Undertakings to refund excess pay bind employees, permitting recovery even from retired Class-III/IV staff, overriding general Rafiq Masih non-recovery principles where employee on notice.

ORDER

By Dr. Chhabilendra Roul, Member (A)

1.1 Present MA has been filed by the applicants (respondents in the OA No. 261/2016) seeking the following prayer:

“A. Reconsider the final order dated 22.02.2023 qua issue of recovery on the basis of the Undertakings of the Applicants.

B. Reconsider the final order dated 22.02.2023 in OA 261/2016 in furtherance of the order dated 25/09/2024 in W.P (C) 2663/2024.

C. Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”

1.2 The applicant in the MA has approached Hon’ble Delhi High Court by filing W.P (C) No. 17590/2024. The Delhi High Court vide order dated 08.01.2025 has held:

“10. We are of the clear view that the Tribunal could not have refused to pass any order on merits in MA 3792/2024, especially as this Court had directed that the MA be decided on merits.

11. Learned Counsel for the respondents, on being queried by the Court, is agreeable to the matter being remanded to the Tribunal for a decision on merits in MA 3792/2024 filed by the Petitioners.

12. Accordingly, without expressing any further observations on the merits of the matter, or on the legality or otherwise of the recoveries effected from the respondents, and leaving all aspects of the matter open for agitation before the Tribunal by both sides, the impugned order dated 16 October 2024 is quashed and set aside. MA 3792/2024 is remanded for reconsideration to the Tribunal afresh.

13. It is reiterated that the Tribunal would decide the MA on merits.”

1.3 In view of this, the learned counsel for the applicant, in the MA, submits that the matter is required to be decided de novo. It is, in effect, a remand of the case for fresh consideration.

1.4 The learned counsel for applicant in the MA submits that the applicants in OA No. 261/2016, who were the employees of the respondents, were asked to give undertakings to the effect that in case of excess payment on account of refixation of pay they shall refund such amount. She refers to one sample undertaking which is placed at page 26 of the MA, which is reproduced below:

“With reference to DG: AIR, S-II letter No. A- 26022/02/2012S.ll dated 03.10.2012. I hereby exercise option for fixation of my pay from the date of 2nd ACP Le. 06.02.2008 in the revised pay scale of 6th Pay Commission In PB-2, Rs. 9300shall remain drawing pay in my pre-revised scale of 34800/with GP 4200/-Rs, 4000-6000/- upto 05.02.2008.

I also undertake that any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the Government either by adjustment against future payments due to me or otherwise.”

1.5 Similar kind of undertakings from the applicants in the OA are at page 27 to 39 of the MA. She further submits that, at the time of refixation of pay, all employees were required to furnish undertakings. Even if any undertaking in respect of the present applicants is not traceable on record, it is to be presumed that the same was duly furnished by them. She further places reliance on the judgment of the Hon’ble Apex Court in High Court of Punjab and Haryana & Ors. v. Jagdev Singh, Civil Appeal No. 3500 of 2016, wherein the issue relating to the applicability of State of Punjab & Ors. v. Rafiq Masih vis-à-vis cases, where employees had furnished undertakings, was considered. Particularly she refers to paragraph 10 and 11 of the same, which are reproduced below:

“10. In State of Punjab v. Rafiq Masih (White Washer) this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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 du