IMPORTANT POINT
The main legal point established in the judgment is the applicability of the decision in Rafiq Masih to cases involving recovery of excess payment from employees, emphasizing the hardship faced by pensioner employees in such situations.

JUDGMENT

Rekha Palli, J. (Oral)

1. The present writ petition under Article 226 & 227 of the Constitution of India seeks to assail the order dated 02.12.2022 passed by the learned Central Administrative Tribunal (Tribunal) in O.A. 4677/2018. Vide the impugned order, the learned Tribunal has allowed the Original Application filed by the respondent by quashing the order dated 17.12.2018, whereby a sum of Rs. 9,01,173/- was sought to be recovered from him on account of the purported excess payment made to him during the period between 01.07.2011 to 30.11.2018.

2. The respondent joined the Central Public Works Department (CPWD) as a Junior Engineer on 13.04.1982 and was, on 18.08.2009 promoted as an Assistant Engineer (Civil) on ad hoc basis. In 2010, the respondent appeared in the promotional departmental examination but was unable to clear the same but was still granted an increment w.e.f., 01.07.2011, which learned counsel for the petitioners submits, was payable only to those employees who had cleared the departmental examination. Upon realising this mistake, the petitioners, after verifying the position regarding the respondent having not cleared the departmental exam, proceeded to issue the order dated 17.12.2018, directing recovery of a sum of Rs. 9,01,173/- from the respondent.

3. Being aggrieved, the respondent preferred an O.A. before the learned Tribunal on 18.12.2018 and while the same was pending, he superannuated from service on 31.05.2020. Vide its impugned order, the learned Tribunal has set aside the order dated 17.12.2018 by relying on the decision of the Apex Court in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334. The learned Tribunal also noted that the respondent was not put to any notice before issuing the recovery order.

4. In support of the petition, learned counsel for the petitioners submits that the impugned order is wholly perverse and liable to be set aside as the learned Tribunal has failed to appreciate that the decision in Rafiq Masih (supra) was not applicable to a Group B employee like the respondent who cannot claim that he would suffer grave hardship in case the recovery of excess amount is made from him. Once the respondent does not deny that he had not been able to clear the accounts paper in the departmental exam, which was a pre-condition for grant of increment, it is evident that he was being wrongly paid the amount towards the increment since 01.07.2011, which mistake was realized when his records were examined on account of his impending superannuation. She contends that once the respondent has been made the over payment due to mistake, he is bound to refund the same. In support of her plea, she seeks to place reliance on a decision of the Apex Court in Thomas Daniel vs. State of Kerala, (2022) SCC OnLine SC 536. She, therefore, prays that the impugned order be set aside.

5. On the other hand, learned counsel for the respondent supports the impugned order and submits that the learned Tribunal has rightly relied on the decision in Mohd. Rafiq (supra), which is squarely applicable to the facts of the present case, where recovery is sought to be made when the respondent is already a pensioner. He further submits that this plea that the decision in Mohd. Rafiq (supra), would not be applicable to the respondent as he was a group B employee, was not even raised by the petitioners before the learned Tribunal. He, therefore, prays that the writ petition be dismissed.

6. In order to appreciate the rival submissions of the parties, we may begin by noting the relevant extracts of the impugned order. The same read as under:

"9. I have heard the learned counsel for the parties and also carefully examined the pleadings. The facts of the case are not disputed. Nowhere, has it come on record that before issuing the order of recovery, any notice was issued to the applicant' or he was afforded an opportunity in any other manner.

10. Moreover, it is not disputed that recovery was initiated after a lapse of 8 years