Central Administrative Tribunal - Delhi
Vijaya Kumar vs N/A on 27 January, 2025
Item No.61(Court-5) O.A. No.1044/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1044/20233
This the 27th day of January
January, 2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Vijaya Kumar Sinha, Aged-67 67 Years,
S/o Sh. Ram Naresh Sinha, Retired Director
(Technical) from National Power Training
Institute, Nagpur. R/o Flat No. 4203, Secror D
D-3
& 4, Vasant Kunj, New Delhi -70.
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Union of India through The Secretary,
Ministry of Power, Govt. of India,Shram
Shakti Bhawan, New Delhi. - 11000..
2.The Director General, National Power
Training Institute, Sector-33,
Sector 33, NPTI C
Complex,
Faridabad
Faridabad-121003 (Haryana).
...Respondents
(By Advocates:
Advocate Mr.Prashant
Prashant Shukla with Mr. Akshat Mudgil and
Mr. B C Bhatt)
---
Page 1 of 14
Item No.61(Court-5) O.A. No.1044/2023
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J):-
1. In the present Original Application, filed under Section 19 of the Administrative Tribunals Tribunal Act, 1985, the applicant has prayed for the following relief(s):
"(i) " (i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 17.10.2022(Annnex.A/1) and consequential orders dated 10.11.2022 (Annex.A/2) de declaring to the effect that the whole action of the respondents deciding to refixing the pay of the applicant after his retirement is totally illegal, arbitrary and against the principle of natural justice and consequently, pass an order directing the respondents respondents to release the withheld gratuity amount of the applicant immediately with interest @ 12% PA.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order restraining the respondents to recover any alleged overpayment amount from the gratuity gratuity of the applicant.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation.
litigation."
2. Highlighting the facts of the case, learned counsel for the applicant submits that the applicant was superannuated on 23.09.2017. At the relevant point of time, a Criminal Case was pending being Case No. CC130/2014 with the District Judge Neyveli Court against the applicant then HOI, NPTI (SR), Neyveli (Shri Jayasamraj, Drector Vs. Shri V.K Sinha) for which the Gratuity amount of Rs. 20,00,000/-
20,00,000/ has been withheld by the respondents. The learned counsel for the applicant submits that the said criminal complaint was dismissed vide order dated 17.05.2019, which reads as under:
"At present Complaint Complaint final notice issue and seemed complainant called Page 2 of 14 Item No.61(Court-5) O.A. No.1044/2023 absent, hence their complaint is dismissed for non appearance of the complainant."
3. Even though the applicant's counsel would contend that he has challenging the impugned orders dated 17.10.2022 & 10.11.2022. He relies upon definition 3(o) 3(o) contained in CCS Pension Rule, 1972, which reads as under:
" Definitions:
"3.
******** (O). Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief."
4. He further relies upon Rule 70 and 71 of the CCS Pension Rules, 1972, 1972 which reads as under:
"70. Revision of pension after authorization (1) Subject to the provisions of Rules 8 and 9 pension once authorized after final assessment shall shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently :
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years from the date of authorization of pension.
^[(1-A) A) The question whether the revision has bbecome necessary on account of a clerical error or not shall be decided by the administrative Ministry or Department.] (2) For the purpose of sub-rule sub rule (1), the retired Government servant concerned shall be served with a notice by the Head of Office requiri requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him. (3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such exc excess payment, shall be adjusted in instalments by short payments of pension in future, in one or more instalments, as the Head of Office may direct.
^ Inserted vide GSR 628(E), dated 1st September, 2014, Government of India, Department of Pension & Pension Pensioners' Welfare Notification No.1/19/2013 P&PW(E), dated 29th August, 2014. No.1/19/2013-P&PW(E),
71. Recovery and adjustment of Government dues (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Page 3 of 14 Item No.61(Court-5) O.A. No.1044/2023 Government servant, shall be adjusted against the amount of the 1 [retirement gratuity] becoming payable. (3) The expression `Government dues' includes -
(a) dues pertaining to Government accommodation including arrears of licence fee * [as well as damages for the occupation of the Government accommodati n beyond the permissible period after the date of accommodation retirement of the allottee )] if any ;
(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax A Act, 1961 (43 of 1961)."
5. He further submits that the said recovery against the gratuity could not been withheld even assuming for the sake of arguments recovery has to be effected it has to be with a show cause notice. The applicant has already superannuated superannuated on 23.09.2017 and no orders for recovery are called for.
6. He relies upon the decision rendered by the Hon'ble Supreme Court in Civil Appeal No(s).1635/2013 in the matter of Jagdish Prasad Singh vs. State of Bihar and Others Others.
7. On the other hand, hand the learned counsel for the respondents relies upon the averments made in the counter affidavit affidavit. He submits that an undertaking dated 24.02.2009 was given by the applicant at the relevant point of time that he will have no objection if there is any recovery later due to withdrawal of higher scales. The same has been placed on record, which reads as under:
"I, " I, V.K. SINHA hereby undertake to accept the scale of pay of Rs. 14300 14300- 18300 for the post of Director with effect from the date of my taking over the charge charge of Director i.e. 17.11.2008 F.N. subject to the condition that I will have no objection if there is any recovery later due to withdrawal of the same."
same.
Page 4 of 14 Item No.61(Court-5) O.A. No.1044/2023
8. Learned counsel for the respondents further relies upon the decision rendered by the Hon'ble Supreme Court in Civil Appeal No. 3500/2006 in the matter of High Court of Punjab & Haryana & Ors vs. Jagdev Singh.
9. Going by the averments as contained in the counter affidavit most specifically the preliminary objection it has been stated by the learned counsel for the respondents that an amount of Rs.20.00 lakhs was withheld from the Gratuity amount of Shri V.K. Sinha due to pending decision of court case No. CC 130/2014, J. Jayasamraj, Director Vs V.K. Sinha, Director, NPTI (SR), Neyveli. Shri V.K Sinha had not provided judgment copy to NPTI. Therefore, NPTI HQ. requested Principal Director, NPTI, Neyveli to collect judgment copy from the court and the same was informed to Shri V.K. Sinha. By the time NPTI has withdrawn higher grade pay of Directors for settlement of long pending Audit para vide order dated 25.07.2019. Shri V.K. Sinha is one the beneficiary who drawn higher grade pay and subject to revision/re-fixation revision/re fixation of the pay. The pay of Shri V.K. Sinha was re re-
fixed vide order dated 10.11.2022 along with other retired Directors/Principal Directors. The excess amount paid to Shri V.K. Sinha due to grant of functional functional grade to Directors has been worked out which comes to Rs.20,56,769/-. It has been further contended tha that the he applicable pay scale for Directors in NPTI is Rs. 12000 12000-375- 16500 (5th Pay Commission) as per NPTI's pay structure/Recruitment Page 5 of 14 Item No.61(Court-5) O.A. No.1044/2023 Rules (RR). Prior to the implementation of 5th CPC, pay scale of Directors in NPTI and CEA were same i.e. Rs.3700 Rs.3700-5000, and the same was revised to Rs.12000-16500 Rs.12000 16500 in 5th CPC. DoP&T issued O.M. dated 06.06.2000, OM dated 20.12.2000 and OM dated 29.12.2010 placing Directors of Organized Engg Service (Group (Group-A Engineering Service) of CEA in the pay scale of Rs. 14300 14300-18300. He further ther submits that an an MoU was signed between Ministry of Power and NPTI for the year 2001-2002.
2001 2002. The Director General, NPTI, in exercise of the powers delegated to him under the MoU entered into between Ministry of Power and NPTI for the year 2001 2001-2002, placed all the Directors of NPTI with 13 years of continuous service in Group-A A in the higher pay scales of Rs.14300 Rs.14300-18300 with effect from 30-03-2002 2002 vide Office Order No.26/31/Admn./NPTI/HQ/15793 No.26/31/Admn./NPTI/HQ/15793-800 dated 30.03.2002 after submission of undertakings from ind individuals containing that: "subject to the condition that I will have no objection, if there is any recovery later due to the withdrawal of the same". Pending final approval of the Government on the proposal, an Undertaking from the Directors were obtained to the effect that they will have no objection if there is any recovery later due to withdrawal of the higher scales. Subsequently, the matter was deliberated in the 13th Meeting of Governing Council of NPTI held on 31.05.2002 and the decision was taken:
"In view of the detailed justification provide by DG, NPTI, the Governing Council ratified the order issued by DG, NPTI, after getting the same examined in theMinistry of Power."Page 6 of 14
Item No.61(Court-5) O.A. No.1044/2023
10. It has been further stated by the learned counsel for the respondents that besides Director (Tech./Faculty), the post of Director (Fin. & Admn.) was also considered for placement in the same functional grade. The Director (Fin & Admn.) was part of core management of NPTI and also responsible to implement Pay Scale as per rulee and applicability in NPTI. After placement of Directors in the higher grade pay, 2 Institutes of CEA at Bengaluru namely PSTI & HLTC were transferred to NPTI with effect from 01.04.2004 along with employees. Directors working in these Institutes were als also granted functional grade. DG, NPTI vide Note dated 05.02.2007 addressed to Secretary, MoP sought approval for placing four more Directors in the higher pay scales. Ministry of Power vide letter No.7/6/2007 T&R dated 05.09.2008, 15.09.2008 and 23.09.2008 No.7/6/2007-T&R addressed to DG, NPTI indicated that the DOP&T's OMdated 6.6.2000 and dated 20:12.2000 was only for the organized Group 'A' Engineering Services. As the Central Power Engineering Service (CPES) is an organized Group 'A' Engineering Service, the functional grade scale of Rs.14300-400-18300 Rs.14300 18300 can be granted to the eligible officers of CEA. However, the officers of NPTI do not belong to any organized Group 'A' Engineering Services, hence, provision of OM as mentioned above may not be applicable to them. Ministry of Power vide letter No.7/6/2007-T&R No.7/6/2007 T&R dated 04.06.2012 addressed to DG, NPTI again indicated thatthe officers of NP NPȚI do not belong to any organized Group 'A' Engineering Services, hence, the functional grade Page 7 of 14 Item No.61(Court-5) O.A. No.1044/2023 scale of Rs. 14300-400-18300 14300 18300 may not be applica applicable to them. He further submits that C&AG vide their letter dated 24.9.2010 raised an audit para regarding grant of higher functional pay scale to the Directors in NPTI stating that a reply may be submitted to them with specific orders of Ministry of Finance Finance for grant of higher grade pay of Rs.8700/ . NPTI had submitted reply to C&AG audit vide Office Note Rs.8700/-.
dated 04.12.2010 stating that the order was issued by NPTI under the powers delegated to DG, NPTI through MoU of 2001 2001-02 and the order of revision of scales scales was ratified by the Governing Council in its 13th meeting held on31.05.2002. The Audit Team, during their auditing of accounts for the period from 01.04.2010 to 31.03.2011, again raised the same audit para vide their letter dated 23.09.2011 wherein itwas itw inter-alia alia mentioned that the order was ratified by the Governing council subject to examination by Ministry of Power and asked NPTI to submit the copy of approval of Ministry of Power. Further, the Pay and Accounts office of Ministry of Power, vide the their letter No. G.25014/CA-Power/IAW/2012 G.25014/CA Power/IAW/2012-13/355 dated 06.12.2012 inter-alia alia made the following comments on granting higher grade pay (functional grade) irregularly to the Directors of NPTI:
NPTI:-
"NPTI has given promotion to the post of Director in the Grade Pa Pay of Rs.7600 of PB-3 PB 3 and simultaneously these Directors were placed in Grade Pay of Rs.8700 of PB-4 PB 4 (as per 6th pay commission) notionally from the date of taking over the charge ofthe post of Director. As such the provision contained in DoP&T OM No.22/1/2 No.22/1/2000-CRD dated 6.6.2000, dated 20.12.2000 and dated 29.12.2010, have been made applicable to the officers of NPTI while the officers of NPTI do not come under organized Group 'A' Engineering service. Therefore, the pay of the officers of NPTI may be re-fixed re d as per the rules applicable to the NPTI officers. The excess payment may be stopped forthwith and excess payment already Page 8 of 14 Item No.61(Court-5) O.A. No.1044/2023 made be recovered under intimation to Internal Audit Wing of MoP within 15 days."
NPTI vide letter No. NPTI/HQ/Actts/PAO/16/IA/2013 NPTI/HQ/Actts/PAO/16/IA/2013-14/1336 dated 5-6-2014 2014 submitted reply to audit but the Audit Para was not settled.
11. It has been further contended by the respondents counsel that further, urther, the Inter Audit team of Ministry of Power, in the report for 2015-16, 16, again raised this para and also suggested for fixing responsibility for taking no action since the issue raised by them during 2011-12 2011 12 causing over/excess payment of salary and allowances of Rs.6.50 crores as on 01.01.2017. In addition to the above Audit observations of the PAO, IAW of the Ministry of Power, New Delhi, the Principal Director of Commercial Audit, New Delhi, has forwarded details of the outstanding Audit Paras under which similar Audit Para raised during the year 2010 2010-11 has shown as pending for verification during the next Audit vide letter No. S.L.P III Copy Copy-VV-
III / 35--01 01 /transaction audit / NPTI / 2018 2018-19 / 05 dated 05.04.2019.
Further, Internal Audit Wing of Ministry of Power vide letter Nos. G.25014/CCA/ Power/IAW/IAR/NPTI/Faridabad/2016 Power/IAW/IAR/NPTI/Faridabad/2016-17/102 dated 13-02-2018, 2018, 30-08-2018, 22-02-2019 2019 and 08 08-07-2019 keeps intimating NPTI for non-settlement non settlement of the Audit Para stating that:
that:-
"as there no specific Order from MoP / DoP&T regarding granting higher grade to Director of NPTI or other organization. Hence, Para is still outstanding.
outstanding. Recovery from the Officers who have been granted higher grade pay need to be affected then the Para is outstanding".
12. He further submits that in spite of the repeated instructions from Ministry of Power and audit observations, the Orders were Page 9 of 14 Item No.61(Court-5) O.A. No.1044/2023 issued in NPTI till April, 2014 giving the functional grade to the Directors of NPTI. When the repeated attempts, to get the audit para settled, failed, NPTI issued Order dated 25.07.2019 for withdrawing the higher pay scales granted to Directors and for recovery of excess payment. In the said Order dated 25.07.2019, it was inter inter-alia mentioned that the pay of Directors / Principal Directors, those who have been granted higher grade pay, is required to be re re-fixed. Several retired Officers, aggrieved by NPTI's NPTI's Order dated 25.07.2019, had represented to Ministry of Power. Apersonal hearing was given to the retired Officers by Secretary, Ministry of Power. After listening to the grievance of the retired officers of NPTI, it was decided in the Ministry of Power Power that the matter be examined thoroughly in the Ministry and pending a final decision, the impugned order dated 25.07.2019 be kept in abeyance. Accordingly, NPTI's Order dated 25.07.2019 was kept in abeyance vide MoP letter No.7/6/2007 No.7/6/2007- T&R(Part) dated 21.08.2019 21.08.2019 and it was decided to re re-examine the matter to take most appropriate and logical sustainable view. The Indian Audit and Account Department again pointed out vide letter No. DGA(Energy)/Admn. Coord/03-06/2021 Coord/03 06/2021-22/448 dated 25-03-
2022 regarding non
non-recovery
overy of Rs.10.23 Crores from
Directors/Principal Directors account on of overpayment of salary, pension and allowances that persistent defiance of the MoP directives and disregard of the Audit observations by NPTI in this serious matter has resulted in non-recovery no recovery of Rs.10.23 Crores (upto March, 2021). Page 10 of 14 Item No.61(Court-5) O.A. No.1044/2023 The he matter was re-examined re examined and a meeting was held under the chairmanship of Secretary, Ministry of Power on 19.04.2022 to discuss the issues related togrant of higher pay scales to Directors of NPTI. It was was observed that the higher pay scales were granted to Directors without specific approval of Government and in spite of repeated audit objections with clear directions to stop and recover excess payments. Since, the grant of higher pay scales to Directors was not in order, it has been decided to withdraw it. It was also observed that the pay of serving officers has already been re re-fixed at lower scale after withdrawal of higher pay scales and Pension of Officers who retired after 25.07.2019 are also fixed iin the actual scale of pay arrived after withdrawal of higher grade pay. He further submits that the Ministry of Power, accordingly, vide letter dated 17.10.2022 advised NPTI to re-fix re fix the pay/pension of serving/retired employees in the applicable scale of pay.There is no specific order from the Ministry of Power / DoP&T for granting Directors of NPTI a higher grade. He further submits that from rom the above submissions, it is evident that officers of NPTI don't belong to any Organiz Organized Group-A service and orders orders issued by DoP&T were not applicable on them which was duly communicated by Ministry of Power and objected by Audit many times. It is established that the higher scales of pay was granted to Directors of NPTI without specific approval of the Government, in in persistent defiance of the MoP directives and disregard of the Audit observations. The decision to withdraw the Page 11 of 14 Item No.61(Court-5) O.A. No.1044/2023 higher scales of pay has been correctly taken after considering the facts of the case and Rules in this regard. The pay/pension of Petitioner needs to be adjusted in accordance with the rules and regulations. Therefore, T the he OA is devoid of any merit and liable to be dismissed without any relief.
13. Having heard the learned counsel for the parties and perused the pleadings available on record, we observe that it is not in dispute that the applicant was superannuated on 23.09.2017. The gratuity had been withheld only on the ground that a private criminal complaint case was pending for consideration and it was specifically ordered vide office communication communication dated 01.02.2018 that till the judgment is finalized the gratuity amount has been withheld. In the interregnum finalized, interregnum, the audit raised an objection and an office order dated 10.11.2022 (Annexure A/2) was issued, which reads as under:
"In pursuance Ministry Ministry of Power's letter No.7/6/2007 No.7/6/2007-T&R (Part) dated 17.10.2022 and this office order No.26/31/Admn./NPTI/HQ/3449 No.26/31/Admn./NPTI/HQ/3449-64, dated 25.07.2019, the pay of Shri V.K. Sinha, ExEx-Director, NPTI(WR), Nagpur is hereby re-fixed re as under:
S. Pay Details Date of next Pay re-fixed No. increment
1. Promoted as Director w.e.f. 17.11.2008 --------- Rs.38240 (Rs.15600-39100+GP 7600)
2. 3% increment 01.07.2009 Rs.39390 3% increment 01.07.2010 Rs.40580 3% increment 01.07.2011 Rs.41800
3. 3% increment 01.07.2012 Rs.43060
4. 3% increment 01.07.2013 Rs.44360
5. 3% increment 01.07.2014 Rs.45690
6. 3% increment 01.07.2015 Rs.47060 Page 12 of 14 Item No.61(Court-5) O.A. No.1044/2023
7. On implementation of 7th CPC - L-12 01.07.2016 Rs.122900 (78800-209200)
8. On increment 01.07.2016 Rs.126600
9. On increment 01.07.2017 Rs.130400
14. The recovery is so effective as per the aforesaid chart w.e.f. 2008.
15. In the peculiar facts and circumstances of the case, what we find is that whether the order dated 25.07.2019 can be applied retrospectively to the applicant herein, who had already superannuated on 23.09.2017, on the analogy of an undertaking that was given by the applicant qua the pay scale of 14300-400-18300 for the post of Director w.e.f. taking of the charge. No undertaking qua the gratuity was given at the relevant point of time. Admittedly, the applicant was not in service while an office order dated 25.07.2019 was issued. The gratuity was withheld only on the ground that a criminal case was pending, which was also dismissed on 17.05.2019, which was prior to the date of the office order dated 25.07.2019. It is also the admitted position that no show cause notice was issued to the applicant at the relevant point of time. The recovery sought to be made is based on the revised revision of pay to a retired employee which also appears to be contrary to the facts of the present case which are peculiar in nature. We are also fortified by the view taken by the Hon'ble Supreme Court in the matter of Jagdish Prasad Singh (supra).
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16. In view of the same, the order of re re-fixation cannot be applied to the facts of the present case as the applicant has already superannuated on 23.07.2017.
23.07.2017. Therefore, the impugned orders dated 17.10.2022 and 10.11.2022 are hereby quashed and set aside. The respondents are directed to release the withheld gratuity amount of the applicant within a period of three months from the date of receipt of a certified copy of this order, failing which the applicant shall also be entitled to interest at the GPF rate. In view of the peculiar facts and circumstances of the case, the prayer of the applicant for grant of interest is declined.
17. In view of the above, above, the present Original Application is disposed of. All pending Application, pplication, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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