Dismissed¶76

Union of India and Anr. v. Randhir Singh Retd. Sse/ Hort.

Delhi HC3 Feb 2025W.P.(C)/1301/2025

Case brief

AI extract

What is this about?

Downward refixation of pay without show cause notice; correction of 11-year-old pay error; recovery of excess payment from employee due to retire within one year; recovery after more than five years; Rafiq Masih para 18 clauses (ii) and (iii); Jagdev Singh undertaking caveat; Thomas Daniel fraud/misstatement caveat; natural justice/civil consequences; Northern Railway pay fixation order 19.01.2018; CAT OA 4691/2018; W.P.(C) 1301/2025; Tribunal judgment affirmed; writ petition dismissed.

What did the court decide?

No relief to the petitioners; the writ petition was dismissed and the Tribunal's judgment (quashing the downward pay refixation and the recovery from the respondent) stands affirmed. ¶76

Union of India and Anr. Vs Randhir Singh Retd. Sse/ Hort. — Delhi HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

No relief to the petitioners; the writ petition was dismissed and the Tribunal's judgment (quashing the downward pay refixation and the recovery from the respondent) stands affirmed.

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Issue for consideration

Whether the pay of the respondent (a government servant) could be downwardly refixed, even by way of correction of a past error, without any notice or show cause notice to him. +2 more

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Court's answer

There can be no downward refixation of pay of a government servant without notice to him, even if it is by way of correction of an error which had occurred in the past.

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Ratio / Principle

Since the petitioner had continued with the error for 11 years, the least expected was a notice to the respondent before the error was corrected and his pay was downwardly refixed.

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Key takeaways

The court finds no cause to interfere with the judgment of the Tribunal in so far as it sets aside the petitioner's decision to refix the respondent's pay.ratio¶46
Recovery from the respondent was impermissible under clause (ii) of para 18 of Rafiq Masih, as he was due to retire within 12 days of the passing of the order of recovery.ratio¶68
The Jagdev Singh caveat to clause (ii) does not apply, since it is nobody's case that the respondent, at the time of the allegedly erroneous fixation, subscribed to any undertaking consenting to recovery or was placed on notice that he would be bound to refund any excess paid.

Detailed headnote1 paragraphs

High Court of Delhi (oral judgment, 03.02.2025, C. Hari Shankar and Ajay Digpaul, JJ.) dismisses the Railways' W.P.(C) 1301/2025 and affirms the CAT judgment dated 11.09.2024 (OA 4691/2018) which had quashed a Northern Railway order dated 19.01.2018 downwardly refixing the pay of a Senior Section Engineer (due to retire 31.01.2018) w.e.f. 27.12.2007 and ordering recovery. Holdings: (i) there can be no downward refixation of a government servant's pay without notice, even to correct a past error; with the error persisting for 11 years, notice was the least expected (principle exposited in Bhagwan Shukla v UOI, (1994) 6 SCC 154, and adopted by this court); (ii) recovery was impermissible under para 18(ii) of State of Punjab v Rafiq Masih, (2015) 4 SCC 334 - the employee was due to retire within 12 days, and the Jagdev Singh ((2016) 14 SCC 267) undertaking-caveat does not apply as no refund undertaking was furnished or notice given; (iii) recovery was additionally barred by para 18(iii), being sought more than 11 years after the excess payment, with no applicable later caveat save the fraud/misstatement/full-knowledge caveat noted in Thomas Daniel v. State of Kerala, AIR 2022 SC 2153. Jagdish Prasad Singh v. State of Bihar, AIR 2024 SC 3950, is cited as reiterating the same line.

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$~65

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 1301/2025 and CM APPLs. 6465-6466/2025

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UNION OF INDIA AND ANR. .....Petitioner Through: Mr. Sushil Kumar Pandey, Sr. Panel Counsel with Mr. Hemant Mishra, Ms. Richa Pandey, Ms. Neha Yadav, Advocates with Mr. Ashish Kumar, Legal Officer

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versus

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RANDHIR SINGH RETD. SSE/ HORT. .....Respondent Through:

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CORAM:

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HON'BLE MR. JUSTICE C. HARI SHANKAR HON'BLE MR. JUSTICE AJAY DIGPAUL

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JUDGMENT (ORAL) % 03.02.2025

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C. HARI SHANKAR, J.

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1. By the following order dated 19 January 2018, issued by the Divisional Personnel Officer, Northern Railway, the pay of the respondent, who was serving as Senior Section Engineer, and was due to retire 12 days thereafter on 31 January 2018 was downwardly refixed with effect from 27 December 2007:

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“Northern Railway

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L.No-726-E/16/1396/P-4 DRM Office Dated: 19.01.18 New Delhi

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ADEN/Hort/NDLS

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Signature Not Verified

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Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 1 of 7

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Sub: - Revised pay flxation of Sh. Randhir Singh S/o Sh. Surta Singh

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SSE/Hort/DKZ retiring on 31.1.18

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Ref: - DFM/NDLSL. No DFM/DII/Pension/MISC dt 17.1.18

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Sh. Randhir Singh S/o Sh. Surta Singh SSE/Hort/DKZ retiring on 31.1.18. His pay was wrongly fixed w.e.f 27.12.07 after making the necessary rectification his pay is being revised in the following manner:

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Grade	From	Pay Earlier Drawn (₹)	Pay now revised (₹)
9300- 34800+4200	01.07.07	14930	14930
9300- 34800+4600	27.12.07.	16690	15780
	01.07.08	17190	16260
	01.07.09	17710	16750
	01.07.10	18250	17260
	01.07.11	18800	17780
	01.07.12	19370	18320
	01.07.13	19960	18870
	01.07.14	20560	19440
	01.07.15	21180	20030
As per 7^th CPC	01.01.16	55200	52000
	01.07.16	56900	53600
	01.07.17	58600	55200

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Please make the necessary recovery under advised to Settlement Section P-13 directly.

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Sd/-

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For. Divl. Personal Officer New Delhi”

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2. It is an acknowledged position that no show cause notice was issued to the respondent prior to the issuance of the aforesaid order.

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3. Aggrieved by the aforesaid order, the moved Central

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Signature Not Verified

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Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 2 of 7

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Administrative Tribunal¹ by way of OA 4691/2018² .

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4. The Tribunal has, by judgment dated 11 September 2024, under challenge herein, allowed the OA and has quashed the decision to refix the respondent’s pay as well as to effect recovery from him.

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5. Aggrieved by the said decision, the Railways have approached this Court by means of the present writ petition.

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6. We have heard Mr. Sushil Kumar Pandey, learned Senior Panel Counsel for the petitioner.

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7. In our view, the judgment of the Tribunal is unexceptionable.

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8. There can be no downward refixation of pay of a government servant without notice to him, even if it is by way of correction of an error which had occurred in the past. This position is no longer res integra . The Supreme Court has, in Bhagwan Shukla v UOI³ , exposited the law thus:

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“3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at ₹ 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to ₹ 181 p.m. from ₹ 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus,

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1 “the Tribunal” hereinafter

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2 Randhir Singh v UOI

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3 (1994) 6 SCC 154

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Signature Not Verified Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 3 of 7

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been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant . The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs 190 to Rs 181 w.e.f. 18-12-1970.”

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(Emphasis supplied)

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9. Moreover, in the present case, the error that was being sought to be corrected was of 11 years’ vintage. If the petitioner had continued with the error for 11 years, the least that was expected was a notice to the respondent before the error was corrected and his pay was downwardly refixed.

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10. We, therefore do not find any cause to interfere with the judgment of the Tribunal in so far as it sets aside the petitioner’s decision to refix the respondent’s pay.

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11. On the aspect of recovery, the case is squarely covered by para 18 of the judgment of the Supreme Court in State of Punjab v Rafiq Masih⁴ , specifically clauses (ii) and (iii) thereof. Para 18 of Rafiq Masih reads:

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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 been made by the employer, in excess

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4 (2015) 4 SCC 334 Signature Not Verified Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 4 of 7

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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:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(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.”

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Thomas Daniel v. State of Kerala⁵ and Jagdish Prasad Singh v. State of Bihar⁶ reiterate Jagdish Singh .

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12. Clause (ii), in para 18 of Rafiq Masih , proscribes recovery from persons who have less than a year left to retire. Admittedly, the petitioner was due to retire within 12 days after the passing of the order of recovery. The only caveat to the applicability of clause (ii) in para 18 of Rafiq Masih is to be found in paras 9 and 11 of High Court of Punjab & Haryana v Jagdev Singh⁷ , which read:

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5 AIR 2022 SC 2153

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6 AIR 2024 SC 3950 7 (2016) 14 SCC 267

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Signature Not Verified

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Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 5 of 7

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“9. The submission of the respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the State. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the respondent was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made.

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*****

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The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”

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13. It is nobody’s case that, at the time when the pay of the respondent was allegedly erroneously fixed, he subscribed to any undertaking consenting to recovery at a later point of time, or was placed on notice that he would be bound to refund any amount which was later found to have been paid in excess.

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14. The recovery from the respondent was, therefore, clearly impermissible in view of clause (ii) in para 18 of Rafiq Masih .

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15. The recovery from the respondent would also be interdicted by clause (iii) in para 18 of Rafiq Masih, which proscribes recovery more than five years after the excess pay was made to the officer. In the present case, recovery was sought to be made more than 11 years after the allegedly excess payment was made.

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Signature Not Verified

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Digitally Signed By:AJITWP(C) 1301/2025 KUMAR Signing Da te:0 6.02.2025 20:47:00

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Page 6 of 7

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16. There is no caveat, in any later decision, to the applicability of clause (iii) in para 18 of Rafiq Masih , except for the general caveat, in Thomas Daniel , that Rafiq Masih would not apply where the officer was guilty of fraud or misstatement in securing higher payment, or accepted higher payment with full knowledge of the fact that he was not entitled to it .

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17. The recovery made from the respondent in the present case was, therefore, rightly quashed by the Tribunal.

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18. We, therefore, find no cause to interfere with the impugned judgment of the Tribunal which, therefore, stands affirmed.

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19. The writ petition stands dismissed in the aforesaid terms.

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C. HARI SHANKAR, J.

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AJAY DIGPAUL, J.

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FEBRUARY 3, 2025 /yg