Allowed

Head Constable Dale Singh v. UOI & Ors.

Delhi HC8 Mar 2016W.P.(C)/21285/2005

Case brief

AI extract

What is this about?

The High Court of Delhi, relying on Rafiq Masih, quashed an order directing recovery of Rs. 31,015/- erroneously paid to a class III CISF employee. The court held recovery after eight years of mistake was harsh and arbitrary for a class III employee.

What did the court decide?

Order dated 16.4.2005 directing recovery of Rs. 31,015/- is quashed; corrections in pay are maintained prospectively from 16.4.2005; amount recovered before interim order reversed.

Head Constable Dale Singh Vs UOI & Ors. — Pension and Retirement Benefits | Delhi HC (2016)

¶1

$~R-61

¶2

IN THE HIGH COURT OF DELHI AT NEW DELHI

¶3

W.P.(C) 21285/2005

¶4

HEAD CONSTABLE DALEL SINGH ..... Petitioner Through: Mr. O.P. Aggarwal, Advocate with Mr. Deepak Agarwal, Advocate

¶5

versus

¶6

UNION OF INDIA & ORS .....Respondents Through: Dr. Ashwani Bhardwaj, Advocate.

¶7

CORAM: HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MR. JUSTICE SUNIL GAUR

¶8

O R D E R % 09.03.2016

¶9

The present petition has been filed by the petitioner praying inter alia for a writ of certiorari, thereby quashing the order dated 14.1.2005 issued by the Respondents No. 2-5/CISF granting him annual increment on completion of satisfactory service, for one year and enhancing his pay from Rs.3880/- +

¶10

Rs. 75/- (FPA), as was being drawn till 01.1.2004, to Rs. 3,965/- + Rs. 75 (FPA) payable with effect from 01.1.2005/10.1.2005. Further, the petitioner seeks restoration of his salary to Rs.4,135/-, with effect from 01.1.2004, on the ground that same was wrongly brought down to Rs.3,880/- from November 2004.

¶11

W.P.(C) 21285/2005 Page 1 of 6

¶12

The brief facts of the case are that the petitoner had joined as a Constable in CISF in April, 1981 and after completion of training, he was posted as a Constable in June, 1986. W.e.f. 1.1.1986, the petitioner’s pay was fixed in the revised scale at Rs.870/- w.e.f 01.1.1986. In the year 1987, the petitioner was granted leave for 28 days between 09.3.1987 to 05.4.1987. But, he overstayed for 52 days and was awarded punishment of 7 days fine. On 31.10.1988, the petitioner was awarded censure on the ground that he was found sleeping while on duty. It is the respondent’s version that on account of the punishment inflicted on the petitioner, he did not cross the efficiency bar during the year 1988, 1989 and 1990 and was able to clear the efficiency bar only in the year 1991, when he was awarded an annual increment which fact has not been disputed by the petitioner.

¶13

The rub lies in the implementation of the 5^th Pay Commission Recommendations dated 01.1.1996, when the petitoner’s pay was

¶14

erroneously fixed at Rs.3,275/-. As per the respondents, the aforesaid error came to the notice of the department in the year 2004 and steps were taken to rectify the same by issuing an order dated 16.4.2005, directing recovery of the excess amount paid to the petitioner which was to the tune of Rs.31,015/-. Vide order dated dated 16.4.2005, the petitioner and the other

¶15

W.P.(C) 21285/2005 Page 2 of 6

¶16

officers were informed by the respondents that on checking the records, it had transpired that over payments have been made to them that were required to be recovered from their salaries, effective from the year 2005 as per the figures mentioned in the respective columns against their names. The petitioner’s name features at Sr.No.11 of the captioned order and the installment proposed to be recovered from his salary was fixed at Rs.1,945/-

¶17

p.m. 4. Learned counsel for the petitioner submits that the issue with regard to

¶18

the validity of an order of recovery of excess amount paid by an employer to an employee stands settled in the light of a recent decision of the Supreme Court in the case of State of Punjab and Others etc. vs. Rafiq Masih (White Washer) etc. reported as AIR 2015 SC 696 , wherein the Court had the occasion to examine as to whether the order passed by an employer seeking recovery of the monetary benefit wrongly extended to employees can only be interefered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh the equitable balance of the employer’s right to recover, or whether other parameters must be considered before permiting recovery of payments. After examining several decisions on situations where High Courts all over the country had repeteadly set aside

¶19

W.P.(C) 21285/2005 Page 3 of 6

¶20

orders of recovery made on different parameters, the entire issue was crystallized in para 12 of the judgment in the following manner:-

¶21

“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employers, in excess of their entitlement. Be that as it may, based on the decisions hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the empooyers, would be impermissible in law:-

¶22

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

¶23

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even thought he should have rightfully been equired to work against an iniferior post.

¶24

(v) In any other case, where the Court arrives at the conclusions, the recovery if made from the employee, would be iniquitous or harsh or arbitrary to such na extent, as would far oughweigh the equitable balance or the employer’s right to recover.”

¶25

Learned counsel for the petitioner submits that the petitioner’s case

¶26

would squarely fall in the situations envisaged in clause (i) & (iii) above, as the petitioner admittedly belongs to class III service and excess payment had been made to him for a period spreading over eight years before the order of

¶27

W.P.(C) 21285/2005 Page 4 of 6

¶28

recovery came to be issued and that too, for no fault that could be attributable to him.

¶29

We are inclined to agree with the submissions made by learned counsel for the petitioner. Undoubtedly, the error in calculating the benefit payable under the 5^th Pay Commission was made by the respondents, for which the petitioner cannot be blamed in any manner. Payments were made

¶30

to the petitioner in terms of the salary fixed by the respondents effective from 01.1.1996 and the said error came to the respondents’ notice only in the year 2004, i.e. after the passage of almost eight years and the same was sought to be rectified by passing the order dated 16.4.2005. The action of the respondents in ordering recovery of monthly installments from the salary of the petitioner who is a class III employee and that too after eight years, would be grossly unfair to him, apart from being extremely harsh and arbitrary as he could in no way be held responsible for the excess amount paid mistakenly by his employer.

¶31

We are therefore, of the opinion that any correction in the mistake sought to be made by the respondents would have to be prospective, i.e. from the date of issuance of the order dated 16.4.2005, but for the period anterior thereto, the respondents cannot be permitted to effect recovery of the excess

¶32

W.P.(C) 21285/2005 Page 5 of 6

¶33

amount to the tune of Rs.31,015/-, from the salary of the petitioner. Accordingly, the order dated 16.4.2005, issued by the respondents directing recovery of a sum of Rs.31,015/- from the salary of the petitioner on a monthly basis is quashed and set aside. However, corrections made by the respondents in the petitioner’s pay and allowances in terms of the Recommendations of the 5^th Pay Commission are maintained. Any part of the excess amount recovered from the salary of the petitoner prior to passing of the interim order dated 11.11.2005, shall be reversed into his account within a period of eight weeks from today, failing which it shall carry interest @ 8% per annum.

¶34

The petition is disposed of, while leaving the parties to bear their own costs. HIMA KOHLI, J

¶35

SUNIL GAUR, J

¶36

MARCH 09, 2016 ap/mk/rkb

¶37

W.P.(C) 21285/2005 Page 6 of 6

Head Constable Dale Singh v. UOI & Ors.

Case brief

What is this about?

What did the court decide?

Head Constable Dale Singh v. UOI & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Hawkers Suraksha Foundation All India Vs South Delhi Municipal Corporation and Ors.

Yogesh Gupta & Anr. Vs East Delhi Municipal Corporation of Delhi & Ors.

No 962332788 Constable/ Gd Mukesh Kumar Vs Union of India and Ors.

Sukdeb Sahu Vs Union of India & Ors.

Ashok Kumar Vs National Commission for Scheduled Castes & Anr.

Manoj Kumar Sharma Vs North Delhi Municipal Corporation & Ors.

Mohd Yameen Vs South Delhi Municipal Corporation & Ors.

M/S Lovely Enterprises Vs Commissioner of Custom & Ors.

No 962332788 Constable/ Gd Mukesh Kumar Vs Union of India and Ors.

Sukdeb Sahu Vs Union of India & Ors.

Ex.Ct.Anirudha Panda Vs UOI & Ors.

Suman Kumar Vs Union of India & Ors.

Lt. Col S.K. Mishra & Ors. Vs Union of India & Ors.

Suresh Kumar Sonkar Vs Union of India & Anr.