Heard Sri Sanjieva Shankhdhar, learned counsel for the petitioner and Sri Devrishi Kumar, learned counsel for the opposite parties.
By means of this writ petition, the petitioner has assailed the orders dated 01.09.2016 and 23.01.2020, passed by the Controller General of Defence Accounts, Delhi Cantt. (opposite party No.2) and Office Order No.62 dated 12.02.2021, passed by the Principal Controller of Defence Accounts (Central Command), Lucknow (opposite party No.3), whereby the wrongful fixation of pay and recovery has been initiated against the petitioner issuing the recovery memo dated 02.06.2021 for making recovery of excessive amount being paid to the petitioner. The recovery memo/ order dated 02.06.2021 has been annexed as Annexure No.4 to the writ petition.
At the very outset, Sri Shankhdhar, learned counsel for the petitioner has drawn attention of this Court towards Annexure No.9 of the writ petition, which is the judgment being passed by the Hon'ble Supreme Court reported in (2015) 3 SCC 653; Union of India and another vs. T.V.L.N. Mallikarjuna Rao and other connected matters, whereby the issue relating to the cadre of the petitioner has been decided. However, Sri Shankhdhar has submitted that the case of the present petitioner is distinguishable on fact and law both, therefore, the present petitioner may not be subjected to any punishment on the basis of fact that the issue in question has already been decided by the Hon'ble Apex Court in T.V.L.N. Mallikarjuna Rao (supra).
On being confronted to Sri Shankhdhar that in the wake of the fact that identical issue, if any, has been decided by the Hon'ble Apex Court then why the issue in hand should be adjudicated by this Court under Article 226 of the Constitution of India, Sri Shankhdhar has submitted that the petitioner may approach the Hon'ble Supreme Court puttingforth his grievance distinguishing the merit of the case on fact and law both.
The aforesaid submission of Sri Shankhdhar appears to be appropriate inasmuch as the issue in question may not be adjudicated when the similar issue, if any, has been adjudicated by the Hon'ble Apex Court in re: T.V.L.N. Mallikarjuna Rao (supra).
Thereafter, Sri Shankhdhar has drawn attention of this Court towards Annexure No.12 of the writ petition, which is the judgment of Hon'ble Apex Court in re: State of Punjab and others vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334, referring para-18 thereof by submitting that the case of the present petitioner is covered from the ratio of the case of Rafiq Masih (supra) inasmuch as the recovery order dated 02.06.2021 (Annexure No.4) has been issued on the pretext that the petitioner has been paid an excess amount to his entitlement. Sri Shankhdhar has submitted that the present petitioner being a Class-III employee working on the post of Data Entry Operator and for getting the benefit which was paid to him, the petitioner has not misrepresented to the department and the excess amount was paid to the petitioner by the department itself. Therefore, such recovery would be in violation of the direction and ratio being issued by the Hon'ble Apex Court in Rafiq Masih (supra) vide para-18 thereof. For convenience, para-18 of the aforesaid judgment of Rafiq Masih is being quoted here-in-below:-
"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Sri Devrishi Kumar, learned counsel for the opposite parties has submitted that for redressal of his grievance, the petitioner may very well approach the Central Administrative Tribunal (in short C.A.T.) inasmuch as in view of the law laid down by the Hon'ble Apex Court in re: L. Chandra Kumar vs. Union of India and others reported in AIR 1997 SC 1125, the statutory remedy available before the C.A.T. may not be circumvent.
On being confronted on the point that the issue in question has been decided by the Hon'ble Apex Court in the case of Data Entry Operators, however, the present petitioner was not party before the Hon'ble Apex Court, as to why the petitioner should be relegated to the C.A.T., Sri Devrishi Kumar has submitted that in that circumstances the petitioner may take appropriate legal recourse but the writ petition under Article 226 of the Constitution of India may not be maintainable.
On being further confronted on the point as to why the amount which had allegedly been paid excess to the petitioner than his entitlement is being recovered in derogation and contravention of the ratio being laid down by the Hon'ble Apex Court vide para-18 of Rafiq Masih (supra) which squarely covers the grievance of the petitioner, he has fairly submitted that prima-facie the grievance of the petitioner regarding recovery is covered by the ratio of the judgment in re: Rafiq Masih (supra).
Be that as it may, when more or less the identical issue has been decided/ adjudicated by the Hon'ble Apex Court in re: T.V.L.N. Mallikarjuna Rao (supra), I do not find any good ground to entertain this writ petition before this Court under Article 226 of the Constitution of India or to relegate to the C.A.T. inasmuch as the petitioner may very well approach the Hon'ble Apex Court for redressal of his grievance. So far as the order of the impugned recovery is concerned, I am also of the considered opinion that on the basis of material available on record and the arguments advanced by the learned counsel for the petitioner, no recovery should be made from the petitioner in view of the ratio laid down by the Hon'ble Apex Court in re: Rafiq Masih (supra).
I am cautious of the fact that I am not entertaining this writ petition under Article 226 of the Constitution of India, therefore, no interim order can be passed. But at the same time so as to balance the equity I legitimately expect from the opposite parties not to execute the impugned recovery order dated 02.06.2021 (Annexure No.4) till the petitioner approaches the appropriate forum/ court of law as said above, for that, the timeline is fixed for three weeks. If the petitioner does not approach the appropriate court of law, as stated above, within the aforesaid period of time, the opposite parties shall be at liberty to proceed strictly in accordance with law.
In view of the aforesaid observations and directions, the instant writ petition is disposed of finally.
Order Date :- 27.7.2021 Suresh/ [Rajesh Singh Chauhan,J.]