.,-?<-• ^^Jf\^^\ttl^\J^\^^^ < IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARH] WRIT PETmON rSI No. 5^4 /2007 Petitionerfs) - ^. •^'-•[^"il^ S^-c<:)'."^..^te'K" ..^5-^)"..^-' '^^•^•^"^ p^661".,.^ k..-""' \9 Respondentfs) Yersus 1. l. Union of India, through its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. , 2. Director General of Health Services, (Leprosy Division), Nirman Bhawan, New Delhi. /3. Director, Regional Leprosy Training & Research Center, Lalpur, Raipur, District - Raipur [C.G.] Ishwari Masih, S/o Shri K. Masih, Aged about 40 years, Para Medical Worker, Regional Leprosy Training & Researili Institute, Lalpur, Raipur, Distrcit Raipur [C.G.] 2. Sandeep Chatterjee, S/o Shri R. Chatterjee, Aged aboiit 411 years, R/o Near Maratha Boarding, Budhapara, Raipur, District - Raipiii [C.G.] ^.3. The Central Administrative Tribiiniil, Jabalpur [M.P.], A tribunal establislicil under Article 323A of the Constitutii!!! of India & Section 5 of Ihr Administrative TribunalAct, 1985. WUY*^> c^' v Q WRIT PETITION UNDERARTICLE 227 OF THE CQNSTITUTION OF INDIA ^f ^. ^'.^yS&ffiS ffi? ^' .& t^f.^^ L\, 1^ HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench : Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Radhe Shyam Sharma, JJ. Petitioner (s) WRJT PETmONIS)JM0^054 QF 2007 Union of tndia & Others Versus Ishwari Masih & Others Respondent (s) (Writ petition underArticle 227 ofthe Constitution of India) Present:- Ms Fouzia Mirza, Asstt. Solicitor General with Shri Vivek Shrivastava, standing counsel for the Union of India/ petitioners. Shri Amrito Das, Advocate forthe respondents No.1 & 2. ORDER (ORAU (Passed on this 4th day ofjuly, 2011) 1. Heard learned counsel for the parties. 2. By this petition, the Union of India/petitioners seeks to challenge the legality and validity of the order dated 9-4-2007 (Annexure - P/1) passed bythe respondent No.3/Central Administrative Tribunal (for short "the Tribunal") in O.A.No.864/2005 (Ishwari Masih & Another v. Union of India & Others), by which the Tribunal directed that no recovery shall be made of excess amount already received by the respondents No.1 & 2 herein. It was also directed by the Tribunal that if any recovery is being made then the petitioners herein are to refund the recovered amount to the respondents No.1 & 2 within a period ofthree months. 3. Learned counsel appearing for the petittoners submits that the respondents No.1 & 2 preferred an original application being O.A.No.864/2005 against the order dated 14-10-2004 whereby the Departm^nt of Personnel & Tr^iriing had djreGted the petitjoner No.3 td reduce the pay scale of respondents No.1 & 2 and the order dated 8-2-2005, which was issyed in pursuance of order dated 14-10-2004 whereby the henefits given to the respondents ^ ^^^7^^^^^: :"^':l'';ir^'^s^^!^©??'^^^^i;%;^ ^&^^gys^s^.•••s^-:^^: :^ ^,.».u, /:!fm*. ^ s is»^sas 1 \^€/! No.1 & 2 under the Assured Career Progression Scheme was withdrawn and the pay of the respondent No.1 and 2 was reduced. According to the learned counsel for the Union of India the impugned order of the Tribunal is an erroneous order and against the well settled principles of law. Hence, this petition. According to the tearned counsel appearing for the Union of India/ petitioners, the respondents No.1 & 2 are Paramedical Workers carrying the revised pay scale of Rs.3200-85-4900 as per (revised pay) Rules, 1997. Vide OM dated 9-8-1999 the ACP Scheme was introduced on the recommendation of 5 Central Pay Commission on completion of12 & 24 years of service. Accordingly, vide order dated 14-11-2002 pay scales of Paramedical Workers was upgraded to Rs.4000-700-6000 since 1-1-1996. However, on account of some problem in pay fixation, the clarification was sought from Directorate General of Health Services and accordingly by clarification dated 22-10-2003 it was directed to implement the order dated 14/18-11-2002 subject to condition that necessary recovery will be effected in case the said order is amended by the Ministry. Learned counsel further submits that the recovery order has been passed after affording proper opportunity of hearing to the respondents No.1 & 2. Even the respondents No.1 & 2 had knowledge that they had been paid amount, which can be recovered. The other Para Medical Workers have not come up before the Court and have no grievance. Exception in this case would lead to discrimination. Learned counsel placed reliance upon the decision of the Suprfeme Court in Col. B.J. Akkara (Retd.) v. Govemment of India and Others1, Paras Nath Singh v. State of Bihar and Others2 and 1 (2006)11 SCC709 2 (2009) 6 SCC 314 sns''-" ^^^^^^^'^^"''^fS^^^^^^^^^^^SS- "t, v rt 6. 8. Registrar, Cooperative Societies Haryana and Others v. Israil Khan and Others3. The Tribunal after having considered the effect of undertaking given by the respondents No.1 & 2 (applicants therein) came to the conctusion that there was no fault on the part of the applicants in receiving excess payment received on account of erroneous pay fixation done by the petitioners (respondents therein). Accordingly, the Tribunal rightly directed not to recover any amount from the respondents and if recovery has been made, the same may be returned back to the respondents herein. We do not find any illegality or infirmity in the impugned order. The orders dated 14-12-2004 (Annexure - P/6) & 8-2-2005 (Annexure - P/7), which were sought to be quashed, appear to have been passed without examining the well settled principles of law, as laid down by the Supreme Court in a catena of decisions. In Syed Abdul Qadir and others v. State of Bihar and others , having considered all the aspects of the matter and the decisions rendered by the Supreme Court in the past, observed as under: "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 madS by the emptoyer 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 ^ 3 (2010)1 SCC440 4 (2009) 3 SCC 475 ."£^^ "y ff- ,„'? ^T^?^-7^" + f •<; G the employee had knowledge thatthe payment received was in excess of whatwas due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrdng 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 exeess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Unionof India v. M Bhaskar.V. Gangaram v. Director, Col. B.JAkkara (Retd.) v. Govt. of fndia, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. K4anjeet Singh and Bihar SEB v. Bijay Bhadur." 9. In Col. BJ.Akkara (Retd.) (supra), relied on by the petitionere, the proposition of law is the same that in the event the employee had knowledg®that the payment received was in excess ofwhat was due or wrongly paid, or wherethe en-or is detected or corrected within a short time of wrong payment. By giving an undertaking it cannot be held that there was an errpneous fixation of salary. 10. In Paras Nath Singh (supra), also the Cburt has directed to take lenient view, as undertaking does not indicate that therewas fraud or misrepresentation on behatf of the employee. 11. The facts in /srai/ K/ian (supra) are diffeTent and the same are not applicable tp the facts of the preserit case. 12. In the case on hand, it has been found that the payscale was not fixed erroneously and the pay fixation was not done at the instance or on the misrepresentationon the part of the employees. Thus, there is no infirmity orillegality inthe order passed by the Tribunal. 13. For the reasons and analysis mentiohefl hereinabove and apptying the well settled principles of law to tt}6 facts of the present case, the writ petition is liable to be and is hereby dismissed. 14. There shall be no order asto costs. Sd/- Satish KAgnihotri Juc^e Sd/- R.S. Sharma Jud^e ai