Calcutta High Court (Appellete Side)
Shri Krishna Kumar Kundu & Others vs Union Of India & Others on 20 April, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
1 13 20.04.2017 rpan Ct. No.01 W.P.C.T. No. 9 of 2017 Shri Krishna Kumar Kundu & Others Vs. Union of India & Others Mr. Ashoke Kumar Chakraborty, Mr. Arpa Chakraborty ... for the Petitioners.
Mr. Arabinda Sen ... for the Union of India.
An order, passed by the Central Administrative Tribunal, Calcutta Bench on 16th November, 2016 directing the Petitioners to furnish an undertaking, has been challenged in this writ petition. The Petitioners have filed Original Application No.1186 of 2013 before the Tribunal challenging the recovery of certain amounts from their salaries, which according to the Union of India, were paid in excess of the salaries due to them. An interim order was passed on 16th September, 2014 by the Tribunal directing that no recovery should be made in terms of the Office Order dated 2nd September, 2014 till 17th November, 2014. This interim order was extended from time to time. On 16th November, 2016, the Tribunal again heard the application for interim relief and on that date directed the Petitioners to file an undertaking within 15 days that in the event the original application fails, they would return the amount paid to them under the interim order within thirty days from the date of the final order in the original application. The Tribunal further directed that in case of failure to file such an undertaking within the stipulated time, the interim order would automatically stand vacated. The interim application was disposed of accordingly. 2
Mr. Chakraborty the learned Counsel appearing for the Petitioners submits that the Union of India had not sought any order for vacating the stay, granted on 16th September, 2014. He contends that the Tribunal suo motu has directed the Petitioners to file an undertaking. The learned counsel points out that the Department of Personnel & Training (DoPT) has issued an office memorandum on 2nd March, 2016 in tune with the decision of the Supreme Court in the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Ors., reported in (2015) 4 SCC 334. The learned counsel submits that since the Petitioners are Group - 'C' employees, they are not liable to refund the amounts as no recovery will be made from employees of Group - 'C' especially if the excess payment has been made for more than five years.
The learned Counsel for the Union of India tries to submit that the Petitioners are working in an institute which is a Government of India undertaking and, therefore, DoPT Circular would not be applicable.
In an earlier decision in W.P.C.T. No.275 of 2016, decided on 11th January, 2017, we had observed that the Tribunal ought not to modify interim orders without any application being made for such modification. We had also observed that when the Tribunal suo motu modified the earlier interim order passed, it was necessary for it to specify the grounds which called for such modification of the initial interim order which was passed almost two years earlier.
The facts in the present case are similar. Without an application, being made by the Union of India, the Tribunal has modified its earlier interim order.
In any event, in view of the DoPT Circular issued on 2nd March, 2016 no recovery can be made from the Petitioners, as admittedly they are Group - 'C' employees and 3 had been paid excess amount for more than five years. The DoPT Circular is applicable to the employee as All India Institute of Hygiene & Public Health, where the Petitioners are employed, is set up under the Ministry of Health & Family Welfare, Government of India.
In view thereof, the impugned order of the Tribunal is, therefore, set aside inasmuch as to the extent that it directs furnishing of an undertaking for return of excess payment. No recovery shall be made from the Petitioners' salaries till the disposal of the original application. The original application will be heard in accordance with law.
The writ petition is disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.)