W.P.(C)/13470/2018 of SUKHBIR SINGH Vs NORTH DELHI MUNICIPAL CORPORATION & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 21.12.2018

+W.P.(C.) No. 13470/2018

SUKHBIR SINGH

..... PetitionerThrough:Mr.AnujAggarwalandTenzingThinlay Lepcha, Advs.

versus

NORTH DELHI MUNICIPAL CORPORATION & ANR.

.....Respondents

Through:Ms. Pooja Chandra and Mr. SumeetKaul, Advs. for R-1.

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE A.K.CHAWLA

A.K.CHAWLA, J. (ORAL)

1.By the petition filed under Section 226 of the Constitution of India,the petitioner seeks issuance of writ for setting aside of the order dated13.08.2018 passed on the review application, and the order dated 04.03.2015passed by the Central Administrative Tribunal, Principal Bench, New Delhiin short, 'CAT', whereby, the Original Application No.2914/2013 made bythe petitioner seeking declaration to the effect that the Recruitment Rules forthe post of Medical Record Officer had no statutory force for the purposes of

W.P.(C.) No. 13470/2018

grant of second financial upgradation and, in the alternative, on parity withother employees similarly placed with an interim relief restraining therespondents to effect recovery of the amount already paid w.e.f. 01.03.2003on the re-fixation of his pay scale vide order dated 30.08.2012, weredisposed off.

2.Concisely, the facts relevant for the disposal of petition are that thepetitioner alongwith two others had approached CAT with an application,pertinently and in effect, for the grant of financial upgradation andrestraining the respondents from recovery of the amount already paid w.e.f.01.03.2003 on the re-fixation of his pay scale vide order dated 30.08.2012.OA so made came to be disposed of by CAT with the direction that anyexcess payment made to the said applicants be not recovered keeping it opento the respondents to examine their case for financial upgradation from thedate they acquired the requisite qualifications. Any advertence to the otherissues agitated in the OA but for the recovery made as an excess paymentmade w.e.f. 01.03.2003, is not required inasmuch as the applicants includingthe petitioner, did not press the OA on those counts. OA as such came to bedisposed of on 04.03.2015. As for the case of the petitioner, hesuperannuated on 31.05.2013 and the recovery of the excess payments madeto him came to be effected from him in June, 2013 from his retiral benefits.In the given circumstances, the petitioner made RA no. 3/2018. This RAcame to be dismissed by CAT with the observation that while disposing ofOA, it had applied the ratio of the judgment of the Supreme Court in State ofPunjab & Ors. vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334 in aparticular manner without any specific direction for refund of the money

already recovered. Aggrieved thereof, the petitioner has approached thiscourt by way of the instant writ petition.

3.It is not in dispute that the petitioner, who was Group 'C' employee,was paid salary in excess w.e.f. 01.03.2003 and that came to be recoveredfrom his retiral benefits on his superannuation on 31.05.2013. Question forconsideration before this court is therefore limited to the aspect as towhether any recovery of the excess payments made to him w.e.f. 01.03.2003could be made from him keeping in view the ratio of the judgment of RafiqMasih (supra) or not. In Rafiq Masih (supra), the Supreme Court inter aliasummarized the situations, where the recoveries by the employers, would beimpermissible in law, as follows :

"(i)Recovery from the employees belonging to Class III and Class IVservice (or Group and Group service).

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

(iii)Recovery from the employees, when the excess payment has beenmade for period in excess of five years, before the order of recovery isissued.

(iv)Recovery in cases where an employee has wrongfully beenrequired to discharge duties of higher post, and has been paidaccordingly, even though he should have rightfully been required to workagainst an inferior post.

(v)In any other case, where the court arrives at the conclusion, thatrecovery if made from the employee, would be iniquitous or harsh orarbitrary to such an extent, as would far outweigh the equitable balance ofthe employer's right to recover."

4.Facts and circumstances of the case out rightly attract situation (i), tosay, that the recovery effected from the petitioner was impermissible in law.

When that was so, we do not see any reason as to why CAT should havehesitated to extend relief to the petitioner, which was simply beneficial tothe interest of Group 'C' employee and reject it on technicality. Suffice tosay, review is entertainable, when there is an apparent error of law.

5.In view of the foregoing, we allow the writ petition and direct therespondents to refund the excess payment towards salary made to thepetitioner, which came to be recovered from his retiral benefits in June,2013 within four weeks from today, failing which the amounts so due shallinterest @ 8% p.a. Writ petition stands disposed of accordingly.

A.K.CHAWLA, J.

DECEMBER 21, 2018rc

VIPIN SANGHI, J.