed facts are that the applicant retired on 31.10.2021. She was in receipt of all the dues except for an amount of Rs.1,06,081/- which has been withheld from her gratuity. The counter reply confirms that the same has been done on account of refixation of pay. Moreover applicant did not have a role to play in fixation/wrong fixation. As such applicant cannot be made to suffer. The consent given by applicant for re-fixation and recovery was obtained at the time of her retirement and is most likely to have been given under duress, to ensure timely release of her other retiral dues.
I am of the considered opinion that though the respondents were obliged to refix the pay and allowances of the applicant, however, the amount could not be withheld by the respondents. Gratuity is not a bounty but the benefit earned by the applicant. I am guided by the decision of the Hon’ble Apex Court in Rafiq Masih (supra) and the DOP&T OM issued thereafter on 02.03.2016. I have no hesitation in arriving at the conclusion that the case of the applicant is covered by the said OM.
In view of the above, the O.A. is allowed and the respondents are directed to release the withheld amount in favour of the applicant positively within eight weeks from the date of receipt of a certified copy of this order. There shall be no order as to costs.