WP (C) 1016 of 2010 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C ) No.1016/2010 % Date of Decision: 08.03.2010 Municipal Corporation of Delhi …. Petitioner Through Mr.Sanjeev Sabharwal, Standing Counsel for the petitioner. Versus Hospital Employees Union & Ors. …. Respondents Through Nemo. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * The petitioner, Municipal Corporation of Delhi has challenged the order dated 13th July, 2009 passed in T.A. No.481/2009 titled Hospital Employees Union and others v. Municipal Corporation of Delhi setting aside the recovery order passed against the respondents against excess payment of PCA/HPCA made to them. The respondents had impugned order dated 15th April, 2008 ordering the recovery of Patient Care Allowance (PCA) from the staff of WP (C) 1016 of 2010 Page 2 of 5 Swami Dayanand Hospital made w.e.f 1st April, 2008 on the ground that the PCA was stopped from 1st November, 2007, as on revision the Ministerial Staff was not entitled for the same. The respondents had challenged the order dated 1st April, 2008 seeking stay of recovery and to treat them at par with similarly circumstanced Ministerial Staff working in other hospitals. The petition was contested by the petitioner contending that the respondents were wrongly paid the PCA which had been withdrawn. Revised allowance was paid to the respondents vide office order dated 29th September, 1999 and as per clarification dated 22.2.2000 it was stopped, however, it continued to be paid for seven years and thereafter it was detected. It was contended by them it was rightly withdrawn and the recovery was initiated. It was also asserted by the petition that non refund applied only to salary and not to allowances. The Tribunal after considering the contention has held that the allowance (PCA) was disbursed right from 1999 to 2000 and the error had been detected later on after a gap of 7 years. The Tribunal noticed that since there was no misrepresentation or fraud on the part of the respondents for the excess payment made to them relying on Syed Abdul Qadir and others Vs. State of Bihar and others, (2009) 1 SCC (L&S) 744, it was held that the petitioner shall not be entitled to recover WP (C) 1016 of 2010 Page 3 of 5 the excess amount paid to the respondents by order dated 13th July, 2009 in T.A no.481 of 2009 which is challenged by the petitioner in the present writ petition. The learned counsel for the petitioner has impugned the order contending that since the allowance (PCA) was paid on account of an error, the respondents are liable for repayment of the same and the petitioner is entitled to recover the same. The learned counsel for the petitioner has however, not been able to counter the proposition of law laid down by the Supreme Court in Syed Abdul Qadir (Supra) holding that if the excess amount has been paid to employees not because of any misrepresentation or fraud on the part of the employees, and if they had no knowledge that the amount paid to them was more than what they were entitled too, the employees cannot be held responsible. If the payment was on account of inaction, negligence and carelessness of the Official concerned, it will not be appropriate to recover the same from such employees. The learned counsel for the petitioner has contended that in the case of Syed Abdul Qadir (Supra) majority of beneficiary has either retired or were on the verge of retirement, therefore, the Supreme Court had not directed for recovery of the same. However, in the present case, WP (C) 1016 of 2010 Page 4 of 5 the respondents are not on the verge of retirement or have retired and therefore, the petitioner is entitled to recover the excess amount paid to the respondents. The learned counsel for the petitioner has also relied on the case of Union of India and another Vs. Narendra Singh reported in (2008) 1 SCC (L&S) 547. From perusal of Narendra Singh (Supra), it is apparent that the ratio of the case relied on by the petitioner is distinguishable. The Supreme Court has held that erroneous promotion could be rectified and the plea that erroneous promotion could not be rectified was repelled. The learned counsel for the petitioner has tried to distinguish the case of Syed Abdul Qadir (Supra) on the ground that the employees in that case had either retired or on the verge of retirement, therefore, they were held not liable to pay excess payment made to them on account of carelessness and negligence on the part of the Officials. The plea of the learned counsel for the petitioner is not tenable. What was held by the Supreme Court was that if the employees have not got the excess payment on account of misrepresentation or fraud on their part and they also had no knowledge that the excess amount had been paid to them, it will not be appropriate to direct recovery of the same from such employees. WP (C) 1016 of 2010 Page 5 of 5 There has not been any plea on the part of the petitioner that the audit objection which was raised was brought to the notice of the respondents or they had the knowledge that they are not entitled to PCA. In the circumstances, nothing can be imputed against the respondents. There has not been any misrepresentation, fraud on the part of the respondents. Therefore, the decision of the Tribunal relying on the judgment of the Supreme Court in the case of Syed Abdul Qadir (Supra) cannot be faulted and there is no ground to interfere with the decision of the Tribunal, nor any such illegality or irregularity has been pointed out which shall require interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition in the facts and circumstances is without any merit, and it is, therefore, dismissed. ANIL KUMAR, J. MARCH 08, 2010 MOOL CHAND GARG, J. ‘vk’