Recovery of excess payment from an employee must be considered in light of the sustained interpretation adopted by the employer, absence of fraud or misrepresentation, and the applicability of relevant judgments.

ORDER :

(Sameer Jain, J.)

1. The present writ petition has been filed assailing the impugned order dated 29.10.2021, passed by the Central Administrative Tribunal (for short “CAT”) at Jaipur in Original Application No. 291/274/2017, whereby the CAT upheld the order of recovery of excess payment made to the petitioner by the respondent-Department.

2. The issue involved in the present writ petition pertains to recovery of excess payment made to the petitioner. The petitioner, at the relevant time, was working on the post of Director in Survey of India and was granted Non-Functional Upgradation (for short “NFU”) of organized Group ‘A’ services with Grade Pay of Rs. 10,000/-per month with effect from 26.10.2006. The petitioner was also allowed enhanced Transportation Allowance (for short “TA”) of Rs. 7,000/-per month + Dearness Allowance (for short “DA”) and continued to draw the same from 2008 to 31.03.2016. The recovery of this enhanced TA is the bone of contention in the present petition.

3. Learned counsel for the petitioner submits that the petitioner was allowed benefit of enhanced TA by the respondent-Department as per their interpretation of para 3 of the Government of India, Ministry of Finance (Department of Expenditure) OM dated 29.08.2008. It is contended that the decision to restrict the benefit of enhanced TA to only those employees drawing Grade Pay of Rs. 10,000/-on regular basis and not to those employees who had been drawing Grade Pay of Rs. 10,000/-on NFU was only clarified in 2016 and accordingly the petitioner stopped drawing TA at enhanced rate of Rs. 7,000/-+ DA w.e.f. 01.04.2016. Learned counsel for the petitioner has further highlighted that even the Department was unsure about the interpretation and in view of the objections raised by the Principal, Audit Office, by which the ban was imposed over the payment of Rs. 7,000/-+ DA w.e.f. 01.04.2016, the Department had also sought a clarification vide communication dated 21.03.2016. Thereafter, vide letter dated 12.04.2016, it was communicated to the Department that the Department may recover excess TA paid to officers promoted under the scheme of NFU. Consequently, the impugned recovery order(s) dated 20.04.2017, 25.04.2017 and 01.05.2017 were passed by the respondents.

4. Learned counsel for the petitioner contends that the benefit of enhanced TA was extended by the respondents based on their own interpretation of the rules, there was no fraud or misrepresentation on the part of the petitioner, and therefore the recovery could not be initiated, especially considering that the allowance was for a specific purpose of transportation, which the petitioner had already enjoyed. Learned counsel for the petitioner has placed strong reliance on Apex Court judgments of State of Punjab vs. Rafiq Masih (Neutral Citation: 2014/INSC/896) reported in (2015) 4 SCC 334 and Thomas Daniel vs. State of Kerala and Ors. (Neutral Citation: 2022/INSC/498) reported in AIR 2022 SC 2153. Learned counsel for the petitioner further submits that the very same controversy has also been decided by the Telangana High Court in favour of the employee in the case of Union of India vs. T. Sanjeev Kumar (Writ Petition No. 5951 of 2019; decided on 22.03.2019), wherein the recovery was quashed by the Telangana High Court. Learned counsel for the petitioner has further highlighted that no appeal has been filed against the order dated 22.03.2019 in the case of T. Sanjeev Kumar (supra) and Union of India had accepted the decision of Telangana High Court and thereafter had also released the amount withheld by them to the employee therein.

5. Per contra, learned counsels for the respondents submits that there is no dispute about the ineligibility of the petitioner to receive enhanced TA. It is submitted that during the month of February of 2015, a team of Internal Audit Wing visited the Rajasthan Geospatial Data Centre for internal audit and raised audit objection regarding over payment of TA on basis on