Central Administrative Tribunal - Delhi
Sunil Bhatia vs Govt. Of Nctd on 15 January, 2024
1
OA 2068/2021
C-5/item-25
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./2068/2021
Order reserved on :07.12.2023
Order pronounced on :15.01.2024
Hon'ble Dr. Chhabilendra Roul, Member (A)
Sunil Bhatia, Aged-62 Years,
S/o Late Sh. Ramjiwaya Bhatia,
Retired as Pharmacist (Group C employee),
Deep Chand Bandhu Hospital
Ashok Vihar, New Delhi
GNCT Delhi
R/o H-48, DDA Flat, Ashok Vihar, PH-1
Delhi-110052 ...Applicant
(Through Mr. Padma Kumar S., Advocate)
VERSUS
1. Govt. of NCT Delhi
Through the Chief Secretary,
Delhi Secretariat,
IP Estate, New Delhi.
2. Secretary
Health & Family Welfare
Department of Health & Family Welfare
Govt. of NCT Delhi
9th Level, A Wing
IP Extension, Delhi Secretariat,
New Delhi-110002
3. Secretary
Department of Finance
Government of NCT Delhi
4th Level, A Wing
Delhi Secretariat,
I.P. Estate, New Delhi
4. Director,
Directorate of Health Service
Govt. of NCT of Delhi
2
OA 2068/2021
C-5/item-25
Karkardooma, Delhi-110032
5. Head of Office
Deep Chand Bandhu Hospital,
Ashok Vihar, New Delhi ...Respondents
(Through Mr. Amit Yadav with Dr.Monika Bhargava,
Advocate)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant seeking the following reliefs:
(i) Quash and set aside the impugned order dated 17.11.2020 (ANNEXURE A-1).
(ii) Direct the respondents to release the amount of Rs.3,10,943 recovered from the Applicant with interest thereon.
(iii) Direct the respondents to release the increment due on 01.07.2019 with arrears thereon and recalculate the Pension, Gratuity, Leave Encashment and Commutation of Pension on the revised Pay Last Drawn.
(iv) Direct the respondents to release the entire arrears arising out of Para (iii) above.
(v) Any other relief which this Hon'ble Tribunal may be pleased to issue."
2. Brief facts of the present case is that the applicant was appointed as Pharmacist in the Directorate of Health Services, Government of NCT of Delhi on 5.10.1983. The applicant was granted three financial upgradations following 3 OA 2068/2021 C-5/item-25 the introduction of Assured Career Progression Scheme and Modified Assured Career Progression Scheme by the Government of India. The respondents revised the pay of the applicant vide order dated 13.06.2019. Through this revision, the pay of the applicant was reduced with effect from 1.09.2008 onwards till the date of his retirement. Following this revision of the pay scale, the respondents vide letter dated 1.08.2019 ordered recovery of Rs.3,10,943/- at the rate of Rs.51825/- per month from July, 2019. Being aggrieved, the applicant approached this Tribunal in OA No.2880/2019. Vide order dated 26.09.2019, this Tribunal stayed further recovery from the pay of the applicant. However, by the time the order was complied with, three installments had already been recovered from the applicant. The applicant retired from service on superannuation on 31.12.2019. OA 2880/2019 was ultimately decided by the order of this Tribunal dated 3.09.2020 as follows:
"6. We, therefore, dispose of the OA directing that -
(a) The order dated 1.08.2019 is set aside and is left open to the respondents to issue show cause notice and take further steps limited to the aspect of recovery.
(b) The respondents shall determine and release the pension and other benefits of the applicant as per the pay structure indicated in the order dated 13.06.2019 and in accordance with the other relevant provisions of law within a period of two weeks from the date of receipt of a copy of the order."4 OA 2068/2021
C-5/item-25 2.1 The respondents, in compliance of the said order, issued a Show Cause Notice (SCN) dated 5.10.2020 to recover the balance amount of Rs.1,55,468/-. The applicant was required to submit reply within three days so that the respondents could take a final decision on the said recovery notice. The applicant submitted detailed reply vide letter dated 8.10.2020, drawing attention of the respondents regarding the judgment of the Hon'ble Apex Court in State of Punjab & ors. Vs. Rafiq Masih (White Washer) in Civil Appeal No.11527/2014. However, the respondents vide order dated 17.11.2020 conveyed to the applicant that the competent authority has approved recovery of Rs.1,55,468/- towards overpayment of pay and allowances. Being aggrieved, the applicant has filed the present OA seeking the aforementioned reliefs.
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder.
4. The applicant in the OA and through his counsel during the arguments has taken the following grounds seeking the aforementioned reliefs.
4.1 The respondents issued SCN to the applicant vide letter dated 5.10.2020 (Annexure A-7). Learned counsel for 5 OA 2068/2021 C-5/item-25 the applicant states that this letter is not a SCN rather it is like a recovery order. The SCN does not give the reasons for recovery. It states that an amount of Rs.1,55,468/- is pending recovery from the applicant. However, as the initial recovery of Rs.3,10,943/- was quashed by the Tribunal, the fresh SCN should have included the total amount of Rs.3,10,943/-. Instead, the SCN mentioned only the balance amount of Rs.1,55,468/-. In view of this, the respondents have not resorted to de novo SCN. Rather a notice for recovery of the balance amount was issued. Accordingly, the SCN is defective.
4.2 The second ground taken by the applicant in support of his claim is that he was holding a Group `C' post and was in the last year of retirement. At the time of the first SCN, he was left with less than one year of service. At the time of issuing fresh SCN dated 5.10.2020, the applicant had already retired. The law laid down by the Hon'ble Apex Court in Rafiq Masih (supra) is that it is impermissible in law to recover any irregular payment from a Group `C' employee who has retired or is retiring within one year of the order of recovery.
4.3 The applicant further states that there are two persons who are similarly placed, namely Shri R.P. Arora, Pharmacist and Shri Sushil Kumar Gulati, Pharmacist who 6 OA 2068/2021 C-5/item-25 have got their recovery orders reversed following the orders passed by this Tribunal in OA No.535/2017 and OA No.500/2017, respectively. So, applying the ratio of the judgment in Rafiq Masih (supra) as well as judgments in the aforementioned OAs, learned counsel for the applicant avers that recovery order dated 17.11.2020 may be declared illegal and quashed. Further, the respondents should be directed not to effect any recovery as well as refund the amount of recovery which has already been effected from the applicant. 4.4 Learned counsel for the applicant also draws attention to the orders passed by this Tribunal in OA numbers 185/2022 and 2251/2021 wherein this Tribunal has, applying therein the ratio of the judgment in Rafiq Masih (supra), directed the respondents therein to refund all the amounts of recovery from the applicants and pay interest payable for the relevant period at GPF rates.
5. Per contra, learned counsel for the respondents draws attention of the Tribunal to the counter affidavit filed by the respondents in response to the OA. He states that the applicant's pay was revised vide order dated 13.06.2019. As a result, the pay of the applicant was reduced with effect from 1.09.2008. Accordingly, an amount of Rs. 3,10,943/- was found overpaid to the applicant because of this irregular pay fixation. In pursuance of the order dated 3.09.2020 by 7 OA 2068/2021 C-5/item-25 this Tribunal in OA No.2880/2019, a fresh SCN was issued to the applicant. Considering his contention, the competent authority had ordered for recovery of balance amount of Rs. 1,55,468/- vide order dated 17.11.2020 (impugned order). He avers that there is no illegality or irregularity in the said impugned order as due procedure has been followed and order of the Tribunal has been complied with. 5.1 As regards the claim of the applicant that he has not been granted annual increment with effect from 1.07.2019, learned counsel for the respondents referred to annexures R- I and R-II attached to the counter affidavit stating that the basic pay of the applicant has been revised to Rs.74,300/- giving annual increment from 1.07.2019. In view of this, the relief sought regarding granting him annual increment with effect from 1.07.2019 is not tenable.
5.2 As regards the applicability of the ratio of the judgment in Rafiq Masih (supra), learned counsel for the respondents avers that the Hon'ble Apex Court in Chandi Prasad Uniyal & ors. Vs. State of Uttarakhand & ors., Civil Appeal No.5899/2012 decided on 17.08.2012 has held that:
"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such 8 OA 2068/2021 C-5/item-25 situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
5.3 Citing the aforementioned judgment, learned counsel for the respondents avers that the judgment of the Hon'ble Apex Court in Rafiq Masih (supra) has not overruled the judgment of the Apex Court in Chandi Prasad Uniyal (supra) case. In view of this, the irregular pay fixation and the excess payment thereof to the applicant needs to be recovered from him. The judgment of the Apex Court in Rafiq Masih (supra) is a judgment in personam and cannot be applied in all cases where excess payment has been made to a government servant.
6. I have heard arguments of the learned counsels for the parties and perused the record of the case thoroughly. 6.1 I do not agree with the contention of the learned counsel for the respondents that the Apex Court in Rafiq Masih case (supra) has not considered the judgment in 9 OA 2068/2021 C-5/item-25 Chandi Prasad Uniyal (supra) case. Rather it is the other way round. While the Division Bench was seized of the Rafiq Masih case, a reference was made to a Three Judge Bench of the Apex Court to find whether there was a conflict between the judgment in Chandi Prasad Uniyal case, on the one hand and Shyam Babu Verma Vs. Union of India, (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana, 1995 Supp (1) SCC 18, on the other. The Three Judge Constitution Bench of the Apex Court in the said reference in Rafiq Masih case, vide its order dated 8.07.2014, clarified that there is no conflict between Chandi Prasad Uniyal case (supra) invoking Article 136/141 of the Constitution of India and Shyam Babu Verma (supra) and Sahib Ram (supra) invoking Article 142 of the Constitution of India. The Chandi Prasad Uniyal case (supra) has stated that in certain cases the State has the right to recover excess amount in case the payment is due to any misrepresentation or fraud on the part of the recipient. In para 17 of the judgment in Chandi Prasad Uniyal case (supra), it has been stated that:
"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."
The Rafiq Masih (supra) case has expanded few instances as mentioned in Chandi Prasad Uniyal case (supra) and said that in the instances and circumstances mentioned in the 10 OA 2068/2021 C-5/item-25 said case, it is impermissible in law to recover excess amount paid to the government servant on account of irregular or wrong pay fixation or allowances. The judgment of the Apex Court in Rafiq Masih (supra) case has further been reiterated and reaffirmed by the Apex Court in Thomas Daniel Vs. State of Kerala & Ors. in Civil Appeal No.7115 of 2010, decided on 2.05.2022.
6.2 In the instant case, there is no allegation of misrepresentation or fraud on the part of the present applicant. It was irregular fixation of pay by the concerned authorities amongst the respondents. In view of this, the ratio of Rafiq Masih (supra) case is fairly applicable in the instant case. Accordingly, the order dated 17.11.2020 (impugned order) by the respondents is contrary to settled law.
6.3 In view of the above, the impugned order dated 17.11.2020 is quashed. By implication, the recovery order dated 1.08.2019 for recovery of Rs.3,10,943/- is also quashed. The respondents are directed to refund the entire amount which has already been recovered from the 11 OA 2068/2021 C-5/item-25 applicant in pursuance of their order dated 1.08.2019.
7. The OA is disposed of in the above manner. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /dkm/