Delhi High Court - Orders
Yogesh Anand vs Delhi Transco Ltd And Anr on 6 October, 2022
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4948/2012
YOGESH ANAND ..... Petitioner
Through: Mr. Sunil Malhotra and Mr.
Vivek Kumar Karan,
Advocates alongwith LRs of
petitioner
versus
DELHI TRANSCO LTD AND ANR ..... Respondents
Through: Ms. Avnish Ahlawat, SC
(DTL) with Ms. Palak
Rohmetra, Mr. Siddhanth
Tyagi, Ms. Laavanya Kaushik
and Ms. Aliza Alam, Advocates
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 06.10.2022
1. The instant writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner seeking the following reliefs:-
"a) Issue Writ of Mandamus or any other appropriate writ directing the Respondent no.l to recall/ withdraw letter dated 28.06.2012 addressed to Sr. Manager (HR) HUDCO requesting therein for Rs. 2,94,180/- from the petitioner and remit the same to DTL and;
(b) Direct the Respondent No. 1to make the payment of PRP to the petitioner for the years 2009 to 2012 along with interest...."Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 1 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32
2. Legal heirs of the petitioner are present in Court. On instructions of the legal heirs, learned counsel appearing on behalf of the petitioner submitted that at this stage, he is not pressing prayer (b) of the petition and prays for leave for the legal heirs of the petitioner to approach the concerned authority of the respondent no. 1 by way of filing a detailed representationseeking Performance Related Pay (hereinafter "PRP") in favour of the petitioner/hislegal heirs. It is also prayed that a direction may be issued to the concerned authority to decide the representation of legal heirs of the petitioner within prescribed period.
3. With respect to the prayer (a) of the petition, it is submitted that the letter dated 28th June 2012 issued by the respondent no. 1 to the Senior Manager (HR), HUDCO, advising himto affect the recovery from the petitioner of Rs. 2,94,180/- is liable to be set aside as the same had been issued contrary to the provisions of the law.
4. It is submitted that the petitioner was granted Productivity Linked Incentive (hereinafter "PLI"), approved by HUDCO, for the year 2007-08, on 17th November 2008, in accordance with the approved terms and conditions of deputation on foreign service with the due approval of the Chairman & Managing Director of the respondent no. 1. Further, on 8th November 2008, the competent authority of the respondent no. 1 approved the payment of two months' basic pay as PLIto be paid by the respondent no. 2 in favour of the petitioner.It is submitted that on 4th March 2010, the competent authority of respondent no. 1 further approved the payment of the PLI for the year 2008-09 as well. However, thereafter, the respondent no.
Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 2 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:322 vide its letter dated 24th June 2011, stated that the scheme of PLI had been discontinued from the year 2009-10 and in its place PRP had been introduced. The petitioner approached the concerned authority of the respondent no. 1 for examination of his request for payment of PRP, however, the same remained pending for more than 9 months.
5. It is submitted that ultimately, the petitioner got relieved from the services of respondent no. 1 on expiry of the deputation period and joined the respondent no. 2, his parent organisation, where he was informed about the calculation method of PRP for the year 2010-11, and the petitioner thereafter made a representation for payment of PRP for the years 2009-10 and 2010-11 as conveyed to him by the respondent no. 2. Yet instead of granting the same, the respondent no. 1 issued the letter dated 28th June 2012 to the Senior Manager (HR) HUDCO for recovery of the amount paid as in the year 2008-09 and further asked him not to release the PRP in favour of the petitioner for the years 2009-10. Learned counsel for the petitioner submitted that the impugned letter seeking recovery of the PLI paid and barring the release of PRP for subsequent years was not in accordance with law and hence, the same is liable to be set aside.
6. Learned Standing Counsel for the respondent no. 1 vehemently opposed the instant petition and submitted that there is no error or illegality in the impugned letter dated 28th June 2012 and the instant petition is devoid of merit and hence, liable to be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. The primary question regarding the impugned letter dated 28th June 2012 which is to be adjudicated upon to examine whether the same is valid and legal is to see whether the amount paid to an Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 3 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32 employee, whether by way of incentives or increments, can be recovered from him subsequently by the employer. This issue has been addressed and decided by the Hon'ble Supreme Court in Thomas Daniel vs. State of Kerala, 2022 SCC OnLine SC 536, wherein the underlaid was observed:-
"9. This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.
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11. In Col. B.J. Akkara (Retd.) v. Government of India this Court considered an identical question as under:
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 4 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32 emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121], Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652]):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 5 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32 courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery......"
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13. In State of Punjab v. Rafiq Masih (White Washer) wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
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18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 6 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32 been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(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."
9. Hence, the position of law is clear that an excess amount granted to the petitioner could not be recovered from him by the employer/respondents in absence of any fraud, misrepresentation, fault or default on his part. Therefore, allowing such kind of communication, as the letter dated 28th June 2012, to survive would Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 7 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32 not onlybe against the principles of equity and fairness but would alsoamount to gross injustice.
10. After considering the contentions made in the instant writ petition, counter affidavit and the rejoinder affidavit as well as the observations made by the Hon'ble Supreme Court on the subject matter, this Court is inclined to allow prayer (a) sought on behalf of the petitioner.
11. Accordingly, the prayer (a) made on behalf of the petitioner in the writ petition is allowed and the communication dated 28th June 2012 is quashed.
12. So far as prayer (b) is concerned, legal heirs of the petitioner are allowed to file a detailed representation before the concerned authority of respondent no. 1 within four weeks from today. On receiving the said representation, the concerned authority of respondent no. 1 is directed to give an opportunity of hearing to the parties and thereafter pass a speaking order in accordance with law, expeditiously, preferably within eight weeks. It is made clear that if any other document(s) is required by the authority for proper adjudication of the application, the petitioner shall be given reasonable time to file the same.
13. With the aforesaid directions, the petition stands disposed of.
CHANDRA DHARI SINGH, J OCTOBER 6, 2022 Aj/Ms Signature Not Verified Digitally Signed W.P.(C) 4948/2012 Page 8 of 8 By:DAMINI YADAV Signing Date:07.10.2022 14:35:32