Recovery / waiver of the wrongful / excess payments made to Government servants: DoPT OM 19.09.2022.
Government of India
Ministry of Personnel, Public
Grievances &Pensions
Department of Personnel &
Training Estt. (Pay-I) Section
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Recovery /
waiver of the wrongful / excess payments made to Government servants.
Department
of Personnel & Training has issued instructions from time to time regarding
recovery of wrongful / excess payments made to Government servants. The essence
of these instructions has been summarized in the following paras for guidance
and better understanding.
I. Supreme
Court Judgments on the matter of recovery of excess payments:
The issue of
recovery of wrongful/excess payments made to Government servants was examined
by the Department of Personnel & Training in consultation with the
Department of Expenditure and the Department of Legal Affairs in the light of
the following judgments of the Hon’ble Supreme Court:
(i)
Chandi
Prasad Uniyal and Ors Vs State Of Uttarakhand And Ors, 2012 AIR
SCW 4742, (2012) 8 SCC 417, decided on 17th August,
2012
(ii)
State of
Punjab & Ors Vs Rafiq Masih (White
Washer) etc in CA No.11527 of 2014 (Arising out of SLP(C) No.11684 of 2012) decided on 18th December, 2014.
II
Procedure to deal with the issue of wrongful/excess
payments:
In view of the
law declared by Courts and reiterated by the Hon’ble Supreme Court in the case
of Chandi Prasad Uniyal and Ors Vs State of Uttarakhand and Ors, 2012 AIR SCW
4742, (2012) 8 SCC 417, the Ministries/Departments were advised to deal with
the issue of wrongful/excess payments as follows:
i.
In all cases where the excess payments on
account of wrong pay fixation, grant of scale without due approvals, promotions
without following the procedure, or in excess of entitlements etc. come to
notice, immediate corrective action must be taken.
ii.
In a case where the authorities decide to
rectify an incorrect order, a showcause notice may be issued to the concerned
employee informing him of the decision to rectify the order which has resulted
in the overpayment, and intention to recover such excess payments. Reasons for
the decision should be clearly conveyed to enable the employee to represent
against the same. Speaking orders may thereafter be passed after consideration
of the representations, if any, made by the employee.
iii.
Whenever any excess payment has been made on
account of fraud, misrepresentation, collusion, favoritism, negligence or,
carelessness, etc., roles of those
responsible for overpayments in such cases, and the employees who benefitted
from such actions should be identified, and
departmental/criminal action should be considered in appropriate
cases.
iv.
Recovery should be made in all cases of
overpayment barring few exceptions of extreme hardships. No waiver of recovery
may be allowed without the approval of Department of Expenditure.
v.
While ordering recovery, all the circumstances
of the case should be taken into account. In appropriate cases, the concerned
employee may be allowed to refund the money in suitable installments with the
approval of Secretary in the Ministry, in consultation with the Financial
Adviser (FA).
vi.
Wherever the relevant rules provide for payment
of interest on amounts retained by the employee beyond the stipulated period
etc. as in the case of Travelling Allowance (TA), interest would continue to be
recovered from the employee as heretofore.
[Para 3 of DoPT’s OM No 18/26/2011-Estt (Pay-I) dated 06.02.2014]
III
Situations wherein recoveries of wrongful/excess
payments by the employers would be impermissible in law
Para II(iv) of
the above instructions provides inter-alia
that recovery should be made in all cases of overpayment barring few exceptions
of extreme hardships. The issue was
considered by the Hon’ble Supreme Court in the case of State of
Punjab & Ors Vs Rafiq Masih (White Washer) etc. in CA No.11527 of 2014 {arising
out of SLP(C) No.11684 of 2012}.
In this case, the Hon’ble Supreme Court observed that it
is not possible to postulate all situations of hardship which would govern
employees on the issue of recovery, where payments have mistakenly been made by
the employer, in excess of their entitlement. The Hon’ble Supreme Court
summarized the following few situations, wherein recoveries by the employers 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 due to retire within one year, of the order of recovery.
(iii) Recovery
from employees, when the excess payment has been made for a period in excess of
five years, before the order of recovery is issued.
(iv) Recovery
in cases where an employee has wrongfully been required to discharge duties of
a higher post, and has been paid accordingly, even though he should have
rightfully been required to work against an inferior post.
(v) In
any other case, where the Court arrives at the conclusion, that recovery if
made from the employee, would be iniquitous or harsh or arbitrary to such an
extent, as would far outweigh the equitable balance of the employer’s right to
recover.
IV Procedure to
deal with
wrongful/excess payments by the
Administrative
Ministry/ Departments
Ministries /
Departments may deal with the issue of wrongful / excess payments made to
Government servants accordingly. Wherever waiver of recovery in the
abovementioned situations is considered, administrative Ministries/ Departments
may process the same with the express approval of Department of Expenditure in
terms of DoPT’s OM No.18/26/2011-Estt (Pay-I) dated 6th February, 2014.
[DoPT’s OM No. 18/03/2015-Estt (Pay-I) dated 02.03.2016]
Note : List of the
OMs mentioned in this document is annexed. In case any reference to the
relevant OM is required, the same may be accessed from the Archive Section of
Department of Personnel and Training’s website.
ANNEXURE
List
of OMs mentioned in this Document
1. DoPT’s OM No 18/26/2011-Estt (Pay-I) dated 06.02.2014
2. DoPT’s OM No. 18/03/2015-Estt (Pay-I) dated 02.03.2016
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