IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 7137 of 2008 (O.A (M) No. 165 of 2000) Reserved on : 22.10.2010. Decided on : 09-12-2010 Shri Tek Chand Vaidya ..…Petitioner. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Onkar Jairath, Advocate, vice Mr. R.L. Kaith, Advocate. For the respondents : Mr. R.K. Bawa Advocate General with Mr. J.K. Verma, Dy. A.G for respondents No. 1 to 3. None for respondent No.4. Justice V.K. Sharma, Judge. The petition has been filed with the following prayers:- “i) To quash and set-aside the impugned orders at Annexures ‘PA’, ‘PB’ and ‘PC’ dated 30.4.1993, 23.8.95 and 17.7.2003 respectively; ii) Respondents be restrained and directed not to realize the amount of Rs. 20,540/- alleged to have been paid in excess to the applicant during the course of his government service from the applicant in any manner whatsoever, including making deduction(s) out of the Dearness Allowance on pension of the applicant or other un- settled dues, if any; iii) To direct the respondents to release the payment against Leave Travel Concession to the applicant and 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 unpaid amount of House Rent Allowance. The applicant had already submitted relevant supporting documents as required by the respondents from time to time.” 2. In the reply filed on behalf of respondents No. 1 to 3, apart from the preliminary submissions, the following averments have been set up vide pars 3 and 6 (a), (e), (f) & (h):- “3. That in reply to this para, it is submitted that in view of the facts and circumstances explained, submissions made and record adduced/annexed vide Annexures R-2/I to R-2/III in paras of the preliminary submissions above, the Annexure PA. PA/T i.e the letter dated April 30, 1993 passing direction for recovery of Rs. 20,540/- plus allowances and Annexure PB i.e the copy of order dated August 23, 1995 conveying a decision of the Government on the OA No. 1152/93 i.e the Representation both are legal and valid for all intents and purposes and they as such need to be upheld as good by this Hon’ble Tribunal in the interest of justice. Annexure PC is the letter dated July 17, 2003 from the Assistant Accounts Officer, office of the Accountant General, Himachal Pradesh, Shimla to the Applicant in reply to his letter dated May 12, 2003. It is submitted that this letter dated July 17, 2003, Annexure PC, also does not ipso facto make the Applicant entitled either for getting the Audit Para dropped, or for its settlement. The contents of the letter dated July 17, 2003, Annexure-PC, are themselves depictive of the fact the Audit Para still stands unsettled as the Applicant has not made good of the recovery of overpayment to the tune of Rs. 20,541/- as asked for vide Annexure PA, PA/T and updated from time to time. From further perusal of some available record, it would be very clear that connivance between the officials of the offices concerned qua above matter of recovery can not be ruled out, and further that recovery pertains to the period from February 1979 to January 1981 and from March 1990 to December 1991 when the Applicant was in service. This 3 record would make it further clear that the process for making recovery from the Applicant was also made when he was posted as Superintendent Grade-IV in the office of the Chief Medical Officer, Kullu. The attested photocopy of the letter dated February 9, 1984 and that of the letter dated July 19, 1993 with its English Translation alongwith attested photo copies of the relevant portions of the Audit para-15 also making a reference of Audit para-4 is collectively placed on record as Annexure R-2/IV to the reply for kind perusal of this Hon’ble Tribunal. As already explained in paras of the preliminary submissions above, most particularly in para-2, it is again submitted that the subject matter under reference stands already adjudicated upon and decided finally by this Hon’ble Tribunal in the Execution Petition No. 8/94 in OA No. 1152/93 on September 21, 1995 after having taken into consideration the decision of the Government dated August 23, 1995 taken in OA No. 1152/93 i.e the Representation of the Applicant. Annexures placed collectively as Annexure R-2/I to the reply above, may very kindly be perused by this Hon’ble Tribunal. Hence, the plea advanced herein that no show cause notice was served for recovery is not at all tenable in the eye of Law and facts on record. It is also not true that decision dated August 23, 1995 was not conveyed to the Applicant. The fact remains that the same has been conveyed on his Home Address and after taking into account this decision, the Hon’ble Tribunal disposed of Execution Petition No. (M) 8/94 on September 21, 1995, which was filed by the Applicant for non-compliance of the order dated December 20, 1993 passed in his earlier OA No. 1152/93. In view of all above, the plea advanced that he knew about the disposal of his Representation i.e the O.A No. 1152/93 only in early May 2000 when he visited the office of the Replying Respondent, is also not sustainable. After disposal of Execution Petition No. (M) 8/94, the matter has attained its finality and since the Applicant has not made good of the recovery of 4 overpayment of Rs. 20,540/- + Allowances the same is due to be recovered from him. It is also submitted that letter dated April 30, 2003 being referred to as pointer, has not been annexed by the Applicant with the present Amended Original Application. However, there is a letter dated July 17, 2003 issued by the Accountant General, Himachal Pradesh which has been annexed with the present amended OA as Annexure PC giving a reference of the letter dated May 12, 2003, the reference of which letter also stands mentioned in the copy of the order dated March 21, 2005 passed by this Hon’ble Tribunal in the earlier OA No. (M) 165/2000 filed in the year 2000. It is submitted that the Replying Respondents have already complied with the directions passed on March 21, 2005 in the earlier O.A No. (M) 165/2000, and they had filed an Affidavit in compliance thereto in the matter. The copy of Affidavit filed is placed on record as Annexure R-2/V to the reply for kind perusal of the Hon’ble Tribunal. 6(a) That in reply to this Sub para, it is submitted that recovery of overpayment pertains to the period when the Applicant was already in Government Service holding responsible posts for dealing all matters including Audit matters. He was in full knowledge of overpayment and recovery whereafter he had filed OA No. (M) 1152/93 before this Hon’ble Tribunal. The matter stands adjudication upon and disposed of finally on September 21, 1995,hence, the relief being sought under para-7 of the amended OA is not at all justified. (e) That in reply to this sub-para, it is submitted that the pay of the applicant was fixed in a wrong manner and not as per Rules. Fixation made, however, was subject to the verification by the Audit Office, which office pointed out recovery for overpayment on account of wrong fixation. The averment of the applicant that he was entitled for two increments on account of his having possessed with higher academic qualification as Graduate, is totally wrong as no 5 such benefit was available under the Rules. Therefore, all such averments do not substantiate the claim of the applicant. The letter dated July 24, 1992, Annexure PG, is a letter giving an opportunity to the applicant before passing directions for recovery as passed vide letter dated April 30, 1993, Annexure PA, PA/T. It is wrong to allege that the applicant was singled out in the mater of pay fixation. Material facts have been suppressed by the applicant and he has also misled this Hon’ble Tribunal by concealing all material facts that the subject matter for which he filed OA No. (M) 165/2000 in the Year 2000 and the present amended OA, has already been adjudicated upon and decided finally by this Hon’ble Tribunal, Annexure R-2/I may kindly be perused by this Hon’ble Tribunal. (f) That in reply to this sub-para, it is submitted that the recovery of overpayment as per Annexure PA, PA/T is based on the Audit Para-4 of the Audit and Inspection Report for the period from February 1979 to January 1981 and Audit Para 15 of the Audit and Inspection Note for the period from March 1990 to December 1991. The above paras cropped up due to wrong fixation of the applicant, which was examined on the basis of entries made in the Service Book of the applicant, by the audit party during the course of the audit. Hence, plea as advanced herein that Service Record of the applicant was not examined by the respondents before issuance of Order at Annexure ‘PA’ is wrong hence not sustainable. It is submitted that entire record i.e the Service Record of the applicant was examined and checked by the audit party qua various fixation and therefore, the further plea of the applicant for showing his pay wrongly and making calculation of the amount of recovery to Rs. 20,540/- plus allowances, is also not sustainable. Hence, it is wrong as alleged that the reply of the Respondents No. 1 to 3 to OA No. (M) 165/2000 was palpably wrong and misleading. To the contrary, the applicant has concealed material facts of his 6 case during the course of the hearing of his case, OA No. 1152/93 and thereafter about the disposal of his case by way of Execution Petition No. (M) 8/94 as per order passed on September 21, 1995. Rest of the contentions as raised herein are in repetition and they all stand replied to in paras of the preliminary submissions and reply on merit above. (h) That in reply to this sub-para, it is submitted that as already explained in paras of the preliminary submissions and reply on merit, the OA No. 1152/93 treated as a representation stood already decided by the Government, and on the basis of the decision of the Government on the Representation, the Execution Petition No. (M) 8/1994 as filed for non-compliance of the order passed on December 20, 1993, had been disposed of finally by this Hon’ble Tribunal. All these material facts have been concealed by the applicant, who was in full knowledge of Audit Paras and Recovery. All reasonable opportunities were given to the applicant before issuance of Annexure PA, PA/T. Hence, recovery of Rs. 20,540/- plus other allowances is liable to be made from the dearness portion of the Pension of the applicant in easy installments. Annexure PB also stood duly served on the applicant at his Home Address. The reference of Government decision on the representation also, however, stands given in reply by the Respondents to the Execution Petition No. (M) 8/94 as per Affidavit filed by them on August 28, 1995, which Execution Petition was finally disposed of by the Hon’ble Tribunal on the basis of such a decision. Hence, plea of the applicant herein that he was not in receipt of Annexure ‘PB’ is vague, absurd and ill- founded. The applicant was in full knowledge of the Audit Paras, recovery and about the disposal of his own cases. He concealed all material facts i.e. also the fact of decision taken by the Government on his OA No. 1152/93 treated to be a Representation. Hence, contentions 7 advanced are not sustainable as also already explained in paras of the preliminary submissions and reply above.” 3. However, no reply has been filed on behalf of respondent No.4. 4. In the rejoinder the petitioner has refuted the stand on behalf of the contesting respondents No. 1 to 3 and reiterated his own case as set up in the petition (Original Application). 5. The learned counsel for the petitioner at the very outset placed reliance upon the law laid down by the Hon’ble Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others, (2009) 3 Supreme Court Cases 475. Paras 57 and 58 of the judgment being relevant are extracted below:- “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam 8 Babu Verma v. Union of India, Union of India v. M Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purtshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur.” 6. This is a case where the employee had the knowledge that the fixation with two increments had been objected to. Equally, at the initial stage itself steps had been taken to recover this objected excess payment. For reasons best known to the department only, the same was not done. In situations where an employee has knowledge of wrong or even objectionable fixation, mere delay in recovery cannot defeat the process. Delay in actual recovery or the factum of post retirement recovery are not defences available to the employee in such circumstances. Annexure PC, sent to the petitioner from the office of Senior Deputy Accountant General (A&E), Himachal Pradesh, dated 17.7.2009 reads as follows:- “I am to refer to your letter dated 12/5/2003 addressed to the Chief Medical Officer, Mandi (H.P.), copy thereof endorsed to this office regarding overpayment of wrong fixation of pay pointed out by an Audit Party of this office during the course of Audit of Accounts of Chief Medical Office, Mandi. In this connection it is submitted that reply to the audit para of over payment of wrong fixation of pay has still not yet been received from the deptt. As and when reply is received from the department and if reply is found satisfactory, this office will consider to drop the para of overpayment of wrong pay fixation. However, at present para is still outstanding in the books of this office.” 7. it will be open to the petitioner to approach respondents No. 1 to 3 on the one hand and respondent No.4 on the other, collectively or individually, by filing representation(s) along with copy of this judgment indicating therein his entitlement for grant of two 9 increments on account of his having possessed with higher academic qualification as graduation, within one month from today and the said respondents shall look into the matter and take appropriate action in accordance with law and justice after giving an opportunity of being heard to the petitioner, if so advised, within next three months, in case the matter has not been otherwise closed or settled. 8. The petition is disposed of in the above terms, so also the pending CMP(s), if any. (Justice Kurian Joseph), Chief Justice (V.K. Sharma) Judge. 9th December, 2010. Lsp*