Mohd. Ahmed vs Union Of India

MA No.060/00717/2018

The present MA has been filed by respondent no.1 for deleting his name from array of parties. Learned counsel for respondent no.1 submitted that no relief has been claimed from respondent no.1 and it is impleaded only as a proforma party, and as such it may be deleted from the array of respondents. The other side has no objection. Therefore, the MA is allowed. The name of respondent no.1 is ordered to be deleted from the array of the respondents.

OA No.060/00304/2018

By means of present Original Application (OA) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is assailing the letter dated 21/23.08.2017 (Annexure A-1) and letter dated 13.11.2017 (Annexure A-2), where the respondents have effected recovery of excess payment, which they have made while granting One Time Bound Promotion (in short OTBP) scheme, to the applicant.

After exchange of pleadings, the case came up for hearing today.

Learned counsel for the applicant submitted that the impugned order is bad in law for two reasons. Firstly, by the impugned order, the respondents are recovering the amount which they have paid way back in the year 1999, after completion of 16 years of service under OTBP scheme, which cannot be done as his case falls in exceptions carved out by the lordship in case of STATE OF PUNJAB VS. RAFIQ MASIH (WHITE WASHER), (2014) 8 SCC 883. Secondly, he submitted that the applicant is Group-C employee, therefore, the recovery cannot be effected from him. He also draws our attention to Para 4 (II) of the written statement filed by respondents no.2 to 5, wherein they have admitted that they are effecting recovery of excess payment, which they have made to the applicant in the year 1999, while granting him benefit under OTBP Scheme.

Considering the pleadings on board and arguments raised by learned counsels for the parties, we are of the view that the impugned orders deserve to be set aside, for the reasons that they cannot effect recovery as per the exceptions carved out by their lordships in para 12 of the decision in case of Rafiq Masih (supra), which reads as under:-

"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 employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(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.

(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.

(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."

Therefore, impugned orders Annexures A-1 and A-2 qua the applicant are set aside. If the respondents have effected any recovery from the applicant pursuant to the impugned orders, then the same be refunded to him.

Accordingly, the OA stands allowed in the above terms.