Anoop Kumar Upadhyay vs Union Of India & Ors

Dr. Chhabilendra Roul, Member (A)

In the present OA, the Applicant has challenged the order no. 7482-84 dated 10.07.2020, wherein an amount of Rs.9,01,173/- was withheld for want of want of LPC. He has sought relief to quash the said order and the respondents to pay the withheld amount with 18 % interest from the date of his retirement till the date of payment of the amount.

The brief facts of the case is that Shri Anoop Kumar Upadhyay, the present applicant was employed as Junior Engineer (Civil) in CPWD on 13.04.1982 and he superannuated on on 31.5.2020. The respondents‟ department found that the applicant had not passed the paper A of the Departmental Examination. He was issued letter dated 19.09.2018 followed by reminder dated 10.10.2018 direct him to furnish the required information whether he had passed paper A of the departmental examination. The applicant did not furnish the required information. The respondents‟ department revised the pay of the applicant vide office order No. 2071 dated 6.11.2018 and recovery of excess amount paid to the applicant was calculated Rs.09,01,173/-. The applicant was informed about the recovery of the said amount vide letter No.2357 dated 17.12.2018 requesting him to convey the mode of recovery. The present applicant had filed another OA No. 4677/2018 challenging the letter no.DDO/Cash/N.D.O.-3/2018-19/2357 dated 17.12.2018 regarding recovery of an amount of Rs.09,01,173/- for the period from July, 2011 to November, 2018.

During the pending of the present OA, the aforementioned OA No. 4677/2018 was finalized with the following manner:-

“ In the facts and circumstances, the present OA is allowed, and the impugned order is set aside with a direction to the respondents that they shall not make any recovery from the applicant. Pursuant to the impugned order, which is said to have been issued on account of re-fixation of his salary. If any recovery has already been made or some other admissible dues of the applicant have been withheld on account of this recovery, the same shall either be refunded or released to him forthwith, in no case later than a period of six weeks‟ from the date of this order.”

On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

The main ground taken by the applicant, in his OA, reiterated by his counsel during argument, is that the recovery order was against the settled principles of law as it has been established in State of Punjab & another vs.Rafiq Masih (While Washer) Civil Appeal No. 11527 of 2014. Based on the said judgment of the Apex Court, the Ministry of Personnel, Public Grievances and Training & Pensions, Department of

Personnel and Training (DOP&T) vide its memorandum dated 02.03.2016 had issued directions to the department to implement the judgment in the case of Rafiq Masih (supra), the relevant portion of the same reads as under:-

“5. The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries /Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon‟ble Supreme Court in CA No. 11527 of 2014 (arising out of SLP( C) No.11684 of 2012) in State of Punjab and others etc. vs. Rafiqu Mashih (White Washer)”

The Second ground taken by the applicant is that the reason d‟etre for the recovery which was mentioned in the PPO by the Pay and Accounts Office vide his order dated 10.7.2020 for want of LPC is no more valid as the LPC has already been issued to the applicant on 16.7.2020. Hence, there should not be any recovery from the applicant‟s gratuity.

The respondents have stated that the applicant has not come with clean hands in the present OA and they have concealed the facts that the another OA which has already been filed at the time of filing of the present OA. The other OA was still to be adjudicated by the Tribunal.

Secondly, the learned counsel for the respondents has averred that he has concealed the facts from the Tribunal that he had no knowledge that he had not passed the departmental examination and his pay was wrongly fixed, which was corrected vide order dated 6.11.2018. The respondents in their counter reply again quoted the para 10 of judgment of Apex Court in the case of Rafiq Masih (supra), wherein it has been discussed under which circumstances the said recovery could be made. To be very specific para 10 reads as under:-

In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

We have gone through the records of the case thoroughly and heard the arguments carefully. The matter regarding whether Rs.9,01,173/- has to be recovered from the present applicant has already been adjudicated by this Tribunal in OA No. 4677/2018. At the time of filing of that OA, the present applicant was in service and the order of recovery was effected without mentioning the mode of recovery. The applicant was asked to convey his mode of recovery of the amount. Against the said order the OA No. 4677/2018 was filed. In that OA, the issue of recover the judgment in the case of State of Punjab & Others vs. Rafiq Masih (supra) was discussed and in light of the said judgment, the recovery order dated 17.12.2018 was quashed. As the recovery of the same amount has already been quashed and hence there is no cause of action remains in respect of the present OA, the only difference here is that the previous recovery was non-specific regarding the mode of recovery and in the present OA the recovery has been stated to be recovered from the gratuity amount due to the applicant.

Nevertheless, the core issue, regarding whether the amount arrived at by the respondents i.e., Rs.9,01,173/- would be recovered or not, has already been adjudicated. In view of this, there is no need of passing of fresh order regarding the recovery of the said amount.

The respondents are directed to issue a fresh payment order with respect to his gratuity payment amount without effecting any recovery as mentioned above. Because the respondents department have ignored the memorandum dated 2.3.2016 issued by the DOP&T, the applicant is entitled for payment of interest on the payment of amount of gratuity withheld at the time of his retirement. The respondents are directed to pay 8% interest on the withheld amount of the gratuity from the date of his retirement till the amount is paid to the applicant

In view of the above directions, the present Original Application is allowed. There shall be no order as to costs.

All pending MAs are also disposed of accordingly.