Dalip Kumar Vs Govt of NCT of Delhi & Ors. — Delhi HC (2025) — LawSathi Research

Dalip Kumar Vs Govt of NCT of Delhi & Ors. — Delhi HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Recovery of ₹ 2,21,036/- from the petitioner's retiral benefits held illegal; respondents directed to return the amount within six weeks, failing which interest @ 12% p.a. till the date of actual payment; writ petition allowed accordingly.

Issue for consideration

Whether the recovery of ₹ 2,21,036/- effected from the petitioner's retiral benefits was permissible under para 18 of State of Punjab v Rafiq Masih, given that the recovery order was passed on 30 May 2016, one day before the petitioner's retirement on 31 May 2016, although the recovery had become due in 2015 +1 more

Court's answer

The applicability of para 18 of Rafiq Masih does not depend on the date when recovery became due; it depends on the date when recovery is made.

Ratio / Principle

Rafiq Masih absolutely proscribes recoveries from a person retiring within one year of retirement and proscribes recovery from retiral benefits; here the recovery order was passed on 30 May 2016 and the petitioner retired on 31 May 2016.

Key takeaways

The only circumstance in which the rigour of the para 18 dispensation stands relaxed, per Jagdev Singh, is where the employee gave an undertaking to agree to recovery if the fixation were found erroneous; it is nobody's case that the petitioner gave any such undertaking.ratio¶21
The recovery of ₹ 2,21,036/- from the petitioner's retiral benefit was clearly illegal and in the teeth of para 18 of Rafiq Masih.ratio¶22
The impugned order of the Tribunal is modified and the petitioner's OA is allowed to the extent it challenges the recovery of ₹ 2,21,036/- from his retiral benefits.ratio

Detailed headnote1 paragraphs

Recovery from retiral benefits — Para 18, State of Punjab v Rafiq Masih (2015) 4 SCC 334 — Applicability of para 18 depends on the date when recovery is made, not the date when it becomes due — Recovery from an employee retiring within one year of retirement, and recovery from retiral benefits, absolutely proscribed — Sole relaxation where the employee gave an undertaking to agree to recovery if pay fixation found erroneous (High Court of Punjab and Haryana v Jagdev Singh, (2016) 14 SCC 267); no such undertaking given — Recovery of ₹ 2,21,036/- effected by order dated 30 May 2016, one day before retirement on 31 May 2016, held illegal — Tribunal's order modified; OA allowed to the extent challenging the recovery; refund within six weeks, failing which interest @ 12% p.a. till actual payment.

$~91

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 13336/2023 DALIP KUMAR .....Petitioner Through: Mr. Anil Kumar Singal, Adv.

versus

GOVT OF NCT OF DELHI & ORS. .....Respondents Through: Mr. Himanshu Pathak, SPC with Mr. Amit Singh, Adv.

CORAM:

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

JUDGMENT (ORAL) % 03.03.2025

C. HARI SHANKAR, J.

1. The petitioner approached the Central Administrative Tribunal¹ by way of OA 147/2017, challenging an order dated 30 May 2016, whereby the petitioner’s pay was re-fixed with effect from 24 November 1997, as well as the recovery, on that basis, from the retiral benefits of the petitioner, of an amount of ₹ 2,21,036/-.

2. The Tribunal has allowed the OA in part, by quashing and setting aside the order dated 30 May 2016. However, the Tribunal has granted no relief with respect to the recovery of ₹ 2,21,036/- which was effected from the petitioner’s retiral benefits.

3. The petitioner had, before the Tribunal, invoked para 18 of the

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judgment of the Supreme Court in State of Punjab v Rafiq Masih² . Apropos this judgment, the Tribunal holds in para 4.1 thus:

“4.1 On perusal of the record, we find that the applicant has himself admitted that consequent upon imposition of punishment of forfeiture of 2 years’ approved service permanently, his pay was correctly fixed by the respondents. However, he is aggrieved by recovery of Rs.2,21,036/- on account of alleged incorrect refixation of his pay on account of separate punishment of forfeiture of one year approved service temporarily for one year. It is noticed that the applicant has been awarded punishment twice in two different cases. When first punishment was awarded to the applicant, his pay was correctly fixed, as admitted by him. Alleged recovery has been effected on account of the subsequent punishment imposed upon the applicant in a separate disciplinary matter. Hence, the stand of the applicant that reduction in his pay could not have taken place and in terms of the decision of the Hon’ble Supreme Court in Rafiq Masih case (supra) recovery could not have been effected from his retiral benefits after five years, is not correct, as the recovery became due in 2015, vide order dated 10.09.2015 whereas the applicant retired from service on 31.05.2016. Moreover, reduction in his pay has been done only after imposition of second punishment of forfeiture of one year approved service temporarily for a period of one year entailing proportionate reduction in his pay, vide order dated 10.09.2015. His appeal was also rejected vide order dated 11.08.2016 and resultantly amount of Rs.2,21,036/- became due to be recovered from him, which, in our view, has been rightly ordered to be recovered from the pensionary benefits payable to the applicant.”

4. The view adopted by the Tribunal in para 4.1, with respect to the applicability of the judgment in Rafiq Masih is, in our considered opinion, flawed. The applicability of para 18 of Rafiq Masih does not depend on the date when recovery became due. It depends on the date when recovery is made. Not only that, Rafiq Masih absolutely proscribes recoveries from a person who is retiring within one year of his retirement. It also proscribes recovery from retiral benefits of an employee. Admittedly, the order of recovery was passed on 30 May

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2016 and the petitioner retired on 31 May 2016.

5. The only circumstance in which the rigour of this dispensation in para 18 of Rafiq Masih stands relaxed, as per High Court of Punjab and Haryana v Jagdev Singh³ , is where there was an undertaking by the employee concerned to agree to recovery in the event of the fixation having found to be erroneous. It is nobody’s case that the petitioner gave any such undertaking.

6. In that view of the matter, the recovery of the amount of ₹ 2,21,036/- from the petitioner’s retiral benefit was clearly illegal and in the teeth of para 18 of Rafiq Masih.

7. We, therefore, modify the impugned order of the Tribunal and allow the OA of the petitioner to the extent it challenges recovery of ₹ 2,21,036/- effect from his retiral benefits.

8. The said amount shall forthwith be returned to the petitioner by the respondent within a period of six weeks from today. Failure to do so shall entail interest @ 12% p.a. till the date of actual payment.

9. The writ petition stands allowed accordingly.

C. HARI SHANKAR, J.

AJAY DIGPAUL, J.

MARCH 3, 2025/ dsn

Click here to check corrigendum, if any

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