Petitioner challenged orders directing recovery of excess salary due to non-entitlement to promotional pay grades. Court held recovery was lawful as petitioner voluntarily declined promotion, disentitling him to benefits, and post-decisional hearing sufficed.
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Court No. - 28
Case :- WRIT - A No. - 51036 of 2009 Petitioner :- Chunni Lal Respondent :- State Of U.P. & Another Counsel for Petitioner :- Harish Chandra Mishra,Narendra Mohan Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
Heard Sri Narendra Mohan, learned counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner has assailed the order dated 1/2.05.2009 and 05.09.2009 directing recovery of certain salary dues which were paid in excess of the entitlement of the petitioner. The petitioner was not found entitled to grant of time scale pay grade. These amounts were disbursed to him.
The petitioner was working as a Clerk in the respondent department. He was promoted to the post of Samalochak, and by order dated 16.12.1993 was required to assume charge of the promotional post. The order dated 16.12.1993 as disclosed in paragraph 4 of the counter affidavit contemplated that failure to join the promotional post was on the pain of denial of future promotional benefits for which the petitioner would alone be responsible. Official correspondence records that the petitioner was unwilling to join his promotional post. The petitioner voluntarily declined to join the promotional post on various grounds including domestic problems and health concerns.
Review of pay scales of the employees is undertaken by the department on a regular basis to check discrepancies in grant of pay scales. During one of these exercises of verification of the pay scales of the employees it was found that the petitioner was not entitled to the grant of personal promotional pay scale w.e.f.
04.06.2007 to 02.07.2008. The aforesaid promotional benefits were wrongly released to him. The default was solely on the part of the petitioner since he had voluntarily decided not to join his promotional post. The release of the personal promotional pay scale was illegal and contrary to the financial norms of the Government.
The petitioner was granted an opportunity of post decisional hearing and he availed the same. Petitioner made a representation to the authorities in support of his claim and resisted the recovery of the excess amount paid to him. The representation of the petitioner was duly considered and rejected by a speaking order dated 05.09.2009.
It is well settled that the principles of natural justice are not cast in any strait jacket formula. The requirements of natural justice are adapted to the facts of the case to subserve the ends of justice. In the evolution of the law of natural justice, the Hon'ble Supreme Court has applied the concept of post decisional hearing in appropriate cases. In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others , reported at (2015) 8 SCC 519, the Hon'ble Supreme Court held thus:
"38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straightjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral
hearing but even cross-examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on."
A post decisional hearing subserved the interest of justice in the facts of this case.
In view of the discussion in the preceding paragraphs, it is found that the petitioner was not entitled to the grant of personal promotional pay scale for the relevant period. The petitioner disentitled himself to the aforesaid benefit on account of his own default. The money paid to the petitioner in the head of personal promotional pay scale was illegal and an act of financial impropriety. The financial norms have to be rigidly adhered to. In case, financial norms are made flexible and deviation thereof is condoned, the administration of public finance would founder. The recovery has already been effected from petitioner.
Learned counsel for the petitioner has relied on a judgment rendered by the Hon'ble Supreme Court in the case of State of Punjab and others etc. Vs Rafiq Masih (White Washer) etc. reported at 2015 (4) SCC 334 . The judgment is not applicable to the facts of this case. In the instant case there is admitted default on the part of the petitioner. The admitted default disentitled the petitioner to the excess salary which he had received. Further the excess salary paid has already been recovered. The deviation from financial norms is not in dispute. The petitioner cannot be
granted the benefit of the judgment in the case of State of Punjab and others etc.Vs Rafiq Masih (White Washer) etc. (supra) .
In the light of the facts found and the legal narrative in the preceding paragraphs there is no infirmity in the impugned orders. The impugned orders are upheld as legal and valid.
The writ petition is dismissed.
Order Date :- 10.9.2018 Pravin
2 issues framed by the court
Whether the principles of natural justice preclude the recovery of excess salary paid to an employee who voluntarily declined a promotion.
Whether a post-decisional hearing was required before the department rejected the petitioner's representation against recovery.
Colour shows how this judgement treated each authority
State of Punjab and others etc. Vs Rafiq Masih (White Washer) etc.Distinguished¶15
2015 (4) SCC 334 · Who else cites this
Chunni Lal
State Of U.P.
Another
Ajay Bhanot
As recorded by the court registry
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