Central Administrative Tribunal - Bangalore
A Rajeswara Rao vs National Water Development Agency on 22 August, 2024
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OA. No.606/2023/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00606/2023
ORDER RESERVED ON: 09.08.2024
DATE OF ORDER: 22.08.2024
CORAM:
HON'BLE JUSTICE B. K. SHRIVASTAVA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
A Rajeswara Rao
Aged around 59 years
Son of Late A. Bhaskara Rao
Residing at
C/o H.U Prabhakar,
H.No. 26, VEERU 3rd Floor,
5th Temple Street, 16th Cross, Malleswaram,
Bengaluru - 560 003.
(Working as Executive Engineer, ID, NWDA) ...Applicant.
(By Advocate, Shri Vedanth Anand Chugh)
Vs.
1. Union of India
Through its Secretary Ministry of Jal Shakti,
Department of Water Resources, River
Development and Ganga Rejuvenation
6th Floor, Shram Shakti Bhavan,
Rafi Marg,
New Delhi - 110 001.
2. Director General,
National Water Development Agency,
18-20, Community Centre, Saket,
New Delhi - 110 017.
3. Deputy Director (Admn.)
National Water Development Agency,
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18-20, Community Centre, Saket,
New Delhi - 110 017.
4. Chief Engineer (South)
National Water Development Agency,
5-2-68, Mahatma Gandhi Markfed Bhavan,
1st Floor, Jambagh,
Putlibowli (Opposite Vikram Theatre)
Hyderabad - 500 095.
5. Superintending Engineer, Investigation,
National Water Development Agency
5-2-68, Mahatma Gandhi Markfed Bhavan,
1st Floor, Jambagh,
Putlibowli (Opposite Vikram Theatre)
Hyderabad - 500 095. ...Respondents
(By Shri Vishnu Bhat, Sr. Panel Counsel)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
(i) "Set aside the Impugned Order dated 14.11.2023 bearing Ref.
No. ADMN.20036/1/2022/9955 (Annexure-A1) passed by the Respondent No. 3;
(ii) Set aside communication dated 15.03.2023 bearing reference F.No. Admn -20036/1/2022 issued by the Respondent No. 3; (ANNEXURE A4).
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(iii) Set aside Office Order dated 01.04/05.2023 bearing No. NWDA/IC/Admn./F.09/2022/789-94 passed by the Respondent No. 5 (Annexure-A5).
(iv) Issue directions restraining the Respondents from initiating any action or proceedings seeking recovery of any alleged excess amounts that may have been paid to the Applicant as a result of the revision of his pay matrix;
(v) Issue directions to the Respondents to pay to the Applicant such amounts, if any, that have been unilaterally deducted from his pay.
(vi) Pass such other or further orders as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case, including award of the costs of this Application, in the interests of justice and equity."
2. On the grounds as mentioned in para 5 (A to I), the brief fact of the applicant is that the applicant is currently employed and working as the Executive Engineer, Investigation Division, with National Water Development Agency in Bengaluru. He was granted 3rd Financial upgradation under the Modified Assured Career Progressions Scheme (MACP) in Pay Band-2 with effect from 18.02.2016 and consequent to the implementation of the 7th Central Pay Commission, his pay was re-fixed in Level-9 of the pay matrix (corresponding to Pay Band-2) with effect from 01.01.2016 and in 2017 the applicant received functional promotion from the post of Assistant Engineer to Assistant Executive Engineer and his pay 4 OA. No.606/2023/CAT/Bangalore Bench matrix was raised from Level-9 to Level-10 with effect from 12.07.2017. Pursuant to above, the applicant continued to dutifully discharge his duties and received his monthly pay without any interruptions. On 15.07.2020, the applicant was promoted to the post of Executive Engineer in Level-11 of the pay matrix with effect from 15.07.2020. After a lapse of 05 years, the Respondent No.3 issued a communication dated 15.03.2023 bearing reference F.No. Admn.-20036/1/2022 to the Respondent No.4 stating that as the Applicant received pay fixation at the time of 3rd financial upgradation, he was not entitled to any additional increment at the time of his promotion to Assistant Executive Engineer. Consequently, the Respondent No.5 proceeded to issue office order dated 01.04/05.2023 whereby the applicant's pay was unilaterally revised. By the said office order, the Respondent No.5 also ordered that the applicant's pay revision would be subject to an audit and excess payment, if any, would be recoverable by adjustment against future payment. It is submitted that the applicant is due to retire on his superannuation in January, 2024. The applicant relies on the judgment of the Hon'ble Supreme Court's in State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334 and argues that the impugned order dated 14.11.2013 of the respondents directing recovery of alleged excess amount from the applicant along with penal interest is illegal and against the Hon'ble Apex Court Judgment. Therefore, it needs to be set-aside and 5 OA. No.606/2023/CAT/Bangalore Bench all the reliefs claimed should be granted. The counsel for the applicant has also quoted various judgments in support of his arguments which are as follows: -
State of Punjab Vs. Rafiq Masih (White Washer) and other
1. (2015) 4 SCC 334 Thomas Daniel Vs. State of Kerala and others 2022 online SC
2. 536 P Kannan Vs. The Director, KPTCL & others (W.P. No.
3. 3422/2023 (S-CAT) Hon'ble High Court of Karnataka.
Member Secretary, Central Silk Board & Others V. M.K. Srinivas
4. & Others. W.P. No. 3422/2023 (S-CAT) Hon'ble High Court of Karnataka.
A Francis Royan V. Union of India & Others OA No.
5. 170/000399/2018, Hon'ble CAT, Bengaluru Bench.
Union of India & Others v. A. Francis Royan. W.P No.
6. 5557/2020, Hon'ble High Court of Karnataka Col. B.J. Akkara (Retd.) V. Government of India and Others
7. (2006) 11 SCC 709 Sahib Ram V. State of Haryana and Others 1995 Supp (1) SCC
8. 18 Syed Abdul Qadir V. State of Bihar & Others (2009) 3 SCC 475
9. State of Kerala & Others v. Seena M OP (KAT) No. 95/2023,
10. Hon'ble Kerala High Court.
Shivakumar B V. Managing Director, BESCOM & others. Writ
11. Petition No. 5647/2022 (S-RES) Hon'ble High Court of Karnataka.
Parveen Kumar & others v. New Delhi Municipal Council &
12. others. OA No. 1328/2022, Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi.6
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3. On notice, respondents have filed their reply statement and subsequently the applicant has filed rejoinder and further additional reply along with miscellaneous application has been filed by the respondents which is allowed and additional reply is taken on record.
4. We have carefully gone through the entire record and have considered all the rival contentions.
5. From the averments of the both the parties, it is clear that basic facts of the case are not contested that there is wrong fixation of the pay scale of the applicant w.e.f., his functional promotion from the post of Assistant Engineer to the post of Assistant Executive Engineer when his pay matrix was raised from level-9 to level-10 w.e.f., 12.07.2017. It is also the fact that at that point of time, he was originally an Assistant Engineer which is a class-II post and promoted to Assistant Executive Engineer which is a Class-I post and he was not Head of Office which he subsequently became when he was promoted to the post of Executive Engineer. It is also fact that the irregularities in his pay scale were not detected for more than 05 years and only vide communication dated 15.03.2023 of Respondent No.3 to the Respondent No.4 stating that as the applicant's pay fixation at the time of 3rd financial upgradation he was not entitled to any additional increment at the time of promotion to the Grade of Assistant Executive Engineer and consequently Respondent 7 OA. No.606/2023/CAT/Bangalore Bench No.5 proceeded to issue office order dated 01.05.2023 and applicant's pay was unilaterally revised. The assertion of the applicant that before revising the same, he was not given any notice, as it had civil consequences, that fact is also not denied hence procedural revision was not correct.
6. But apart from this it is also not denied that the applicant superannuated in January 2024 hence the detection of his wrong fixation and order for recovery and refixation of his salary dated 01.05.2023 was within less than last 01 year of his service. The contention of the respondents is that as the applicant was Senior Class -I officer and also Head of Office at the time of the said order of refixation dated 01.05.2023, hence it does not get protection of the Supreme Court Judgment as cited in State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334. And as the applicant has not implemented the said refixation of his salary when he himself was the Drawing and Disbursing Officer for his salary on 01.05.2023 and till the date of his retirement there is mala fide and omission on his part. Hence, he cannot get the benefit of the said citation of State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334.
7. The applicant has drawn our attention to the operating part of the said judgment in State of Punjab and others vs. Rafiq Masih (White 8 OA. No.606/2023/CAT/Bangalore Bench Washer) and others (2015) 4 SCC 334 wherein, the Hon'ble Apex Court laid down following:
"It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (ili) Recovery from the 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.9
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(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. Simple reading of the above shows that out of the five sub paras two of them are very relevant to the case of the applicant as the Hon'ble Apex Court in para (ii) had ruled that recovery from the retired employees who are due to retire within one year of the order of recovery would be impermissible in law. We do not find any exception has been laid down therein and the respondents are unable to show their revision of salary order and recovery order was not passed when the applicant employee was due to retire within one year of the said order of the recovery. Hence, the case of the applicant is covered in that rulings.
9. Further as the Hon'ble Apex Court in sub para (iii) has held that recovery from the employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued would be impermissible in law and there again no exception has been laid down. And we find that in the case of the applicant as agreed by both the parties the wrong fixation was allegedly done in the year 2017 and it was detected some time in 2023 and order for refixation and recovery was passed in May 2023. So it is not in dispute that more than five years of 10 OA. No.606/2023/CAT/Bangalore Bench continuous excess payment had been made. Hence, the case of the applicant is very much covered under this clause of the ruling also.
10. The respondents claim that the applicant was a Senior Class-I officer and also Head of Office and Drawing and Disbursing officer in 2023 and so he should have implemented the 2023 May order of revision of his salary and should have recovered the same. And they argue that by not doing so the applicant has done misconduct and it shows a mala fide in his conduct so he will not get the benefit of the said order in the case of State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334.
11. But clearly as per the said Hon'ble Apex Court Judgment, the facts of mis-representation or fraud by the applicant for excess payment is required to be substantiated against him in the year of the alleged irregularity i.e., 2017 when he was just an Assistant Engineer and was getting promotion as Assistant Executive Engineer and not what he was in the year 2023. At that point of time, in the year 2017, the applicant was a Class-II officer and was not himself a Drawing and Disbursing Officer or the Head of the Office.
12. Merely because the applicant at the time of detection of the excess payment due to wrong fixation of his pay in 2023, was a Drawing and Disbursing Officer and Head of the Office is not a sufficient ground to conclude any mala fide on the part of the applicant. Further the applicant 11 OA. No.606/2023/CAT/Bangalore Bench after receipt of the order of refixation of his pension in the year 2023 has made several representations to the Director General, National Water Development Agency with a subject, "request of waiving off the excess amount paid to him on account of wrongful payment fixation on his promotion to the post of 'Assistant Executive Engineer'", wherein he has also referred DOPT OM dated 18.03.2015-Estt. (Pay -I) dated 02.03.2016 and 03.10.2022. And wherein DOPT has basically said about recovery of excess payment made to Government servant in the light of the said judgment of State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334, and how it has to be dealt with as certain type of recoveries were impermissible. And from the applicant also such recovery was clearly impermissible.
13. Hence, the applicant had requested the respondents' authorities to waive off the same vide his letter dated 09.05.2023 which is filed before us at page 43 of the OA which was followed by another letter dated 24.05.2023. We find that the applicant was making a legitimate claim to the authorities to consider his case in the light of Rafiq Masih case supra and in the light of the OM of DOPT dated 02.03.2026 and OM of DOPT dated 03.10.2022 related to the subject. But instead of examining his representation and taking a decision in the light of the Hon'ble Apex Court judgment and two OMs of DOPT, the department 12 OA. No.606/2023/CAT/Bangalore Bench went ahead vide its letter dated 03.11.2023 with a subject of, "revision of pay of Shri A. Rajeswara Rao, EE, ID, NWDA", and ordered following: -
"Reference is invited to the letters cited above, vide which this office was directed you to recover the excess amount paid to Sri A.Rajeswara Rao, EE, ID, NWDA, Bengaluru from the month of May, 2023 Salary onwards. Inspite of reminders on 08.05.2023 & 18.10.2023 and telephonic instructions also, the EE, ID, Bangalore had not recovered the excess payment drawn from his salary. The EE, ID, NWDA, Bangalore is not following the instructions of higher officers. It is viewed serious in nature and not following the higher officers' instructions is against the conduct rules of the employee. His retirement on his superannuation is due in January, 2024, hence, before his retirement he has to deposit in the Chest the entire excess amount drawn by him with penal interest."
14. To this, the applicant has sent representation vide its letter dated 15.11.2023 with a subject to request, "for waiving off the excess amount paid to him on account of wrongful Pay fixation on his promotion to the post of AEE", and requested that "so I implore you again that, the recovery of excess amount as allegedly paid to me on account of pay fixation may kindly be not enforced till this matter is clarified from Director General, NWDA" as he had requested superior authority to dispose of his application in the light of the Hon'ble Supreme Court Judgment and OMs of the DOPT.
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15. It was followed by another letter to the Director General dated 20.11.2023. Clearly from the various correspondences which are available on record, the bona fide of the applicant is not discredited. He had requested the authorities to consider his case strictly as per rule laid down by the Hon'ble Apex Court and pursuant to which the DOPT has issued clear guidelines. And the department without looking into the said matter and without arriving at a conclusion that in 2017 the wrong fixation was due to misrepresentation or fraud by the applicant went ahead to press for recovery of the amount from the applicant.
16. And it is alleged by the applicant that from his retiral dues, more specifically from his DCRG etc., the alleged excess payment amount has been withheld.
17. From the records and the averments of both the parties, we have not come to any evidence which may show that applicant being an Assistant Engineer in 2017 and getting promoted as "Assistant Executive Engineer" was in a position to influence the decision of the authorities, or fix his salary or he himself was Drawing and Disbursing Officer and he himself was the Head of the Office or he misrepresented or committed fraud in refixation of his salary. Merely because at the time of the detection of the wrong fixation in 2023 he was Head of Office and he was Executive Engineer and he was himself Drawing and Disbursing Officer for 14 OA. No.606/2023/CAT/Bangalore Bench his salary, it cannot be imputed that he has committed misconduct or fraud or misrepresentation for making a decision in the year 2017 which resulted in wrong fixation of his salary.
18. Even being the Head of Office and Drawing and Disbursing Officer, the applicant retains his inherent right to represent to appropriate authority to get his due as per the Hon'ble Apex Court Judgment and various OMs of DOPT which are very clear and unambiguous. We do not find any reason for any contrary view on the matter.
19. Considering the facts and circumstances of the case and in the light of various judgments quoted by the applicant including State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334 and nothing contrary shown by the respondents, we have no doubt in our mind that the applicant has shown his bona fide and he has substantiated his case and made out a convincing ground to interfere with the impugned order. Accordingly, we pass the following order:
i. We set aside impugned order dated 14.11.2023 bearing reference no. ADMN.20036/1/2022/9955 (Annexure- A1) passed by the Respondent No.3.
ii. We further set aside communication dated 15.03.2023 bearing reference F.No. Admn-20036/1/2022 issued by the Respondent 15 OA. No.606/2023/CAT/Bangalore Bench No.3 and set aside the office order dated 01.04/05.2023 bearing no. NWDA/IC/Admn./F.09/2022/789-94 passed by the Respondent No.5 (Annexure-A5).
iii. We direct the respondents to stop recovery of any alleged excess amount that may have been paid to the applicant as a result of the revision of his pay matrix in 2017 to the date of his detection of wrong fixation of his salary and if any amount has been unilaterally deducted or withheld from the applicant, the same may be returned to the applicant forthwith.
iv. The applicant has not contested about prospective effect of the refixation of the salary so that respondents are free to fix his salary and pension and other pensionary benefit and pay him accordingly. And if they have already refixed his salary, they may go ahead to implement it prospectively and the same need not be further visited.
v. This whole exercise of return of any withheld amount shall be done within 03 months from the date of receipt of the certified copy of this order. And in case if the respondents fail to do so, they will be liable for 6 % simple interest thereafter on the withheld amount. 16
OA. No.606/2023/CAT/Bangalore Bench vi. With the above directions, the OA is allowed. All associative MAs, if any, are disposed of. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE B.K. SHRIVASTAVA)
MEMBER (A) MEMBER (J)
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