Service Law:
Refund of pay and allowances – Propriety of – Study leave granted to appellant in terms of Army Instructions 13/78 – Submitted Service Guarantee Certificate whereby, he was liable to serve for nine years from the date of return from study leave – Appellant, on return from study leave, after serving for 6 years and 8 months was permitted to retire prematurely – Pay and allowances paid during study leave were deducted from his post retirement dues on the ground that he committed breach of contract by not serving for nine years – Order of recovery challenged – Armed Forces Tribunal dismissed the case of appellant – On appeal to Supreme Court, appellant took the plea that since he had served for 6 years 8 months, there should have been proportionate deduction; and not making proportionate deduction was discriminatory as in case of another officer proportionate deduction was made – Held: In the facts of the case, proportionate deduction is not permissible – Plea of discrimination also not admissible as it was taken for the first time.
Dismissing the appeal, the Court
HELD : 1. In the facts of the present case, question of proportionate deduction does not arise at all. The employer had paid him salary and allowances even for the period he did not work and was on study leave. This payment was made subject to the condition that after his return the appellant would serve for entire nine years. As he has not served for that period, the employer is entitled to receive back the pay and allowances given during the period of study leave, in terms of the Army Instructions coupled with the Service Guarantee Certificate. Validity of the aforesaid Instruction has not been questioned by the appellant. [Para 9 and 10] [880-E-G]
Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705 : [2003] 3 SCR 691 ; Subir Ghosh v. Indian Iron and Steel Company 1976 SCC OnLine Cal 222 – distinguished.
State of Punjab & Ors. v. Dr. Rajeev Sarwal (1999) 9 SCC 240 – referred to.
2. So far as the plea of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the Tribunal or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the appellant has received under the Right to Information Act, 2005 in respect of another officer. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of the present case. [Para 11] [881-B-D]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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