Himachal Pradesh High Court
Rajeev Kumar vs Union Of India & Others on 27 August, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No. 839 of 2015 a/w CWP Nos. 840,
.
841, 844 and 847 of 2015
Date of Decision: August 27, 2019
1. CWP No. 839 of 2015
Rajeev Kumar ...Petitioner.
Versus
Union of India & others ..Respondents.
2. CWP No. 840 of 2015
R.K.Meena ...Petitioner.
Versus
Union of India & others ..Respondents.
3. CWP No. 841 of 2015
Pramod Kumar ...Petitioner.
Versus
Union of India & others ..Respondents.
4. CWP No. 844 of 2015
J.S. Tomar ...Petitioner.
Versus
Union of India & others ..Respondents.
5. CWP No. 847 of 2015
R.S.S. Yadav ...Petitioner.
Versus
Union of India & others ..Respondents.
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2
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners: Mr. Hoshiar Kaushal, Advocate in all
.
petitions.
For the Respondents: Mr. Lokinder Paul Thakur, Senior Panel
Counsel, for respondents No.1 to 4 in all
the petitions.
Mr. Neeraj Gupta, Senior Advocate with
Mr.Ajeet Singh Jaswal, Advocate, for
respondent No.5 in all the petitions.
Vivek Singh Thakur, J. (Oral)
Petitioners r have preferred these petitions for quashing and setting aside impugned order dated 05.01.2015 (Annexure P-2), whereby office of respondent No.2 has directed recovery of Transport Allowance paid to the petitioners during their deployment with respondent No.5-NTPC Unit Dadri.
2. It is undisputed fact that petitioners herein are Class-C employees, who are working as Constables in Central Industrial Security Force (in short 'CISF') and were deputed in Security of NTPC Dadri during the years 2008 to 2013 and there was an arrangement between CISF and NTPC, whereby security personnels were to be provided by the CISF to NTPC and initially their pay was to be disbursed by the CISF but was to be reimbursed to CISF by respondent No.5-NTPC later on.
3. It is also an admitted fact that vide Office Memorandum dated 29.08.2008, category of the petitioners was allowed monthly Transport Allowance, but subject to the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 29/09/2019 02:40:18 :::HCHP 3 condition that Allowance was not admissible to those employees, who were provided with facility of Government transport and further that Office Memorandum dated 03.10.1997, whereby .
Transport Allowance was disallowed to the employees having been provided with official accommodation within one kilometer of office or within a campus housing the place of work and residence, was withdrawn. Meaning thereby that Transport Allowance was admissible irrespective of distance of official accommodation but inadmissible to those employees who were provided Government Transport.
4. During their posting with respondent No.5-NTPC, Transport Allowance was paid to the petitioners and others by their employer CISF and claim for its reimbursement was submitted to NTPC. However, NTPC did not reimburse the said Transport Allowance to CISF, on the ground that NTPC had provided transport facility to the security personnels deputed with it whereupon matter was again taken up by CISF authorities vide communication dated 03.06.2010 (Annexure-02) with NTPC, wherein, on the basis of recommendation of 6 th Pay Commission, it was canvassed that Central Government has sanctioned payment of Transport Allowance to its employees even if the distance from the residence to the office is '0' kilometer and further that no proper/dedicated vehicles are being provided by NTPC for transporting the CISF Duty Personnels. The fact remains that despite correspondences between NTPC and CISF, the amount was not reimbursed by NTPC, whereupon Office of ::: Downloaded on - 29/09/2019 02:40:18 :::HCHP 4 Commandant of CISF had directed to recover the Transport Allowance from petitioners which was paid to them.
5. Learned counsel for the petitioners relying upon the .
decision of Hon'ble Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 , has canvassed that present case is squarely covered by the ratio of law laid down by the Apex Court in this case and, therefore, even without adjudicating right of the petitioners, with respect to the entitlement of the Transport Allowance during the relevant period involved in the present petitions, and liability of respondents to pay the same, impugned recovery order/notice dated 05.01.2015 (Annexure P-2) is liable to be quashed.
6. Prayer of the petitioners to quash recovery order, has been refuted by the respondents by filing separate replies.
However in view of restricted arguments for quashing impugned recovery notice on the basis of ratio of law laid down by the Apex Court in Rafiq Masih's case, there is no necessity to discuss merits of other pleas raised and refuted by parties with respect to entitlement, liability to pay, payment and recovery of Transport Allowance.
7. Referring the judgment passed by the Apex Court in High Court of Punjab and Haryana and others vs. Jagdev Singh, (2016) 14 SCC 267, learned Senior Panel Counsel appearing for respondents No.1 to 4 has contended that petitioners are not entitled for benefit of ratio of law laid down by the Apex Court in Rafiq Masih's case.
::: Downloaded on - 29/09/2019 02:40:18 :::HCHP 58. Admittedly it is not a case here, where, for getting Transport Allowance, petitioners had submitted any papers or had applied for grant of the same, but the same was disbursed to .
them by the concerned authorities in pursuance to the Office Memorandum dated 29.08.2008 and other similar memorandum issued time to time and further it was also the view of the CISF authorities that the said Allowance was admissible to the petitioners and therefore, it was paid by CISF to petitioners for which they had not taken any overt act on their part nor any material has been placed on record to establish that petitioners had ever given any undertaking to refund the Transport Allowance paid to them.
9. So far as Jagdev Singh's case, relied upon by learned counsel for CISF, is concerned, in that case the Officer to whom payment was made was clearly put on notice in the first instance that any payment, found to have been made in excess, was required to be refunded and the said officer had also furnished an undertaking while opting for revised pay scale that he would refund the excess payment received by him, which is not a case in present petitions. It is also noticeable that in Jagdev Singh's case, the Apex Court has referred judgment passed in Rafiq Masih's case and has distinguished it but not overruled it. In given facts of present cases Jagdev Singh's case is of no help to the respondents.
10. In Rafiq Masih's case supra, the Apex Court has summarized the following few situations wherein recovery by the ::: Downloaded on - 29/09/2019 02:40:18 :::HCHP 6 employer would be impermissible in law, where payments have mistakenly been made by the employer in excess of their entitlement for which the employees were not having any role:
.
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
11. Cases of the petitioners are covered in situation (i) referred above in preceding para.
12. In view of the above discussion, without going into the issue as to whether transport facility was being provided by respondent No.5-NTPC to CISF duty personnels or not, and as to whether petitioners were entitled for the Transport Allowance ::: Downloaded on - 29/09/2019 02:40:18 :::HCHP 7 paid to them, or not, and without adjudicating claims and counter claims inter se CISF and NTPC, present petitions are allowed in view of the ratio of law laid down in Rafiq Masih's case .
and respondents/concerned authorities are restrained from recovering the Transport Allowance paid to the petitioners and the impugned order dated 05.01.2015 (Annexure P-2 in CWP Nos. 839, 841, 844 and 847 of 2015 and Annexure P-3 in CWP No.840 of 2015), is quashed and set aside.
Pending application(s), if any, also stand disposed of in aforesaid terms.r (Vivek Singh Thakur), Judge.
August 27, 2019 (Purohit) ::: Downloaded on - 29/09/2019 02:40:18 :::HCHP