THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 05.07.2012 + W.P.(C) 20526/2005 CENTRAL P. F. COMMISSIONER & ORS ... Petitioners versus A. RAMAN & ORS ... Respondents Advocates who appeared in this case: For the Petitioners : Mr Satpal Singh For the Respondent : Mr S. K. Gupta with Mr S. Shakeel CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE SIDDHARTH MRIDUL JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the order dated 26.05.2005 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in OA 2993/2004. The primary petitioner is the Central Provident Fund Commissioner (Employees Provident Fund Organization).
2. The facts of the case are that the respondents, who are all ex- servicemen, were re-employed by the said petitioner sometime in February, 1991. On or about 17.11.1992, the petitioner fixed the pay of the WP (C) No.20526/2005 Page 1 of 10 respondents in terms of OM No. 2(1) 83/ D/ Civ-I dated 08.02.1983. In the year 2000, the petitioner noticed that it had erroneously fixed the pay of the respondents in terms of the OM of 1983, whereas, in fact, OM No. 3
(i)/85/Esst. (P-II) dated 31.07.1986 was the one which was applicable. It is then that the petitioner realized that it had erroneously fixed the salary of the respondents based on the OM of 1983. On 24.09.2004, the petitioner issued an order for recovery of the excess payment from the respondents. Shortly thereafter the respondents filed the said Original Application 2993/2004 in which the respondents claimed that there was no excess payment made to them and that the OM of 1983 would continue to apply to them.
3. By virtue of the impugned order dated 26.05.2005, the Tribunal rejected the plea of the respondents that the OM of 1983 would be applicable. The Tribunal came to the conclusion that the OM of 1986 was applicable. However, the Tribunal, following the decision of the Supreme Court in the case of Shyam Babu Verma v. Union of India: (1994) 2 SCC 521 directed that the petitioner herein could not recover the excess payments made to the respondents in the intervening period.
4. Being aggrieved by the said decision of the Tribunal to the extent that WP (C) No.20526/2005 Page 2 of 10 the petitioner has been debarred from recovering the excess payments from the respondents, the present writ petition has been filed. The question before us is whether the Tribunal was right in allowing the prayer of the respondents with regard to the non-recovery of the excess payment towards salary/ allowances made to them between 1991 and 2004. The learned counsel for the petitioners drew our attention to paragraph 17 of the impugned judgment, wherein there is a reference to an undertaking given by each of the respondents to the effect that in case of excess payments, they would refund the amounts in lump sum with interest. The certificate/ undertaking that was given by the respondents is of the following nature:-
"OPTION CERTIFICATE I, Ex No. 13908972 rank HAV (HON/NBSUS) name DAVIS N.J. re-employed in the office of the Regional Provident Fund Commissioner, Delhi hereby exercised my option for fixation of pay and allowances from the date of my joining as LDC in this office under the provision of Govt. of India, Ministry of Defence O.M. No. 2(1) 83/D (Civ) I dated 8.2.1983.
In case of any excess of payment I shall refund the amount in lump sum with interest.
This option will stand last and final.
(Signature of the individual)"
An identical undertaking/ certificate was furnished by each of the respondents at the time of their re-employment. According to the learned WP (C) No.20526/2005 Page 3 of 10 counsel for the petitioners, once such an undertaking has been given, the respondents cannot oppose the recovery of the excess payments made to them. We find that a similar plea had been raised before the Tribunal and the Tribunal rejected the plea in the following manner:-
"18. A perusal of this certificate shows that the signatory of the certificate had given his option for fixation of the pay and allowance from the date of joining as LDC in the respondent organization in accordance with O.M dated 8.2.1983 and had undertaken that he would refund in lump sum in case of any excess payment. It is not the case of the respondent organization in accordance with OM dated 8.2.1983 and had undertaken that he would refund in lump sum in case of any excess payment. It is not the case of the respondent that some arithmetical or clerical mistake was committed or rule was wrongly interpreted while fixing the pay of the applicant in terms of the OM dated 8.2.1983. Conversely the argument of the counsel for respondent is that the respondent erroneously fixed the pay of the applicant applying OM dated 8.2.83 and that they pay of the applicant should have actually been fixed in accordance with OM dated 31.7.1986. Assuming that all the applicants had signed the option certificate as reproduced above there is no undertaking of the applicants, that they would refund the excess payment in case it was later found that OM 8.2.1983 did not apply. The error in fixation of the pay of the application has not occurred on account of some wrong application of the instructions contained in OM dated 8.2.1983 but on account of overlooking OM dated 8.2.1983. Therefore, this argument, would not come to the rescue of the respondent. As a result, we of the view that the respondent are not entitled to recover the excess payment of salary and allowances paid by the respondents to the applicants who have since retired on attaining the age of retirement and to the applicants who are in service till the date of revision order was passed which are impugned in the O.A."WP (C) No.20526/2005 Page 4 of 10
We are in agreement with the view adopted by the Tribunal insofar as the undertaking/ certificate is concerned.
5. The learned counsel for the petitioner also referred to the decision of a Division Bench of this Court in the case of Rachpal Singh Gehlot and Others v. Union of India and Others: CWP 6678/2003 decided on 25.08.2005. According to the learned counsel for the petitioner, the Division Bench in that case distinguished the case of Shyam Babu Verma (supra) and confirmed the order of the Tribunal in that case which had directed the recovery of excess payments in easy instalments. The learned counsel for the petitioners sought a similar relief in the present case also.
6. We have also heard the learned counsel for the respondents who placed before us the decision of the Supreme Court in the case of Syed Abdul Qadir v. State of Bihar: SCC 3 (2009) 475, wherein the Supreme Court was, inter alia, concerned with the question of recovery of excess payment of emoluments/ allowances. In this context, the Supreme Court observed as under:-
"27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances WP (C) No.20526/2005 Page 5 of 10 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. 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, 1995 (1) SCT 668; 1995 Supp. (1) SCC 18; Shyam Babu Verma v. Union of India, 1994 (2)SCT 296:  2 SCC 521; Union of India v. M. Bhaskar, 1996 (4) SCT 57:  4 SCC 416; V. Ganga Ram v. Regional Jt. Director, 1997 (3) SCT 72:  6 SCC 139; Col. B.J. Akkara (Retd.) v. Government of India and Ors., (2006) 11 SCC 709; Purshottam Lal Das and Ors. v. State of Bihar, 2006 (4) SCT 537:  11 SCC 492; Punjab National Bank and Ors. v. Manjeet Singh and Anr., 2006 (4) SCT 570:  8 SCC 647 and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr.,  10 SCC 99.
28. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of WP (C) No.20526/2005 Page 6 of 10 wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants- teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made."
From a reading of the above extracted passages from the Supreme Court decision, it is abundantly clear that the courts have granted relief against recovery of excess payment of emoluments/ allowances where the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee. Such relief is also granted where the excess payment was also made by the employer by applying a wrong principle for calculating the pay/ allowances or on the basis of a particular interpretation of a rule/ order which was subsequently found to be erroneous. Insofar as the facts of the present case are concerned, there is no allegation that the excess amount that was paid to the respondents was on account of any misrepresentation or fraud on the part of the respondents. It is clear that the excess payments that were made in the present case were made by the petitioners by wrongly applying the OM of 1983 when, in fact, the OM of 1986 was applicable. WP (C) No.20526/2005 Page 7 of 10 The Tribunal has categorically recorded that the OM of 1986 had superseded all the earlier OMs on the subject matter and, therefore, the OM of 1986 was the one that was applicable and not the OM of 1983. It is, therefore, clear that the excess payment has been occasioned on account of the petitioners applying a superseded OM and by not applying the applicable OM which was of 1986.
7. From the above extracted portion, it is also clear that the relief against recovery is granted by courts not because of any right possessed by the employee but, in equity and in exercise of judicial discretion to relieve the employees from the hardship that would be caused if recovery is ordered. It has also been pointed out by the Supreme Court that 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 recovery of the said amount paid in excess. Thus, it is clear that, on equitable principles, when the conditions stipulated above are satisfied, normally, the relief against recovery is granted by courts. WP (C) No.20526/2005 Page 8 of 10 The courts, of course, do not grant such a relief where employees had the knowledge that the payment received by them was in excess of what was due or that the amounts were wrongly paid to them. The courts also do not exercise the discretion in favour of the employees where the error on the part of the employer is detected or corrected within a short period of time of the excess payment. In the present case, there is nothing to indicate that the respondents had knowledge that the payments that were received by them were in excess of what was due to them. In fact, on the contrary, the respondents in their Original Application had asserted that they ought to be governed by the OM of 1983 and that the OM of 1986 did not apply to them. It is, of course, another matter that the Tribunal, and, in our view, rightly so, came to the conclusion that the OM of 1986 would apply, it having superseded the OM of 1983. It is also clear that the error was not detected within a short period of time of the excess payments. The respondents were employed in 1991 whereas the error was detected by the petitioners in the year 2000 after the same was pointed out in the course of an internal audit. However, it is only in the year 2004 that the petitioners issued orders for recovery of the excess payments. Such a conduct cannot be construed as a WP (C) No.20526/2005 Page 9 of 10 detection of an error or correction of an error within a short time of excess payments having been made.
8. Consequently, in view of the clear pronouncement of the proposition of law by the Supreme Court in the case of Syed Abdul Qadir(supra), the discretion that this Court has in the matter would have to be exercised in favour of the respondents and not against them. As in the case of Syed Abdul Qadir (supra), in the present case also, a majority of the respondents have already retired and only two are serving and they are also on the verge of retirement. We also feel that the discretion ought to be exercised in favour of the respondents and not in favour of the petitioners as that would cause undue hardship to the respondents.
9. In this view of the matter, no interference with the impugned order of the Tribunal is called for. The writ petition is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, J SIDDHARTH MRIDUL, J JULY 05, 2012 SR WP (C) No.20526/2005 Page 10 of 10