Central Administrative Tribunal - Delhi
Shri Hemant Kumar Swamy vs Union Of India on 13 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2024/2013 with O.A. No.2025/2013 Reserved On:06.01.2014 Pronounced on:13.01.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) OA No.2024/2013 Shri Hemant Kumar Swamy S/o Late Shri Har Pratap Swamy, DMS, Under Dy. Chief Material Manager, Northern Railway, Shakurbasti, Delhi. Applicant OA No.2025/2013 Shri Randhir Chand Nath S/o Late Shri Nek Chand Office Superintendent, DMS, Under Dy. Chief Material Manager, Northern Railway, Shakurbasti, Delhi. Applicant By Advocate: Mrs. Meenu Mainee. Versus Union of India Through: 1. The General Manager, Northern Railway, Baroda House, New Delhi. 2. The Chief Material Manager, Northern Railway, Shakur Basti, Delhi. Respondents By Advocate: Shri Shailender Tiwary. ORDER
Honble Mr. G. George Paracken, Member (J) Both these Original Applications are identical and they are being heard and disposed of by this common order.
2. The Applicants are aggrieved by the impugned Office Order No.190 dated 10.09.2012 and Office Order No.184 dated 23.08.2012 respectively by which their pay has been refixed and ordered recovery of the excess amount paid to them.
3. Brief background of the case is that 50 colleagues of the Applicants had filed by OA No.1649/1997 - Mohinder Singh and Others before this Tribunal and it was allowed on 09.07.2003. By the said order this Tribunal granted seniority to the Applicants therein from the date of their ad hoc promotion as Clerks with consequential benefits. Thereafter, the Applicants and others filed OA No.1900/2007 - Hemant Kumar Swamy and Others and by order dated 12.12.2008, this Tribunal extended the aforesaid benefits to the Applicants therein also. Later on, the order passed by this Tribunal in OA No.1649/1997 (supra) was challenged before the Honble High Court of Delhi in Writ Petition No.2237/2004 but the same was withdrawn consequent upon out of court compromise between the parties. Thus the order in the said OA has become final.
4. However, some of the seniors of the Applicants filed OA No.1978/2010 Shri Balwinder Singh and Shri N.C. Sharma before this Tribunal challenging their de-empanelment and the consequential reversion from DMS-II to DMS-III. The Applicants herein were also party respondents in it. A Full Bench of this Tribunal heard the aforesaid OA and held vide its order dated 23.12.2011 that its decision in OA No.1900/2007 dated 12.12.2007 was unsustainable. However, by that time, the Respondents had already fixed the pay of the Applicants vide their Office Order No.185 dated 11.07.2009 and they have been getting the higher pay. Therefore, after the aforesaid order of the Full Bench in OA No.1978/2010 (supra) dated 23.12.2001, the Dy. CMM (SSB) of the Respondent-Department, vide its order No.1978/2010/2012(3) SSB dated 24.07.2012, held that the aforesaid Office Order No.185 dated 11.07.2009 has become void ab initio. Accordingly, vide the impugned Office Order No.190 dated 10.09.2012 in the case of Hemant Kumar Swamy in OA No. 2024/2013 (supra) and vide order No.184 dated 23.08.2012 in the case of Randhir Chand Nath in OA No.2025/2013 (supra), they have refixed their pay. The Respondents have also directed that the arrears paid to them consequent to aforesaid Office Order No.185 dated 11.07.2009 and Office Order No.35 dated 10.06.2010 be calculated and recovered from their pay in easy instalments.
5. The submission of the learned counsel for the Applicants Mrs. Meenu Mainee is that in terms of the order of the Full Bench in OA No.1978/2010 (supra), the Respondents could not have made any recovery as the alleged extra payment made to them was neither on account of any misrepresentation on their part nor on account of bona fide mistake on the part of the Respondents. Further according to the learned counsel, it is not the case of the Respondents also that the Applicants have received the alleged excess payment without any authority of law. She has also submitted that any recovery at this belated stage from the monthly pay of the Applicants will cause extreme hardship to them. In this regard, the learned counsel for the Applicants has relied upon the judgment of the Apex Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakahand and Others JT 2012 (7) SC 460 wherein it has been held that excess payments made due to wrong/irregular pay fixation can always be recovered except in few exceptional circumstances as held by the Apex Court in Yogeshwar Prasad and Ors vs. National Institute of Education Planning and Administration and Ors. JT 2010 (12) SC 278, Syed Abdul Qadir and Ors. vs. State of Bihar and Ors. JT 2009 (1) SC 385 and Col. B.J. Akkara (retd.) vs. Government of India and Ors. JT 2006 (9) SC 125. The relevant part of the said judgment reads as under:-
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
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 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.
17. 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.
18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant's salary in twelve equal monthly installments starting from October 2012.
6. The Respondents have filed their reply. They have not disputed the facts stated by the Applicants. They have also relied upon the very same judgment in Chandi Prasad Uniyal and Others (supra) and submitted that they are fully justified in recovering the excess amount paid to the Applicants, otherwise it would amount to undue enrichment.
7. We have heard the learned counsel for the Applicants Mrs. Meenu Mainee and the learned counsel for the Respondents Shri Shailendra Tiwari. Admittedly, the pay of the Applicants has been fixed by the Respondents in terms of the earlier orders of this Tribunal in OA No. 1649/2007 (supra) and OA No.1900/2007 (supra). The question that was considered by the Apex Court in Chandi Prasad Uniyal and Others (supra) was whether the appellants can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on their part? After having gone through the various judgments in this regard like the one in Yogeshwar Prasad and Ors (supra), Syed Abdul Qadir and Ors. (supra) and Col. B.J. Akkara (retd.) (supra) etc. it held that it had not laid down any principle of law that only if there was any misrepresentation or fraud on the part of the recipients of the excess money, it could be recovered. Further it has held that the question to be asked is whether excess money has been paid due to a bona fide mistake or not. If the excess payment made due to bona fide mistake, the said mistake can be corrected by recovering the same. As rightly pointed out by the Applicants counsel, there was absolutely no misrepresentation on the part of the Applicants in getting the higher pay or there was any bona fide mistake on the part of the Respondents in granting the same. It was also not a case of payment due to wrong application of any law or any irregular procedure. Both the orders of the Respondents by which the Applicants pay have been enhanced and then reduced were based on the directions of this Tribunal. The Applicants have also utilized excess amount received by them in the bona fide manner. Hence, any recovery of the amount so paid at a later stage from the salary of the Applicants causes extreme financial hardship. The maxim Actus Curiae Neminem which means the act of the Court shall not prejudice no one shall apply in such cases.
8. In view of the above position, we allow this OA and quash and set aside the impugned Office Order No.190 dated 10.09.2012 in OA No.2024/2013 and the impugned Office Order No.184 dated 23.08.2012 in OA No.2025/2013 to the extent of the directions of the Respondents to effect recovery of the excess payments made to the Applicants. If the Respondents have already made any such recovery, the same shall be refunded to the Applicants immediately but in any case within a period of one month from the date of receipt of a copy of this order.
9. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh