Ali T vs The Principal Jnv Minicoy Island ... on 24 October, 2019

[Cites 5, Cited by 0]

Central Administrative Tribunal - Ernakulam

Ali T vs The Principal Jnv Minicoy Island ... on 24 October, 2019

                                     1

                 CENTRAL ADMINISTRATIVE TRIBUNAL
                       ERNAKULAM BENCH

           ORIGINAL APPLICATION NO. 180/00772/2018
           ORIGINAL APPLICATION NO. 180/00774/2018
           ORIGINAL APPLICATION NO. 180/00778/2018
           ORIGINAL APPLICATION NO. 180/00953/2018

                 Thuraday, this the 24th day of October, 2019

CORAM

Hon'ble Mr. E.K.Bharat Bhushan, Administrative Member

1.   ORIGINAL APPLICATION NO. 180/00772/2018 -

1.   Ali T., Lab Attendant, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Thuddiyagothi House, Funhilol Village,
     Minicoy Island, Lakshadweep - 682 559.

2.   Amina D, Chowkidar cum Sweeper,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Dandahilugothi House, Palesseri Village,
     Minicoy Island, Lakshadweep - 682 559.

3.   Ammenulla A.K., Mess Helper, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Alimakudi, Kadamath Island, Lakshadweep - 682 552.

4.   Hussain K.M., Chowkidar, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Korimauge, Kendiparty Village,
     Minicoy Island, Lakshadweep - 682 559.             ... Applicants

(By Advocate -     Mr. Vishnu S.Chempazhanthiyil)

                                     Versus

1.   The Principal, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559.

2.   The Deputy Commissioner,
     Navodaya Vidyalaya Samiti (Hyderabad Region),
     Department of School Educational & Literacy,
     Government of India, 1-1-10/3, Sardar Patel Road,
     Secunderabad - 500 003.

3.   The Commissioner, Navodaya Vidyalaya Samiti,
     Department of School Education & Literacy,
     Government of India, B15, Institutional Area,
                                    2

     Sector 62, Noida, Budh Nagar, Uttar Pradesh - 201 309.


4.   Union of India, represented by the Secretary,
     Ministry of Human Resource & Development,
     Shastri Bhawan, New Delhi - 110 001.             .....   Respondents

(By Advocates-   Mr. Millu Dandapani for Respondents-1 to 3 and
                 Mr. Mini R. Menon, ACGSC for respondent-4)

2.   ORIGINAL APPLICATION NO. 180/00774/2018 -

1.   Nazeer Manikfan, Lower Division Clerk,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Kanakufulege, Rammedu Village,
     Minicoy Island, Lakshadweep - 682 559.

2.   Hassan H.A., Driver,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Hafaam H.No.42/1,
     Kendiparty Village, Minicoy Island,
     Lakshadweep - 682 559.

3.   Kadeeja D.F., Lower Division Clerk,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Donfandhathage, Funhilol Village,
     Minicoy Island, Lakshadweep - 682 559.

4.   Subaidabi A.K., Upper Division Clerk,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Alikkakada House,
     Kalpeni Island, Lakshadweep - 682 559.

5.   Mohammed Shafi N.P., Electrician-Cum-Plumber,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Neelathupura House,
     Androth Island, Lakshdweep-682 551.

6.   Manojkumar B., Cook, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Madakalathil House, Thripperumthura P.O.,
     Chennithala, Mavelikara - 690 105.

7.   Savita T.G., Staff Nurse, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559,
     Residing at Marukeri [Kali Mane] P.O.,
     Taluk Bhatkal, Uttara Kannada District,
                                    3

     Karnataka - 581 320.                            ...           Applicants

(By Advocate -   Mr. Vishnu S. Chempazhanthiyil)

                                   Versus

1.   The Principal,
     Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559.

2.   The Deputy Commissioner,
     Navodaya Vidyalaya Samiti (Hyderabad Region),
     Department of School Educational & Literacy,
     Government of India, 1-1-10/3, Sardar Patel Road,
     Secunderabad - 500 003.

3.   The Commissioner, Navodaya Vidyalaya Samiti,
     Department of School Education & Literacy,
     Government of India, B15, Institutional Area,
     Sector 62, Noida, Budh Nagar, Uttar Pradesh - 201 309.

4.   Union of India, represented by the Secretary,
     Ministry of Human Resource & Development,
     Shastri Bhawan, New Delhi - 110 001.                .....   Respondents

(By Advocates - Mr. Millu Dandapani for Respondents-1 to 3 and
                Mr. Anil Ravi, ACGSC for respondent-4)

3.   ORIGINAL APPLICATION NO. 180/00778/2018 -

1.   Binoy Jose, Librarian, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Vakathanathu House, Kozha P.O., Kottayam- 686 633.

2.   Asha T.P., TGT Science, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Lekshami Vilasam, Chrupaloor,
     Kulasekharam, Kanyakumari - 629 121.

3.   Jenson George, TGT English, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Chakkala Vilayil, Kovoor,
     Arinalloor P.O., Kollam - 690 538.

4.   Gireesan K.C., TGT Mathematics, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at 'Nikunjam', Chalakkara, P.O., Naluthara, Mahe - 673 310.

5.   Suresh T.C.M., TGT Social Science, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Cheriya Muliyeri House, Pathiyarakkara P.O., Vatakara,
     Kozhikode - 673 105.
                                    4


6.   Sankaran K., PGT History, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep - 682 559,
     Residing at Kolothodi House, Mulliakurssi,
     Pattikkad P.O., Malappuram - 679 325.             ... Applicants

(By Advocate -   Mr. Vishnu S. Chempazhanthiyil)

                                   Versus

1.   The Principal, Jawahar Navodaya Vidyalaya,
     Minicoy Island, Lakshadweep-682 559.

2.   The Deputy Commissioner,
     Navodaya Vidyalaya Samiti (Hyderabad Region),
     Department of School Educational & Literacy,
     Government of India, 1-1-10/3, Sardar Patel Road,
     Secunderabad - 500 003.

3.   The Commissioner, Navodaya Vidyalaya Samiti,
     Department of School Education & Literacy,
     Government of India, B15, Institutional Area,
     Sector 62, Noida, Budh Nagar, Uttar Pradesh - 201 309.

4.   Union of India, represented by the Secretary,
     Ministry of Human Resource & Development,
     Shastri Bhawan, New Delhi - 110 001.                .....   Respondents

(By Advocates - Mr. Millu Dandapani for Respondents-1 to 3 and
                Mr. Anil Ravi, ACGSC for respondent-4)

4.   ORIGINAL APPLICATION NO. 180/00953/2018 -

1.   N.Vasudevan, Office Superintendent,
     Jawahar Navodya Vidyalaya, Vadavathoor P.O., Kottayam-686 010,
     Residing at Jawahar Navodaya Vidyalaya Quarters,
     Vadavathoor P.O., Kottayam - 686 010.

2.   Jiji G., PGT [Hindi], Jawahar Navodya Vidyalaya,
     Vadavathoor P.O., Kottayam-686 010,
     Residing at Jawahar Navodaya Vidyalaya Quarters,
     Vadavathoor P.O., Kottayam - 686 010.

3.   Lijikutty Lawrence, Staff Nurse, Jawahar Navodya Vidyalaya,
     Vadavathoor P.O., Kottayam-686 010,
     Residing at Jawahar Navodaya Vidyalaya Quarters,
     Vadavathoor P.O., Kottayam - 686 010.              ...    Applicants

(By Advocate -   Mr. Vishnu S.Chempazhanthiyil)
                                       5

                                     Versus

1.    The Principal, Jawahar Navodaya Vidyalaya,
      Minicoy Island, Lakshadweep-682 559.

2.    The Deputy Commissioner,
      Navodaya Vidyalaya Samiti (Hyderabad Region),
      Department of School Educational & Literacy,
      Government of India, 1-1-10/3, Sardar Patel Road,
      Secunderabad - 500 003.

3.    The Commissioner, Navodaya Vidyalaya Samiti,
      Department of School Education & Literacy,
      Government of India, B15, Institutional Area,
      Sector 62, Noida, Budh Nagar, Uttar Pradesh - 201 309.

4.    The Principal, Jawahar Navodaya Vidyalaya,
      Vadavathoor P.O., Kottayam - 686 010.

5.    Union of India, represented by the Secretary,
      Ministry of Human Resource & Development,
      Shastri Bhawan, New Delhi - 110 001.                .....   Respondents

(By Advocates - Mr. Millu Dandapani for Respondents-1to4 and
                Mr. Thomas Mathew Nellimoottil, Sr. PCGSC for
                respondent-5)

     These applications having been heard on 17th October, 2019, the Tribunal

on 24th October, 2019 delivered the following :

                                 ORDER

By Hon'ble Mr. E.K.Bharat Bhushan, Administrative Member -

OAs Nos. 180-772,774, 778 and 953-2018 have common points of fact and law involved and hence are being disposed of through this common order. The pleadings, documents and records in OA No. 180-772-2018 are referred to in this common order for the sake of convenience.

2. The applicants are employees of Jawahar Navodaya Vidyalaya (JNV) posted at Minicoy Islands except the applicants in OA No. 180-953-2018 who are presently posted at JNV, Kottayam. They are aggrieved by the action on the part of the respondents in effecting recovery pursuant to Annexure A5 6 letter dated 6.9.2018 pursuant following an audit objection regarding excess payment of Special Allowance. As per O.M dated 29.8.2008 of the Ministry of Finance, Department of Expenditure, Hard Area Allowance to Central Government employees posted in Nicobar group of Islands and Minicoy in Lakshadweep Islands had been sanctioned (Annexure A-1). The rates and eligibility for these allowances as well as the recommendations made by the 6 th Pay Commission are at Annexure A-3. As per Annexure A-4 the recipients were asked to opt between the two allowances and choose which benefits them most. Now as per Annexure A6 the applicants were required to refund a large sum of money.

3. The applicants contend that both these allowances were being paid to all employees of other Departments who are posted in Minicoy and other Islands of Lakshadweep. No option had been actually made available to the applicants. They also call to their assistance the order in State of Punjab & Ors. v. Rafiq Masih (White Washer) etc. in C.A.No.11527 of 2014 which has declared as impermissible, recovery from employees belonging to Class III and Class IV service (Group C & D), retired employees, recovery from employees when excess payment has been made for a period in excess of five years before the order of recovery is issued, recovery in respect of an employee who discharges duties of a higher post wrongly etc.

4. As grounds, in addition to the judgment in Rafiq Masih (supra) the applicants cite decisions of the Hon'ble Apex Court in Sahib Ram v. State of Haryana - 1995 (Supp) 1 SCC 18, Shyam Babu Verma v. Union of India - 1994 (2) SCC 521, Registrar Co-operative Societies Haryana & Ors. v. Israel Khan & Ors - 2010 (1) SCC (L&S) 1123, Purushotham Lal Das v. 7 State of Bihar - (2006) 11 SCC 492 and Bihar SEB v. Bijay Bahadur - (2000) 10 SCC 99.

5. In reply the respondents have stated that the discrepancy had been pointed out by Audit and as per extant orders drawal of both allowances together is illegal. In Annexure A-4 it has been clearly stated that "in places where more than one Special Compensatory Allowance is admissible, the Central Government employees posted in such stations will have the option to choose the allowance which benefits them the most." This had not been considered by the authorities while allowing two allowances to be drawn by the staff in question. The respondents submit that the Rafiq Masih judgment has no relevance in this case as the applicants were fully aware that they were ineligible for the allowances. Further in the order of the Hon'ble High Court of Kerala in United India Insurance Company Ltd. v. Roy 2005 (2) KLT 63 it had been maintained that if a mistake has occurred there is no impediment in correcting the same. A similar view has been taken in Chandi Prasad Uniyal v. State of Uttarakhand & Ors. (AIR) 2012 SC 2951. The respondents submitted that the employees of Lakshadweep Administration have filed OAs Nos. 181/81/2015 & connected cases on the same issue and this Tribunal vide its final order dated 2.6.2017 directed the Union Territory of Lakshadweep Administration to recover one third of the excess allowance drawn by the retired employees and the entire excess amount drawn by the serving persons in installments. Therefore, the order of recovery of excess amount can also be made applicable in the case of the applicants as well. Respondents pray for dismissing the OAs.

6. Heard Shri.Vishnu S Chempazhanthiyil, learned counsel for the applicants in all the OAs, Shri. Millu Dandapani, learned counsel for the Respondent Nos.1-3 in OAs Nos. 180-772, 774 & 778 and for respondent Nos. 1-4 in OA No. 180-953-2018, Mr. Anil Ravi, ACGSC, learned counsel for the respondent No. 4 in OA No. 180-774 & 778-2018 and Shri. Thomas Mathew Nellimoottil, Sr. PCGC, learned counsel for the Respondent No.4 in OA No. 180-953-2018. Perused the records and the judgments cited by the counsel appearing for the parties.

7. These O.As are concerned with recovery of a large sum of money from the applicants on account of wrong drawal of two allowances when they were entitled to only one. The seminal judgment in the matter of recovery of sums from employees is Rafiq Masih. This judgment has deemed as impermissible recovery under the following contingencies:

"(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."

8. The above judgment has the effect of declaring as impermissible all recoveries from a retired employee and any from an employee belonging to Group-C and D services. Enforcing the direction contained in the judgment 9 would straight away exclude applicant No. 4 in OA No. 180-772-2018, who retired from service on 29.9.2018 and all applicants in OA Nos. 180-772 & 774-2018 since they belong to Group-C and D services. No recovery of any amount is to be made from the applicants mentioned above. This Tribunal is then left with the applicants in OA No. 180-778 and 953-2018 who are still continuing in service and belonging to Group-B services. The applicants in OA No. 180/778/2018 claimed that all of them except the 6 th applicant therein are Group-C employees. However, on scrutinizing the Recruitment Rules the Grade Pay of Trained Graduate Teacher and Librarian is Rs. 4,600/- which put them in the category of Group-B employees. Therefore, recovery from them can be resorted to in accordance with clause (iii) of the judgment which is quoted below:

"(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."

During the arguments Shri Vishnu S. Chempazhanthiyil learned counsel representing the applicants pointed out that the above clause would come to the assistance of the applicants, declaring as impermissible any recovery in respect of amounts disbursed beyond five years prior to the date of the recovery order. This Tribunal finds substance in the argument raised by the learned counsel. Thus, the date issue of recovery order being 8.9.2018, no amount disbursed before 8.9.2013 would be liable for recovery. Viewed through this prism, it is seen that all the applicants in OA No. 180-778-2108 are still working in NVS, Minicoy Island. Therefore, the second allowance paid to them from 8.9.2013 to 7.9.2018 is liable to be recovered. Coming to the 1st applicant in OA No. 180/953/2018, Shri N. Vasudevan, it is seen that he had been relieved from his post in JNV, Minicoy on 12.10.2013 and thus the 10 authorities can be correct only to the extent of recovering one month's second allowance disbursed to him. In respect of the 2 nd applicant in OA No. 180/953/2018 Ms. Jiji G., it is seen that she was relieved on 8.7.2011 which was well before 8.9.2013 and hence, no sum is to be recovered from her. In so far as the 3rd applicant in OA No. 180/953/2018 Smt. Lijikutty Lawrence is concerned, it is seen that she was relieved from JNV, Minicoy on 26.3.2014 which implies that the second allowance paid to her from 8.9.2013 to 26.3.2014 is liable to be recovered. Ordered accordingly.

9. In view of the above, the Original Applications are disposed of with the above directions. No order as to costs.

(E.K. BHARAT BHUSHAN) ADMINISTRATIVE MEMBER 'SA' 11 List of Annexures in O.A. No.180/00772/2018

1. Annexure A1 - True copy of OM No.12/4/2008-E.II[B] dated 29.08.2008 issued by the Ministry of Finance, Union of India.

2. Annexure A2 - True copy of the O.M. No.12[4]/2008-E.II[B] dated 9.11.2011 issued by the Ministry of Finance, Union of India.

3. Annexure A3 - True copy of relevant portion of the Gazette of India.

4. Annexure A4 - True copy of the O.M.No.12[1]/E.II[B]/03 dated 1.3.2004 issued by the Ministry of Finance.

5. Annexure A5 - True copy of the Communication No.F.No.3- 8/Minicoy/NVS[HR]/2018-19 dated 6.9.2018 issued by the 2 nd respondent to the 1st respondent.

6. Annexure A6 - True copy of the communication No.F.No.57[A]/JNVM/2018-19/491 dated 8.9.2018 by the 1st respondent to the applicants.

7. Annexure A7 - True copy of the representation dated 10.9.2018 of the 1 applicant to the 2nd respondent.

8. Annexure A7(a) - True copy of the representation dated 10.9.2018 of the 2 applicant to the 2nd respondent.

9. Annexure A7(b) - True copy of the representation dated 10.9.2018 of the 3 applicant to the 2nd respondent.

10. Annexure A7(c) - True copy of the representation dated 10.9.2018 of the 4 applicant to the 2nd respondent.

11. Annexure A8 - True copy of communication st No.F.No.57(A)/JNVM/2018-19/508 dated 11.9.2018 by the 1 respondent to the 2nd respondent.

12. Annexure A9 - True copy of the O.M.No.F.No.18/03/2015-Estt. [Pay-I] dated 2.3.2016 issued by the Government of India, Department of Personnel & Training.

13. Annexure A10 - True copy of communication No.F.No.57/JNVM/2018- 19/113 dated 14.5.2018, by the 1st respondent to the 2nd respondent.

14. Annexure A11 - True copy of judgment in Civil Appeal No.11527/2014 in State of Punjab & others Vs. Rafiq Masih of the Hon'ble Supreme Court.

15. Annexure A12 - True copy of order dated 6.4.2018 in OA No.180/00226/2017 of the Hon'ble Tribunal.

16. Annexure A13 - True copy of order dated 9.10.2018 in OA No.180/00234/2017 of the Hon'ble Tribunal. 12 List of Annexures in O.A. No.180/00774/2018