The High Court of Jammu & Kashmir and Ladakh at Jammu dismissed a writ petition filed by the UT of J&K and other officials challenging the order passed by the Central Administrative Tribunal (CAT), which had restrained them from recovering excess monetary benefits earlier granted to a retired Class-C employee. The Court found the Tribunal’s judgment to be well reasoned and declined to interfere with it.
The Division Bench comprising Chief Justice Tashi Rabstan and Justice M.A. Chowdhary observed that the benefits under the SROs were granted to the applicant-respondent not because of any misrepresentation or fraud played by him but were granted by the writ petitioners on their own. The respondent had retired from service on 30 September 2021 and had been working in the Jal Shakti (PHE) Department. He was earlier granted benefits under SRO 149 of 1973, which had been repealed after December 1982. Later, the department issued show cause notices alleging wrongful benefit and initiated recovery by withholding his pension and gratuity. It further noted that the applicant-respondent cannot be penalized for the fault of the authorities themselves and that recovery from a retired Class-C employee would be harsh and arbitrary.
The petitioners argued that the benefits of higher pay scale were wrongly granted to the applicant-respondent, and once discovered, recovery was rightly initiated. They submitted that the Tribunal failed to appreciate the facts and circumstances of the case in the right perspective and wrongly passed the impugned judgment. They maintained that the applicant had received excess benefits under SROs without entitlement. They contended that SRO 149 of 1973, under which the respondent was granted benefit, was not in force after 1982 and hence he could not have been covered under it.
The key issue in this case was whether recovery of monetary benefits could be made from the respondent after retirement, when such benefits had been granted under SRO 149 of 1973. More specifically, the question was whether such recovery could be allowed when the excess payment was made by the employer without any fault, misrepresentation, or fraud on part of the employee. The petitioners relied upon this SRO to justify the recovery. However, the learned Tribunal relied upon the judgment of the Supreme Court in Thomas Daniel v. State of Kerala, 2022 Live Law (SC) 43, wherein it was held that recovery from the retired employees, where the excess payment had been made for a period in excess of five years before the order of recovery, would be impermissible in law. It was also observed that if the recovery is “more unfair, more wrongful, more improper and more unwarranted” than the employer’s right to recover, it would be iniquitous and arbitrary to effect the recovery. In view of this, the Tribunal held that the recovery from the present respondent, who had retired long ago and had not committed any fraud or misrepresentation, was not justified.
Accordingly, the High Court dismissed the writ petition, upholding the Tribunal’s decision to quash the recovery. It found no illegality or perversity in the impugned order and declined to interfere with it.
Appearances:
Petitioners: Ms. Monika Kohli, Sr. AAG
Respondent: Mr. Ayushman Kotwal, Advocate vice Mr. Joginder Singh Thakur, Advocate
