Central Administrative Tribunal - Ernakulam
Radhamony P vs The Senior Supdt. Of Post Offices on 9 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 907 of 2010
Thursday, this the 09th day of August, 2012
CORAM:
HON'BLE Mr. JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
Radhamony P, Aged 53 years,
W/o. Gopinathan,
Working as Gramin Dak Sevak Mail Packer,
Kalayapuram P.O., Residing at
Sreebhavan House, Kalayapuram P.O.,
Kottarakkara : 691 560 ... Applicant.
(By Advocate Mr. P.C. Sebastian)
v e r s u s
1. The Senior Supdt. Of Post Offices,
Kollam Division, Kollam : 691 001
2. The Chief Postmaster General,
Kerala Circle, Thiruvananthapuram
3. The Union of India, represented by
Secretary to Government of India,
Ministry of Communications,
Department of Posts, New Delhi. ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
This application having been heard on 02.08.2012, the Tribunal on 09.08.12
delivered the following :
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant is working as GDS Mail Packer, Kalayapuram, Post Office, Kollam Division, since 1991. She is drawing the maximum allowance. On implementing the recommendations of Nataraja Moorthy Committee, the Postmaster, Kottarakkara refixed here TRCA in the scale of Rs. 3635-65- 5585 in September, 2009. Upto the month of June, 2010, she was drawing basic TRCA of Rs. 4220/- in the said scale. In July, 2010, without notice and without hearing her, her TRCA was reduced to Rs. 4020/- and adjusted the excess payment of TRCA from the arrears payable to her on revision of TRCA with effect from 01.01.2006. Aggrieved, the applicant has filed this O.A. for the following reliefs:
(i) To call for the records leading to the issue of Annexure A-4 and quash the same;
(ii)To declare that the applicant is entitled to get her TRCA revised and fixed in the scale of Rs. 3635-65-5585 with effect from 01.01.2006, with all consequential monetary benefits and to direct the respondents to do so and to effect payment of the same to her within a time limit as deemed fit and proper to this Hon'ble Tribunal;
(iii)To direct the respondents to effect payment of the arrears of TRCA due to the applicant consequent on the revision of TRCA with effect from 01.01.2006;
(iv)To grant such other relief we prayed for and which this Hon'ble Tribunal may deem fit, proper and just to be granted in the facts and circumstances of the case;
(v)To award costs in favour of the applicant.
2. The applicant submitted that she was drawing TRCA in the higher scale as applicable to her post ever since she joined the same. The TRCA was revised as 3635-65-5585 with effect from 01.01.2006. She was entitled to get the TRCA in that scale. It has been reduced from Rs. 4220/- to Rs. 4020/- without notice and without hearing her. The arrears of pay accrued to her consequent on revision of TRCA with effect from 01.01.2006 has been appropriated under the guise of overpayment. This is illegal and arbitrary.
3. On the contrary, the respondents submitted that the allowance of a GD Sevak working in a post depends upon the workload of the post which is periodically assessed through statistical reviews. As per the instructions in Annexure R-3, the TRCA of the applicant was to be fixed with reference to the existing work load of 2 hours and 9 minutes. The Postmaster, Kottarakkara, refixed her TRCA in the scale of Rs. 3635-65-5585 under the impression that she was already drawing higher TRCA in the pre-revised slabs when she was actually drawing only lower TRCA. It was just that her higher pay was protected. Actually her allowance should have been fixed in the lower slab based on the workload. Higher TRCA is applicable only to the GDS having workload of more than 3 hours and 45 minutes. Therefore, the TRCA of the applicant was refixed in the lower slab at Rs. 4020/- as per the workload of the post and the amount of arrears due to her from 01.01.2006 onwards was adjusted against overpayment made to her. There has not been any recovery from the pay and allowances of the applicant. If only there was any recovery, the question of giving notice would arise.
4. In the rejoinder statement filed by the applicant, it was stated that the arrears of revision of TRCA due to her has been withheld for adjusting against the said overpayment, which happened not due to any misrepresentation or fault on her part. Therefore, she should at least liable to be exempted from the recovery of overpayment.
5. We have heard Mr. P.C. Sebastian, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel for the respondents and perused the records.
6. The respondents have stated that the revision of TRCA of the applicant as per Annexure R-3 done by the Postmaster, Kottarakkara, was not correct. It was not done on the basis of the work load of the applicant assessed as 2 hours and 9 minutes as on 01.01.2006 but on the basis of higher TRCA which was protected in the pre-revised slabs when actually she was drawing only lower TRCA. This fact is not controverted by the applicant. The respondents have the right to correct any mistake occurred in refixing TRCA in the new scale. The applicant cannot continue to enjoy unintended benefit.
7. But the correction of the mistake was not in accordance with the principles of natural justice. It was done in an arbitrary manner by simply adjusting the overpayment against the arrears of TRC due to her without giving notice and without hearing her. The stand of the respondents that there has not been any recovery from the pay and allowances of the applicant is not correct. Adjustment against any payment due to the applicant is recovery. The recovery of overpayment on account of retrospective reduction of TRCA from the arrears due to the applicant without following due process of law is illegal. In the matter of recovery, the law is well settled in the following judgements of the Hon'ble Supreme Court:
(a) Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18:
"....it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant."
(b) Bihar SEB v. Bijay Bhadur, (2000) 10 SCC 99 :
"We do record our concurrence with the observations of this Court in Sahib Ram case 1 and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time."
(c) Col. B.J. Akkara (Retd.) v. Govt. of India,(2006) 11 SCC 709 :
"27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana , Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director -
( a ) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
( b ) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
(d) Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492 :
" We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity,good conscience and justice."
(e) In State of Bihar v. Pandey Jagdishwar Prasad,(2009) 3 SCC 117, it has been held that recovery of any excess payment after retirement is not permissible.:
"It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee."
8. In the instant case, the excess payment was made by the respondents by applying the wrong principle in calculating the TRCA, which was subsequently found to be erroneous and was adjusted without any notice to the applicant against the arrears due to revision of TRCA payable to her. We are of the view that as per the settled law above, recovery of overpayment from the low paid applicant is illegal as she has not misrepresented nor has she committed any fraud to get higher TRCA. The mistake was committed by the respondents in calculating her TRCA. Accordingly, without interfering with the refixation of the TRCA of the applicant, the O.A. is partly allowed as under.
9. The respondents are directed to refund to the applicant the amount of Rs. 29640/- adjusted from arrears of TRCA payable to her upon revision of TRCA from 01.01.2006 within a period of 2 months from the date of receipt of a copy of this order. No order as to costs.
(Dated, the 09th August, 2012)
K GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.