Central Administrative Tribunal - Delhi
Textiles vs Dr Prabir Jana on 21 November, 2023
1
Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
Central Administrative Tribunal
Principal Bench, New Delhi
M.A. No. 3470/2023
In
O.A. No. 527/2023
M.A. No. 612/2023
This the 21st day of November, 2023
Hon'ble Mrs. Pratima K Gupta, Member (J)
1. PRABIR JANA
S/O DULAL CHANDRA JANA
R/O C7-123, NAVEEN NIKETAN,
SDA, NEW DELHI - 110016
2. RUSSEL TIMOTHY
S/O ROBERT SELVADOSS
R/O 8A, RENAISSANCE AVENUE,
VIJAYANAGAR 1ST MAIN,
VELACHERY, CHENNAI 600042
3. SUHAIL ANWAR
S/O ANWAR HUSSAIN
R/O 202 NIMBUS PARAMOUNT
SYMPHONY CROSSING REPUBLIK
GHAZIABAD 201016
4. SHARMILA JAYANT DUA
D/OJAYANT DUA
R/O 903, TOWER E,
VIVAREA,SANEGURUJI MARG,
MUMBAI CENTRAL- 400011
5. JOMICHAN S PATTATHIL
S/O SOURIARPHILIPOSE
R/O PATTATHIL, PLOT NO. 39,
SEC 8A, CBD BELAPUR,
NAVI MUMBAI 400614
6. AJIT KUMAR KHARE
S/O SHRI SRIPATI RAI KHARE
R/O 801, MORESHWAR CHS LTD.,
PLOT NO. 35, SECTOR 21,
KHARGHAR,
2
Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
NAVI MUMBAI - 410210
7. SHALINI SOOD SEHGAL
W/O AASHISH SEHGAL
R/O A-94 FIRST FLOOR,
MADHUBAN ENCLAVE,
NEAR NIRMANVIHAR,
DELHI- 110092
8. PAVAN GODIA WALA
S/O RAMESHCHANDRA
R/O 602, TULIP CHS,
PLOT#13, SECTOR 4,
KHARGHAR, NAVI MUMBAI- 410210
9. RAGHURAM JAYARAMAN
S/O K JAYARAMAN
R/O 3B, OLD NO 12, NEW NO 21,
28TH CROSS STREET, INDIRA NAGAR,
ADYAR, CHENNAI 600020
10. MALINI DIVAKALA
D/O SURENDRAPEPAKAYALA
R/O C1406, RAMKY TOWERS,
GACHIBOWLI, HYDERABAD 500032
TELANGANA
11. NOOPUR ANAND
S/O SANDEEP ANAND
R/O TOWER 14; FLAT 1402;
VIPUL GREENS; SOHNA ROAD;
GURUGRAM;
HARYANA; 122018
12. M.K. GANDHI
S/O C. MUTHUKRISHNAN
R/O PLOT NO 45, PHASE I,
JANANISSRINILA YAM,
SEMMANCHERRY, CHENNAI 600119
13. MONIKA GUPTA
W/O SUKESH GUPTA (HUSBAND)
R/O 85B POCKET-1,
MAYURVIHAR PHASE -1,
DELHI 110091
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Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
14. VANDANA NARANG
W/O NANDKISHORNARANG
R/O 4585, B5&6, VASANTKUNJ,
NEW DELHI 110070
15. ANITHA MABEL MANOHAR
W/O MR. RABU MANOHAR
R/O J74B, PLOT NO.1964, 13TH MAIN ROAD,
ANNA NAGAR (WEST), CHENNAI - 600040,
TAMIL NADU, INDIA
16.VANDITA SETH
D/O MR KESHAVNATH SETH
R/O B-35. INFOCITY TOWNSHIP.
GANDHINAGAR. 382007.GUJARAT
17. ANUPAM JAIN
S/O VINOD KUMAR JAIN
R/O C-507, ANANDLOKSOCIETY,
MAYURVIHAR PHASE-I, DELHI - 110091
18. SIBICHAN K M
S/O LATE MR. K A MATHEW
R/O C-2, TOWER 11, TYPE 4,
NBCC RDA, KIDWAI NAGAR EAST,
NEW DELHI - 110023
19.SUDHA DHINGRA
W/O RAVI DHINGRA
R/O 223, GULMOHAR ENCLAVE
NEW DELHI-110049
.....Applicants
(Advocates: Mr. Ankur Chhibar with
Mr. Nikunj Arora)
Versus
1. UNION OF INDIA,
THROUGH SECRETARY,
MINISTRY OF TEXTILES,
UDYOG BHA WAN,
RAFI AHMED KIDWAI MARG,
NEW DELHI- 110011.
2. MINISTRY OF TEXTILES,
THROUGH UNDER SECRETARY,
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Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
NIFT SECTION,
UDYOG BHAWAN,
RAFI AHMED KIDWAI MARG,
NEW DELHI- 110011.
3. DIRECTOR GENERAL
NATIONAL INSTITUE OF FASHION
TECHNOLOGY,
NIFT CAMPUS, HAUZ KHAS,
NEW DELHI-110016
.....Respondents
(Advocates: Mr. S N Verma)
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Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
O R D E R (ORAL)
MA No.3470/2023
This MA has been filed by the respondents seeking vacation of the stay granted vide order dated 27.02.2023. However, with the consent of both the parties, the OA itself is taken up for final hearing.
OA No.527/2023
2. The applicants in the instant Original Application are aggrieved by a recovery of the amounts received by them on account of pick-up and drop allowance for the period 01.09.2008 to 19.06.2018. Accordingly, they ventilate their grievance in the instant Original Application seeking the following relief(s):-
" (i) To quash and set aside the order dated 17.05.2021, 22.04.2022, 01.02.2023, 16.02.2023 and email dated 01.02.2023 whereby the recoveries have been initiated against the Applicants.
(ii) To direct the Respondents not to proceed with the recoveries of already paid additional Transportation allowance which was paid as per the decision taken by the Board of Governors."
3. Briefly, the applicants' counsel navigates us to the history and background of this Original Application. In 6 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 the year 2008, all the applicants (19) were either Professors or Senior Professors serving Respondent No. 3, when the Board of Governors in the 14th meeting held on 16.10.2008 took a decision to extend Rs. 5,000/- per month to the Senior Professors and Rs. 3,000/- per month to Professors to be paid for transport allowance in lieu of pick-up and drop facility with immediate effect. This decision was implemented, and the applicants continued to receive this payment till 19.06.2018.
4. Learned counsel for the applicants draws attention to page 61 at NIFT Act Section 3 para 3, wherein the Board of Governors is defined and Section 7, para 2-A wherein powers with respect to the decisions of the Board on questions of policy relating to the administration and working of the institution as vested to the Board of Governors are prescribed. He states that in exercise of these powers, the Board of Governors in the said meeting had taken a decision, in pursuance of which, the allowance was extended to the applicants on 20.10.2008. Thereafter on 28.02.2018, in pursuance of the CAG Audit at page 75, respondent no. 3 was directed to give its comments as to how the said amount has been received by the applicants. 7
Item No. 44 (C-3) M.A. No. 3470/2023
In
O.A. No. 527/2023
Accordingly, this allowance was withdrawn by the respondents, which was given effect to from 20.06.2018. Thereafter, by the order dated 17.05.2021, a decision was taken to recover the amount, which was received by the applicants as the pick and drop allowance. However, decision was implemented by Respondent No. 3 on 22.04.2022 and recovery was ordered for the first time only on 01.02.2023. Accordingly, this Original Application was filed and the applicants were protected by an interim order dated 27.02.2023 passed by a coordinate bench of the Tribunal.
5. Learned counsel for the applicants adds that the applicant placed at Sl. No.14 has since retired from service and three applicants would be retiring in the next few months. He relies upon the judgment of the Hon'ble Apex Court in the case of State of Punjab And Others v/s Rafiq Masih (White Washer) And Others in Civil Appeal No. 11527/2014. Drawing attention to the judgment of the Hon'ble Apex Court, he states that some of the applicants are covered under clause-(ii) of para 18 of the said judgment while the others are covered by clause-
(iii) of the judgment. He further relies upon the judgment 8 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 of the Hon'ble Apex Court in the case of Thomas Daniel v/s State of Kerala and Others in Civil Appeal No. 7115/2010 decided on 02.05.2022. Learned counsel for the applicant states that the respondents have withheld the said amount from the retiral dues of the applicant, who has since retired in spite of the interim protection granted by the Tribunal.
6. Learned counsel for the respondents vehemently opposes the Original Application and argues that the Board of Governors may have extended the pick-up and drop allowances to the applicants, however, the NIFT being an autonomous body under the Ministry of Textiles, the Board of Governors of NIFT were under the control of the Ministry of Textiles. The Ministry of Textiles is the nodal ministry for NIFT. He explains that all the service conditions as well as the pay and allowances are decided by the Government of India. The NIFT being an autonomous body under the Government of India has accepted to follow the terms and conditions/ service conditions/ the Government of India Rules/ pay and allowances recommended from time to time by the CPC. Additional transport allowance, over and above the 9 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 transport allowance could not be extended to the applicants. He further states that the respondents have only taken corrective steps in view of the irregularity pointed out by the CAG on intervention of the Government of India. The amount which has been recovered by the applicants is, in fact, an amount to which the applicants were not entitled to. The said amount, over and above the entitlement, has been directed to be recovered by the applicants and put back to the public exchequer. Learned counsel for the respondents states that the judgment relied upon by the learned counsel for the applicants may not come to their support as all the applicants in the instant Original Application are Group-A senior level officers barring one. They are all serving and have some years to their benefits before their retirement.
7. Heard the learned counsel for both the parties.
8. The benefits have been extended to the applicants in pursuance of a decision taken by the Board of Governors dwell within the powers vested in them by the NIFT Act. It is not in dispute that the Board of Governors were vested within these powers. They may have exceeded the same. However, the applicants have no way 10 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 contributed, to this decision. There is nothing on record to establish that the applicants have influenced the BOG in taking the decision extending these benefits to them. There is no act of commission or omission at their end. Once the irregularity, if any, was pointed out by the CAG, the same has been withdrawn. They have been in receipt of the amount by virtue of the decision taken by the Board of Governors and they have also accepted to a situation that they are not entitled to the same by virtue of the CAG Audit and decision taken by the Nodal Ministry. The issue is only with respect to the period for which they have already received the said amount. In my considered opinion, the applicants cannot be held responsible for the said act. Additionally, the recovery is for a period from 2008 to 2018, i.e. prior to 5 years, it was received by the applicants. We are guided by a judgment of the Hon'ble Apex Court in the case of State of Punjab And Others v/s Rafiq Masih (White Washer) And Others (supra). Para 18 of the said judgment is reproduced hereinbelow:-
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been 11 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 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 that following few 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.
(iii) 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.
(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."
9. In terms of clause-(iii) of para 18 as reproduced hereinabove, it is seen that the recovery of the excess amount is for the period almost five years and, therefore, the same cannot be allowed.
10. For the reasons stated hereinabove, the impugned orders dated 17.05.2021, 22.04.2022, 01.02.2023, 16.02.2023 and email dated 01.02.2023 are quashed and set aside. The Respondents shall not proceed with the 12 Item No. 44 (C-3) M.A. No. 3470/2023 In O.A. No. 527/2023 recovery, as stipulated in terms of the impugned orders. So far as Applicant No. 14, who is stated to have retired and whose retiral dues have been withheld by the respondents, the same be released to Applicant No. 14 within a period of four weeks from the date of receipt of a certified copy of this Order.
11. The OA is allowed in the aforesaid terms. Pending MAs, if any, shall stand disposed of. There shall be no order as to cost.
(Pratima K Gupta) Member (J) /aks/