Central Administrative Tribunal - Delhi
Dr Shashi Vashist vs M/O Health And Family Welfare on 1 October, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.3885 of 2016
This the 1st day of October, 2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Dr. Shashi Vashisht
W/o Dr. G.P. Vashisht,
r/o B-254, 2nd Floor, Chittaranjan Park,
New Delhi-110019.
....Applicant
(By Advocate : Shri Gaurang Vardhan)
VERSUS
1. Union of India & Ors.
Ministry of Health and Family Welfare,
Room No.156-A, Nirman Bhawan,
New Delhi.
2. The Additional Secretary & Director General,
Ministry of Health and Family Welfare,
Room No.244, 2nd Floor, „A‟ Wing,
Nirman Bhawan, New Delhi.
3. The Controller General of Accounts,
Pay and Accounts Office,
Ministry of Health and Family Welfare,
New Rajinder Nagar,
Shankar Road, New Delhi.
.....Respondents
(By Advocate : Shri Vidya Sagar for Shri H.K. Gangwani)
O R D E R (Oral)
By filing this OA under Section 19 of the Administrative Tribunal Act, 1985, applicant is seeking the following reliefs:-
"8.1 set aside the order dated 10th August, 2016, passed by the Respondent No. 3 i.e. PAO, CGHS, unlawfully withholding part of the gratuity amount of the Applicant amounting to Rs.5,19,139/-, this being violative of the law laid down by the Hon‟ble Supreme Court of India.
8.2 direct Respondent No. 3 to remit the balance amount of gratuity aforesaid to the Applicant‟s account along 2 with interest thereon till the date of judgment of this Hon‟ble Tribunal; and 8.3 provide any other relief which this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. Brief facts of the case are that applicant appointed as a Specialist in Ophthalmology in Central Health Scheme (CHS). In December 2009, the applicant was appointed as a Consultant in the Eye Department of Dr. Ram Manohar Lohia Hospital, New Delhi and started drawing Grade Pay of Rs.10,000/- per month and Transport Allowance of Rs.7,000/- per month. 2.1 The applicant retired from service on 31.8.2015. 2.2 on 6.11.2015, Director General of Audit (Central Expenditure) issued a letter to the Health Secretary, Government of India, mentioning therein that the Doctors in the Senior Administrative Grade (SAG) were drawing Transport Allowance @ Rs.7,000/- whereas they, in fact, were entitled to Transport Allowance @ Rs.3200/- per month in terms of OM issued by the Ministry of Finance in this regard.
2.3 Applicant wrote a letter dated 10.3.2016 to the Additional Secretary & Director General, CGHS for payment of the gratuity. 2.4 Applicant averred that Department of Personnel and Training issued an OM dated 2.3.2016 relying on the law/guidelines laid down by the Hon‟ble Supreme Court of India in the matter of State of Punjab and others vs. Rafiq Masih and others declaring impermissible recovery from certain categories of 3 Government employees, including the retired Government employees.
2.5 In July, 2016, the applicant once again wrote to the Additional Secretary & Director General, CGHS by bringing to his notice the law/guidelines issued by the Supreme Court of India. 2.6 However, vide impugned letter dated 10.8.2016, the Pay and Accounts Office, CGHS, Ministry of Health and Family Welfare made payment of R.4,80,861/- and withholding the balance amount of Rs.5,19,139/- informing the applicant that the latter amount had been deducted on account of alleged over payment of Transport Allowance.
2.7 Being aggrieved by the said letter, the applicant has filed this OA seeking the reliefs as quoted above.
3. Pursuant to notice issued to the respondents, they have filed their reply in which it is stated that applicant is aggrieved by recovery of Rs.5,19,139/- from her Death-cum-Retirement Gratuity (DCRG) as the amount of Transport Allowance paid to her while she was in service.
3.1 The applicant while in service was a Group-A Officer of the CHS. She and other medical officers of the CHS paid Transport Allowance on the assumption that they being officers of the level of SAG were entitled to Transport Allowance but later on, Ministry of Finance, Department of Expenditure, vide its UO Note bearing No.21(2)/2014-E.III (B), read with para 7.1 of Report No. 18 of 2015 of the Comptroller & Auditor-General of India (CAG), pointed 4 out that medical officers like the applicant were not entitled to Transport Allowance.
3.2 When a bill of Rs.10,00,000/- towards payment of residual gratuity to the applicant was sent to the Pay & Accounts Office, they retrenched the overpaid amount of Transport Allowance and made payment of balance amount of Rs.4,80,861/- and when the matter was taken up with the Pay & Accounts Office, they took the stand that in terms of Rule 61(2) of the Central Government (Receipt and Payment) Rules, they have authority to recovery the amount wrongly paid to a Government servant.
3.3 They further submitted that CAG is a constitutional body, having authority under Articles 148 and 149 of the Constitution of India read with Comptroller and Audit-General‟s (Duties, Powers and Conditions of Service) Act, 1971, to audit accounts of the Central Government as well as of State Governments. The Audit Reports on Central Government accounts was submitted to the Public Accounts Committee of the Parliament. Once excess or wrong payment is pointed out by the CAG, the Ministries, Departments and Offices of the Central Government have no option but to make recovery.
3.4 The position as it stands today is that the applicant and other similarly situated medical officers of the CHS are not entitled to Transport Allowance, and the amount paid wrongly is recovered from them, including the applicant.
53.5 Lastly, they stated that instant OA deserves to be dismissed by this Tribunal.
4. In the rejoinder filed by the applicant, she reiterated the averments made in the OA and also placed reliance on the said judgment of the Apex Court in the case of Rafiq Masih (supra) and further stated that applicant ought to have been paid her full gratuity of Rs.10,00,000/- immediately on her retirement, i.e., on 31.8.2015. However, this did not happen for almost one year and as such the same patently adds to the iniquitous nature of the aforesaid illegal recovery.
4.1 Applicant refuted the action of the respondents which is based on the CAG report on the strength of said judgment of the Apex Court in the case of Rafiq Masih (supra) and guidelines issued by the DOP&T vide OM dated 2.3.2016, clearly stated that recovery from retired Government employees is impermissible in law.
5. During the course of hearing both the counsels reiterated their stands as averred in the respective pleadings.
6. It is admitted fact that in terms of the report No.18/2015 of the Comptroller and Auditor General of India for the year ended March 2014 with regard to CGHS in para 7.1, which relates to Over payment of Transport Allowance and alleged recovery was made due to overpayment of the same, as the Doctors of Central Government Health Scheme (CGHS in the Supertime Administrative Grade (SAG) scale were incorrectly being paid 6 Transport Allowance at the rate of Rs.7000/- per month at par with the officers at the level of Joint Secretaries of the Central Government Departments. However, they are entitled to transport allowance of Rs.3200/- per month only in terms of the Office Memorandums issued by the Ministry of Finance. The incorrect application of rules by the CGHS led to overpayment of Transport Allowance of Rs.5.74 crore to the Doctors between November 2008 to March 2014.
6.1 It is further stated that the Ministry of Finance, Department of Expenditure through its Office Memorandum (OM) Prescribed (August 2008) the rates of Transport Allowance on the basis of recommendations given by the Sixth Pay Commission. According to this, rate of transport allowance to employees drawing grade pay of Rs.5400 and above was fixed as Rs.3200 plus Dearness Allowance (DA) thereon. Further as per para 3 of the OM, officers drawing grade pay of Rs.10,000 & 12,000 and those in the Higher Administrative Grade + scale who are entitled to the use of official car in terms OM of January 1994 shall be given the option to avail themselves of existing facility or to draw the transport allowance at the rate of Rs.7,000 per month plus dearness allowance thereon. Further as per Government of India Decision No.2 below Rule 8 of Staff Car Rules, officers of the level of Joint Secretary and above, who have been provided with the facility of staff car for commuting between office and residence on prescribed payment basis under the Ministry‟s aforesaid OM of 1994 may be given an option either to avail themselves of the existing facility or to switch over to the 7 payment of transport allowance, as admissible under these rules. Test check of records of doctors of Central Health Service (CHS) of various zones of Central Government Health Scheme (CGHS), drawing grade pay of Rs.10,000, for the period 2008-09 to 2013- 14, revealed that transport allowance @ Rs.7,000/- per month plus dearness allowance thereon was being paid to them. During November 2008 to March 2014 the Doctors had been paid transport allowance aggregating to Rs.10.58 crore at these rates. Audit observed that since they were not equal to the level of Joint Secretary to the Government of India and were not entitled for the staff car facility and as such were entitled to payment of transport allowance at the rate of Rs.3200 (plus DA) only. The incorrect interpretation of rules by the CGHS lead to excess payment of Rs.5.74 crore to the Doctors as detailed in the Annex-IX. On being pointed out by audit, the Ministry of Health & Family Welfare forwarded (August 2014) the case to Ministry of Finance for clarification. The Ministry of Finance clarified (December 2014) that doctors of CGHS were not eligible for drawal of transport allowance at the rate of Rs.7,000 per month in terms of aforesaid OM, even though they may be drawing pay with Grade Pay of Rs.10,000 per month.
6.2 This establishes the audit observation. It is recommended that the overpayment of transport allowance Rs.5.74 crore made to the Doctors may be recovered.
7. It is further relevant to note the contents of the impugned order dated 10.8.2016 which reads as under:-
8
"Please referred to your note vide F.No.50-1/2009- 10/C&A/CGHS dated 05/08/2016 regarding payment of DCRG Bill in respect of Dr. Shashi Vashistha, Ex-Consultant retired on 31/08/2016 regarding payment of DCRG vide file No. 1760 dated 21/08/2015 to DDO CGHS HQ with the remarks that "the Recovery of excess paid transport allowance may be done as per para No.7.1 Report No.18 of 2015 of C&AG placed in parliament during July 2015." but DDO CGHS HQ had submitted DCRG Bill vide Bill No. NP/CGHS/C&A/495/08/2015 without recovery of overpaid transport allowance, the bill in original was returned on 03/09/2015 with the same remarks i.e. "Excess TPT may be recovered from the Gratuity.
Inspite of repeated instructions/remarks issued by this office, DDO, CGHS (HQ) has not made recovery of excess payment. After lapse of approximately One year, the DDO CGHS (HQ) had resubmitted the DCRG Bill in respect of above retiree vide Bill No. 240 of 08/2016 without making the recovery of overpaid transport allowance with note vide F.No.50-1/2009-10/C&A/CGHS dated 05/08/2016 along with Prime Minister Office Note dated 01/08/2016.
This office has finalized the said DCRG Bill after retrenchment of overpaid transport allowance amounting to Rs.519139/- and remaining admissible DCRG amounting to Rs.4,80,861/- released to retiree on 09/08/2016."
From the above, it is clear that the said recovery had been made due to the observations of the CAG in its report No.18/2015.
8. So far as the contention of the applicant that the said recovery is not permissible in view of the judgment of the Apex Court in Rafiq Masih (supra) and DoP&T‟s OM dated 2.3.2016 is concerned, in the said judgment the Apex Court held as follows:-
"12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service). 9
(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."
However, the aforesaid clauses are not relevant in the facts and circumstances of the present case, as the recovery which has been done from the DCRG of the applicant is based on the report of CAG, which is mandatory in nature and the said recovery is not made only from the applicant but also from other similarly situated doctors and as such there is no discrimination and arbitrariness in the action of the respondents. Further as per the provisions of Rule 70 of the CCS (Pension) Rules, 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 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 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.
(2) For the purpose of sub-rule (1), the retired Government servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess 10 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 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."
9. In the case of High Court of Punjab and Haryana and others vs. Jagdev Singh in Civil Appeal No.3500/2006 decided on 29.7.2016, the Hon‟ble Apex Court held as follows:-
"9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334, this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:
"(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." (emphasis supplied).11
11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.
13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
10. From the above amply clear that in view of the judgment of the Hon‟ble Supreme Court in the case of Jagdiv Singh (Supra), the said recovery is permissible and hence, the grounds taken by the applicant have no force in law.
11. In view of the above and for the foregoing reasons, the present is liable to be dismissed and the same is accordingly dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/