Munna vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

“i To issue order or direction to quash the order dated 18.09.2017 issued by the respondent No.2 through which the recovery of excess paid amount of pension/gratuity has been ordered from the applicant.

ii. To issue any order or direction which this Hon’ble Tribunal may deem fit and proper under the circumstances of the case.

iii. to award the cost of the applicant”.

The brief facts of the case are that the applicant was retired from the post of General Supervisor on 31.07.2012 but the payment of pension/gratuity was ordered to be recovered from the applicant vide order dated 18.09.2017, which is impugned in this OA. As per the direction of the Tribunal, the applicant was promoted and granted a pay scale of Rs. 3050-4590/- and granted notional seniority w.e.f. 16.11.1993 vide order dated 17.01.2002.

Heard Shri K.P Singh, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the pleadings available on record.

Learned counsel for applicant argued that as per settled proposition of law, if there is no fraud or misrepresentation on the part of the applicant, recovery from the pension cannot be made. It is further submitted that as per direction of the Tribunal, the applicant has been given pay scale of Rs. 3050/4590/-. It is further argued that recovery is being made without show cause notice. Hence the recovery from the pension of the applicant is not permissible and applicant is entitled for all retiral dues.

Learned counsel for the respondents argued that due to clerical mistake excess payment has been made to the applicant and after detecting the mistake, respondents have ordered to be recovered from pension/gratuity of the applicant.

I have gone through the rival submissions of the learned counsel for the parties and perused the entire pleadings.

It is worthwhile to mention that it is settled law on the point that firstly no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then also adhering to the Principle of Natural Justice, a show cause notice is a pre-condition for making any such recovery. Respondents have not filed any documents which shows that show cause notice was issued to the applicant before recovery excess-payment. It is really very surprising that as to why without issuance of show cause notice, the recovery in question was made. From perusal of record, it is also evident that there was neither any misrepresentation on the part of the applicant nor mistake can be attributed to him. The mistake, if any, can be said to be that of the department. Therefore, the respondents were not justified to recover any amount from the applicant after retirement.

In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, Hon’ble Supreme Court has been pleased to observe as under:-

”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.

Not only this, the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-

“8. We are of the considered view, after going through the “various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.”

In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon’ble Apex Court has also been pleased to observe that “opportunity of hearing is to be given to the delinquent before passing an order.”

Admittedly, in the instant case, applicant was a Group ‘C’ employee and has not committed any fraud or misrepresentation in getting the excess payment. Now, applicant has retired and after his retirement, recovering the excess amount said to have been made from his pension and gratuity even without issuing a show cause notice to him, is not justifiable As far as reducing the pension of the applicant at the time of retirement is concerned, the same has been done without affording opportunity of hearing to the applicant, which is also not tenable in the eyes of law.

Considering the facts and circumstances of the case and in the light of the observations made by the Hon’ble Apex Court, the present O.A. is allowed. Impugned order dated 18.09.2017 (Annexure A-1) is hereby quashed. Respondents are directed to release the entire pension/gratuity amount to the applicant @ 6% per annum simple interest within a period of 03 months from the date of receipt of a certified copy of this order which include the recovered amount also. If any amount is still to be recovered, same shall not be recovered. As far as reducing the pension of the applicant is concerned, the matter is remitted back to the respondents to refix the salary of the applicant, if any wrong has been done by them in fixing the salary of the applicant, after issuing show cause notice to the applicant and considering the reply given by him. There shall be no order as to costs.