Judgment:
Rajiv Sharma, J.
1. The petitioner-Association is aggrieved by the judgment of learned Central Administrative Tribunal, rendered in OA No. 896-HP-99, dated 11.5.2001. Shorn all of the unnecessary details, the relevant facts, necessary for adjudication are that the Members of the Petitioner-Association have been granted pay scale of Rs. 2750-70-3800-75-4400 alongwith two advance increments. The pay scales of the members of the Petitioner-Union were further revised w.e.f. 10.10.1997 vide letter dated 3.7.1998. The respondent/Union of India had issued two communications dated 13.8.1999 and 10.6.1939 (Annexures-P3 and P4) purportedly clarifying the grant of revised pay scales and seeking to recover excess payments.
2. The members of the Petitioner-Union aggrieved by the issuance of these communications seeking to recover alleged excess payments made to the members of the petitioner-Union on purported clarification regarding the date from which the increments are to be paid, approached the learned Central Administrative Tribunal by way of Original Application bearing No. OA No. 896-HP-99, which was dismissed on 11.5.2001.
3. The learned Counsel appearing on behalf of the petitioner-Union has restricted his challenge only to the recovery. Mr. R.K. Bawa, has strongly contended that once the payment has been made to the members of the petitioner-Union, the respondents are estopped from recovering the same, more especially when there was no misrepresentation by them or any act including the respondents to pay the amount from a particular date. Learned Counsel appearing on behalf of the respondents has submitted that the judgment of the Central Administrative Tribunal is in accordance with law and does not call for any interference. The Department is entitled to effect recoveries of the excess amount paid to the members of the petitioner-Union. This Court while issuing notice to the respondents on 22.8.2002 has granted ad-interim relief against recovery.
4. We have considered the rival contentions raised by both the parties and are of the considered opinion that taking into consideration the fact that the members of the petitioner-Union had been granted the pay scale of Rs. 2750-4400 with two advance increments by the department and these have been paid without any misrepresentation or concealment of facts by the petitioners, the excess amount cannot be permitted to be recovered. The amount involved is meagre being Rs. 6,000 to Rs. 11,000 in each individual case. The members of the petitioner-Union belong to lower strata of the society and the recovery of the amount will be harsh and inequitable at this stage. The learned Tribunal was not right in coming to the conclusion that the recoveries should be effected from the salaries of the members of the petitioner-Union on instalments on the basis of undertaking furnished by the members of the Petitioner-Union. The members of the Petitioner-Union belong to lowest rung of the hierarchy of employees and were not aware of the implications of the undertaking furnished at the stage of the release of pay scale. They did not have the same bargaining power vis-a-vis the Central Government. The undertaking furnished by the members of the Petitioner-Union cannot bind them, more particularly when at the time of release of two increments; they have neither misrepresented nor concealed any facts from the Central Government. Salary is a property within the meaning of Article 300-A of the Constitution of India. The fixation was done by the respondents on their own without any overt act on the part of the petitioner. The purported undertaking cannot be a shield for the mistakes of the respondents. In any event, we feel that considering the quantum of the amount being meagre it would be inequitable and harsh to allow recovery.
5. The Hon'ble Superme Court in Shyam Babu Verma and Ors. v. Union of India and Ors. : (1994)ILLJ815SC , has held that where higher pay scales have been erroneously allowed, for no fault on the part of the employees, the recovery cannot be effected. Their Lordships have held:
11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
6. Similarly, in State of Karnataka and Anr. v Mangalore University Non-teaching Employees' Association and Ors. : (2002)IILLJ820SC , has held that while adjudicating the recovery of excess payment of allowance their Lordships of the Supreme Court held that Article 14 of the Constitution of India, would not be attracted in all cases of recovery. However, while disposing of the writ petition, their Lordships were pleased to stay the recovery of the amounts. Relevant portion of the judgment is extracted hereinbelow:
12. Though the above discussion merits the dismissal of the writ petitions and the denial of relief to the respondents, we are of the view that on the special facts of this case, the employees of the University have to be protected against the move to recover the excess payments up to 31-3-1997. When the employees concerned drew the allowances on the basis of financial sanction accorded by the competent authority i.e. the Government and they incurred additional expenditure towards house rent, the employees should not be penalized for no fault of theirs....
7. The proposition of law laid down by their Lordships cannot be disputed.
8. We, therefore, partly allow the writ petition and quash and set aside the judgment of the learned Central Administrative Tribunal to the extent whereby the recovery of the amount paid to the members of the petitioner-Union has been directed to be effected by way of instalments from the members of the Petitioner-Union. The respondents are restrained from effecting the recovery of the excess amount paid to them from the members of the Petitioner-Union and if the same has been effected, in that eventuality, the same is to be refunded to the members of the petitioner-Union within a period of three months from today.
9. No other point was urged except the recovery.
10. There shall be no order as to costs. We make it clear that this petition has been disposed of on its own peculiar facts and shall not be a precedent in other cases.