delhi high court

Delhi High Court: A petition was filed by the petitioner seeking to set aside the order dated 04-03-2020 and to direct the respondent to pay the complete salary along with the arrears and increments to the petitioner in accordance with the law and to direct the respondent to refund the deducted amount vide the impugned order. Chandra Dhari Singh, J., sets aside the order and audit memo, preventing the recovery of the overpaid amount due to the absence of Vice-Chancellor approval for suspension at the time of issuance. Thus, while the petitioner was not entitled to requested increments, the petition was partly allowed regarding the non-recovery of the overpaid salary.

The petitioner, an Assistant Professor at Bharati College, University of Delhi, faced disciplinary measures, including forced leave, suspension, and eventual compulsory retirement following allegations of sexual harassment. Beginning with leave initiation on 09-03-2018, extended on 02-05-2018, subsequent recommendations by the Governing Body for suspension on 09-06-2018, and later, compulsory retirement upon the Internal Complaint Committee’s report on 20-08-2018, affirmed by the Governing Body on October 6 and 26-10-2018. Despite seeking a no-objection certificate to apply elsewhere, the petitioner received no response. An audit memo on 20-01-2020 revealed an overpayment issue, leading to a directive on 04-03-2020 requiring repayment of Rs. 6,42,131 and subsistence allowance from February 2020. The petitioner contested this directive on 06-05-2020, seeking withdrawal and full salary for February 2020. However, the Acting Principal reiterated the repayment directive on 14-05-2020. On 18-12-2020, the Vice-Chancellor approved the petitioner’s compulsory retirement, based on university ordinances. Consequently, aggrieved by the disciplinary actions and financial directives, the petitioner lodged a petition challenging the decisions.

The issues under consideration was:

i. Whether the order dated 04-03-2020 and the audit memo dated 20-01-2020 suffer from any illegality?

The Court noted that the petitioner was placed on forced leave due to allegations of sexual harassment, and it’s evident that his suspension was only recommended and not sanctioned by the Vice-Chancellor until 18-12-2020, which was after the audit was conducted and the demand for repayment of the overpaid amount was made. Consequently, the Court concluded that the view of any amount overpaid to the petitioner prior to 18-12-2020, cannot be recovered since he was never officially suspended until that date. Regarding the issue of subsistence allowance mentioned in the audit memo, it’s well-established that it pertained to the salary provided to an employee placed under suspension to support themselves. However, as the petitioner’s suspension was only approved on 18-12-2020, any payment of subsistence allowance prior to that date is irrelevant. Hence, issue no. (i) is decided in favor of the petitioner.

ii. Whether the petitioner is entitled to receive full salary and increments?

The Court further noted that the petitioner sought full salary and certain increments. However, the respondent college argued that the petitioner’s increments are non-compounding as per a UGC notification, implying that additional qualifications do not entail additional increments beyond the highest qualification at the time of entry. The petitioner, having both M. Phil and Ph.D. degrees, received increments based on the Ph.D. degree, and further increments for the M. Phil degree are not admissible. Regarding travel allowance (TA), it’s clarified that TA is only applicable if an employee attends the College for at least one day in a calendar month, and the petitioner received double TA until he attended College on 06-02-2018. As per the UGC notification and an Office Memorandum from the Ministry of Finance, TA is not admissible during leave or suspension. The documents provided by the respondent college show that all dues of the petitioner were cleared up to February 2018, when his forced leave began, hence he is not entitled to TA or Dearness Allowance thereafter. Consequently, as all dues were cleared until February 2018, there’s no further adjudication required on this issue. Therefore, issue relating to entitlement of full salary and increments was resolved accordingly.

The Court concluded that the petitioner has contested the recovery of the overpaid amount of Rs. 6,42,131 as well as increments due to him. While the petitioner has not challenged his termination, it’s crucial to highlight the serious nature of the allegations against him. The relationship between students and teachers is revered, and any act of sexual harassment by teachers is a serious offence and an abuse of power. Considering these factors, the Court opined that the respondent college cannot recover the overpaid amount from the petitioner since it was paid prior to the Vice-Chancellor approving his suspension. The suspension was deemed void without such approval, and if granted later, it commences from the date of approval. Subsistence allowance may be granted from the date of suspension approval. Regarding full salary and increments, documents show they were paid up to February 2018, and TA is not applicable during forced leave. Additionally, UGC guidelines prohibit TA for individuals on leave or suspension. While the petitioner was granted mandated increments at joining, he is not entitled to further increments. Therefore, the orders dated 04-03-2020, and the audit memo dated January 20, 2020, are set aside, and the recovery of the overpaid amount is dismissed. However, the petitioner is not entitled to the increments prayed for.

Hence, the petition is partly allowed, preventing the recovery of the overpaid amount due to the absence of Vice-Chancellor approval for suspension at the time of issuing the audit memo and subsequent letter.

[Dr Amit Kumar v. Bharati College, 2024 SCC OnLine Del 1011, decided on 13-02-2024]

Advocates who appeared in this case :

Mr. Vishwendra Verma, Ms. Shivali and Mr. Archit Verma, Advocates for petitioner

Ms. Beenashaw N. Soni, Ms. Mansi Jain and Ms. Ann Joseph, Advocates for respondent

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