Uttarakhand Transport Corporation & Others vs Kamlesh Diwedi & Another

Ramesh Ranganathan, CJ

Application to condone the delay of 74 days in preferring the appeal is not opposed and the delay is, therefore, condoned. Delay Condonation Application stands disposed of.

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.2953 of 2017 dated 17.12.2018.

The respondent-writ petitioner had filed Writ Petition (S/S) No.2953 of 2017 seeking a writ of certiorari to quash the order dated 18.07.2017 passed by the Divisional Manager (Operations), Uttarakhand Tansport Corporation, and the consequential order dated 19.07.2017 passed by the Assistant General Manager; a writ of certiorari to quash the proceedings dated 29.07.2017 passed by the Divisional Manager (Operations); and a writ of mandamus directing the respondents-authorities to forthwith return/reimburse the deducted amount of benefits granted under the third Assured Career Progression (for short "ACP") to the petitioner.

Facts, to the limited extent necessary, are that the respondent-writ petitioner was initially working as a Conductor in the appellants-Corporation on 28.11.1981 and he retired from service as a Booking Clerk on 31.07.2017 after rendering 36 years service. The petitioner was earlier extended the benefit of the first and second ACPs and was thereafter, by order dated 09.07.2015, extended the benefit of the third ACP notionally w.e.f. 01.09.2008, and the financial benefit which accrued thereby w.e.f. 01.01.2012. The respondent-writ petitioner was given the benefit of the third ACP pursuant to the recommendation made by the Divisional Level Committee on 09.07.2015.

While matters stood thus, the third respondent issued proceedings dated 05.07.2017 informing the respondent-writ petitioner that grant of the third ACP in his favour was inquired into; and the said benefit was being withdrawn. The respondent-writ petitioner submitted his reply on 12.07.2017 stating that he was to retire on 31.07.2017, and just prior to his retirement the benefit of the third ACP, extended to him earlier, could not be cancelled. The third respondent, however, passed the order dated 18.07.2017 whereby the benefit of the third ACP, extended earlier to the respondent-writ petitioner, was cancelled. The reasons stated therein, for cancellation of the third ACP benefits, is that, after going through the respondent-writ petitioner's service record, it came to light that there were certain adverse entries therein, and the respondent-writ petitioner was therefore disentitled to claim the said benefit. The Assistant General Manager issued order dated 19.07.2017 directing calculation of the excess payment made to the respondent-writ petitioner, for adjustment of the same from the respondent-writ petitioner's retiral benefits, and re-fixation of the respondent-writ petitioner's salary from 01.01.2012 to 01.01.2017. The Divisional Manager, vide order dated 29.07.2017, deducted a sum of Rs.1,24,430/- from the post-retiral dues of the respondent-writ petitioner on account of the benefit of the third ACP extended to him earlier.

It is the respondent-writ petitioner's case that, since he did not conceal any fact about the earlier adverse entries made against him and the said benefit was extended to him voluntarily by the Corporation, it was not open to the Corporation to cancel the benefit extended to him in the year 2015 by way of the impugned order, passed two years thereafter in the year 2017.

In the order under appeal, the learned Single Judge observed that, since the appellants had been granted the benefit of the third ACP, the order dated 18.07.2017, passed without giving the respondent- writ petitioner an effective opportunity, was arbitrary and in violation of principles of natural justice. Relying on the judgment of the Supreme Court, in State of Punjab & others vs. Rafiq Masih & others, (2015) 4 SCC 334, the learned Single Judge held that the respondent-writ petitioner's third ACP, granted voluntarily by the Corporation, could not be cancelled later.

Mr. Ashish Joshi, learned counsel for the appellant-Corporation, would submit that the finding recorded by the learned Single Judge, that no opportunity was afforded to the respondent-writ petitioner before the impugned orders were passed, is in error; the respondent-writ petitioner was put on notice, and was given an opportunity of being heard; the benefit granted to him earlier was by mistake, and in ignorance of the applicable rules; and the Corporation was, therefore, justified in cancelling the benefit of the third ACP extended erroneously to the respondent-writ petitioner earlier.

While fairly stating that the respondent-writ petitioner was given an opportunity of being heard, Mr. Dharmendra Barthwal, learned counsel for the respondent-writ petitioner, would however submit that, since a vested right had accrued in the respondent-writ petitioner's favour on such a benefit being extended to him and as extension of such benefit was not on account of the respondent-writ petitioner having either concealed or misrepresented facts, extension of such benefit could not be withdrawn later, that too more than two years after the said benefit was extended to him. He would rely on the judgment of the Supreme Court, in Rafiq Masih, to contend that, since the orders dated 18.07.2017 and 19.07.2017 were passed less than a fortnight before the respondent-writ petitioner retired from service on 31.07.2017, even if the said amount is held to have been erroneously paid, the same could not have been recovered from his retiral dues.

The extant Rules of the Corporation require an employee to have rendered 26 years of satisfactory service to be eligible for being extended the benefit of the third ACP. While the respondent-writ petitioner had, no doubt, rendered 26 years of service, when he was extended the benefit of the third ACP, it has not been disputed before us by Mr. Dharmendra Barthwal, learned counsel for the respondent-writ petitioner, that there were adverse entries recorded in the respondent-writ petitioner's service record. If that be so, the Corporation cannot be held to have erred in holding that the respondent-writ petitioner's service could not be termed as satisfactory service; and since such a benefit could only have been extended to an employee who has rendered 26 years of satisfactory service, which the respondent-writ petitioner had not, they were entitled to correct the earlier error in extending the benefit of the third ACP to the respondent-writ petitioner.

Since the order, cancelling the benefit of the third ACP, was passed after complying with principle of natural justice, we are satisfied that the Corporation cannot be said to have committed any illegality in cancelling the benefit of the third ACP to the respondent-writ petitioner. Any benefit which has been granted to an employee, to which he is not entitled to in terms of the extant rules/regulations, can always be withdrawn; and no vested right accrues in an employee's favour to claim a benefit which he is not entitled to. The order under appeal, to the extent it held that withdrawal of the benefit of the third ACP is illegal, is set-aside.

The fact, however, remains that the impugned order was passed less than a fortnight before the respondent-writ petitioner retired from service. The learned Single Judge has relied on the judgment of the Supreme Court in Rafiq Masih, wherein it was held that among the situations, in which recoveries by the employer is impermissible, are cases where the recovery is sought to be made from employees belonging to Class III and Class IV service (Group 'C' and Group 'D'); and from retired employees or employees who are due to retire within one year of the order of recovery.

The respondent-writ petitioner, admittedly, was a Booking Clerk, when he retired from service, which is a Group 'C' post. In the present case, the recovery was sought to be effected less than a fortnight before the respondent-writ petitioner retired from service. The learned Single Judge was, in our view, justified in applying the law, declared by the Supreme Court in Rafiq Masih, to the facts of the present case; and in directing the appellants-authorities not to recover the amount, already paid to the petitioner, with respect to the third ACP. The order of the learned Single Judge is modified to the limited extent that, after the orders impugned in the Writ Petition were passed, the respondent-writ petitioner would not be entitled to the benefits of the third ACP.

Mr. Dharmendra Barthwal, learned counsel for the respondent-writ petitioner, would submit that the amount paid to the respondent-writ petitioner earlier, towards the third ACP, was illegally recovered from his retiral benefits. The appellants shall, within four weeks from today, refund the amount recovered from the respondent-writ petitioner towards the third ACP benefits extended and paid to him earlier.

The Special Appeal is, accordingly, disposed of. No costs.