Ram Dhari vs Chairman-Cum-Managing Director

The applicant was serving the respondent-Delhi Transport Corporation (DTC) under Government of National Capital Territory of Delhi (GNCTD). He had retired on 31.12.2016 on attaining the age of superannuation.

The applicant's salary in November 2016 was worked on the basis of Rs.19,690/- p.m. However, while reviewing the service record to work out retiral dues, at the time of retirement, the pay fixation w.e.f. 01.07.2008 was found to be wrong. With this, the pay fixation was reworked and the salary for December 2016 i.e. at the time of retirement worked out to Rs.18,360/-. With such a reduction, it was calculated that an over-payment of Rs.2,43,339/- has taken place over the period 01.07.2008 to 30.11.2016. Vide orders dated 06.02.2018, this amount was recovered from the payable amount of gratuity and the pension has also been fixed on the basis of last corrected salary being Rs.18,360/- p.m.

The applicant pleads that he has not made any misrepresentation at any point of time and for such reduction, he was not given any show cause notice also. Applicant is aggrieved at this recovery and reduction in salary which also adversely affects his pension. This is ventilated in instant OA. The applicant has sought relief in the form of quashing of this letter dated 06.02.2018 along with restoration of his last salary to Rs.19,690/- p.m. and all consequential benefits in respect of retiral dues as well as pension. No interim relief was sought.

The respondents opposed the OA. It was brought out that the at the time of retirement, when the entire service record was reviewed, the error of pay fixation w.e.f. 01.07.2008 had come to light and was rectified at that stage. This had its cascading effect on the subsequent payments till retirement which also get revised. Since during this time certain over-payments amounting to Rs.2,43,339/-, had taken place, the same was recovered from the due amount of gratuity. Accordingly, the recoveries as well as retiral dues have been correctly worked out and enforced.

The matter has been heard at length. Shri S.N.Sharma, learned counsel represented the applicant and Shri Rajeev Kumar, learned counsel represented the respondents.

The facts of this case are not in doubt. The applicant's salary fixation for the period 01.07.2008 to 01.0-7.2016 was incorrect and this came to light when his service record was reviewed at the time of superannuation.

The applicant had relied upon a judgment by the Hon'ble Apex Court in State of Punjab and others etc. vs. Rafiq Masih (White Washer) and Ors., [(2015) 4 SCC 334], which prohibits recoveries older than five years and recoveries at the time of retirement and especially so from Group 'C' and 'D' employees.

The respondents, however, drew attention to the judgment of Hon'ble Apex Court in the case of High Court of Punjab & Haryana and others v. Jagdev Singh, [(2016) 14 SCC 267], wherein the recoveries were permitted if the employee was under notice and he has given such an undertaking.

The premise behind the judgment by the Hon'ble Apex Court in Rafiq Masih (White Washer) (supra) has been that an employee who had been paid a higher amount over long periods is likely to face lot of financial stress if the same is recovered at a later stage. It was in keeping with this that recoveries were disallowed in certain circumstances.

In the instant case, excess payments have taken place over a period starting from 01.07.2008 till 30.11.2016, and it is for this excess that an amount was worked out as Rs.2,43,339/- which the respondents have recovered from the payable gratuity. This excess payment thus had taken place over a long period of about 8 years and its recovery as lump sum at the time of retirement, from the retiral dues is not in order as the reasoning and decision by Apex Court propounded in Rafiq Masih (White Washer) (supra) is attracted. This recovery is, therefore, quashed.

This amount of Rs. 2,43,339/- shall be refunded to the applicant within eight weeks of receipt of certified copy of this order. There shall not be any interest if refunded within this period, else it will carry interest at GPF rate w.e.f. 01.01.2017 till it is paid.

Another question for decision is as to what will be the basis on which to fix the retiral dues, i.e. pension and gratuity. The service record of an employee is reviewed at the time of retirement to finalise retiral dues and if any inadvertent error has occurred earlier, it gets rectified.

In the instant case, it is admitted that wrong pay fixation was inadvertently granted w.e.f. 01.07.2008. This error came to be detected at the time of applicant's superannuation. The correction for the same is, therefore, in order and is upheld.

Therefore, working out of the retiral dues, i.e. pension, gratuity etc. on the basis of last salary as Rs.18,360/- is taken to be in order and is upheld. The pension and gratuity etc. shall have to be worked out on this basis and all retiral dues released if not released so far.

The OA is disposed of with these directions. There shall be no order as to costs.