Central Administrative Tribunal - Delhi
Hospital Employees Union & Others vs Municipal Corporation Of Delhi Through ... on 13 July, 2009
Central Administrative Tribunal Principal Bench TA No.481/2009 New Delhi this the 13th day of July, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) Hospital Employees Union & Others -Applicants (By Advocate Shri Rajiv Agarwal) -Versus- 1. Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandni Chowk, Delhi-110006. 2. Director of Health Administration, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi-110006. 3. The Medical Superintendent, Swami Dayanand Hospital, Shahdara, Delhi-110095. -Respondents (By Advocate Shri Amit Kumar Paul) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicants through this TA impugn respondents order dated 15.4.2008 whereby recovery of patient care allowance (PCA) from ministerial staff of Swami Dayanand hospital has been made w.e.f. 1.4.2008. This has been done on the ground that the ministerial staff has been paid hospital patient care allowance (HPCA) till October, 2007 but was stopped from 1.11.2007 on audit objection, as the revision of PCA was not done in case of ministerial staff. Applicants seek stoppage of the recovery and treat them at par with similarly circumstanced ministerial staff working in other hospitals.
2. Brief facts show that vide memorandum dated 25.1.1988, issued by the Ministry of Health and Family Welfare HPCA was made admissible to Group C and D (non-ministerial), including applicants, at the rate of Rs.75/- per month w.e.f. 1.12.1987. However, another office order dated 12.2.1993 made payment of HPCA to Group C and D non-ministerial staff w.e.f. 1.4.1987 instead of 1.12.1987 and this was made applicable to the ministerial employees in hospitals under MCD having bed strength of 30 or more w.e.f. 1.4.1991. An office order dated 22.10.1997 enhanced the HPCA to Rs.160/- p.m. w.e.f. 1.8.1997 and Rs.780/- w.e.f. 29.12.1998. A clarification of MCD issued on 22.2.2000 made applicable revision of HPCA/PCA as per order dated 12.2.1993. Accordingly, Group C and D ministerial staff in Swami Dayanand hospital were being paid HPCA/PCA at the rate of Rs.690/- per month. However, the order was revoked and payment of HPCA to ministerial staff w.e.f. 1.11.2007 was stopped and recovery was effected from their salary w.e.f. 1.11.2008.
3. Learned counsel of applicants would assail the order on the ground that whereas in other hospitals ministerial staff are getting the revised HPCA/PCA, which when denied to applicants constitute invidious discrimination without any justified basis.
4. Learned counsel would also contend that the revised allowance was paid to the applicants vide office order dated 29.9.1999 and as per clarification dated 22.2.2000 it was stopped on a mistake being deducted after seven years, which cannot be done without affording an opportunity to applicants, which has not been given, causes civil consequences, in violation of principles of natural justice.
5. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that insofar as PCA to ministerial staff is concerned, there is no mention of ministerial staff and the applicants were wrongly paid the same, which on an audit objection was rightly withdrawn and the recovery effected, as the applicants are not entitled to payment of such allowance. It is also stated that if this allowance is being paid in other hospitals to ministerial staff, negative equality would not allow them to bestow any right. For this the learned counsel has relied upon a decision of the Apex Court in Panchi Devi v. State of Rajasthan, 2009 (2) SCC 589. Learned counsel has also relied upon the decision of the Apex Court in Videsh Sanchar Nigam Ltd. and another v. Ajit Kumar Kar and others, 2008 (11) SCC 591 to contend that non-refund applies only to salary and not to allowances.
6. On careful consideration of the rival contentions of the parties, a mistake of a Government on audit objection can be rectified but after following the due process of law, as held by the Apex Court in Union of India v. Narinder Singh, 2008 (1) SCC (L&S) 547. Insofar as recovery is concerned, though the allowance was disbursed right from 1999-2000, this error has been deducted later on after a gap of seven years. The Apex Court in Syed Abdul Qadir v. State of Bihar, 2009 (1) SCC (L&S) 744 ruled that equitable principle of recovery of any excess amount will apply when there is no misrepresentation or fraud on the part and excess payment has been made by applying wrong principle, recovery is barred, as the error was not deducted within a short time. In the above view of the matter the decision of the larger Bench as referred to by the respondents would hold the field. Though equality cannot be applied on negative side, yet recovery of excess amount from the applicants cannot be countenanced in law.
7. Resultantly, TA is allowed to the extent that though the applicants would not be entitled to the revised PCA/HPCA, yet the recovery ordered against them of excess payment is set aside. If any recovery is already effected from applicants, the same shall be refunded to them, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.