Central Administrative Tribunal - Cuttack
N Mallick vs Aviation Research Center on 27 April, 2023
3 ;
i QA SOS of BOLT CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 405 of 2017 Present: NHon'ble Mr. Pramod Kumar, Das, Administrative Member LL. Art. San Hata Malick, aged about 66 years, W/o Late 3S. Ras years, Dyo Late Niranjan RA» ae {a Housing Baard Colony, Cha ia, District Cuttack, PIN 754028 J Th were substituted after death of Nee yplayee {original applicant) vide IA Na. 240 (2022 eo od DEH ECaNT VERSUS at x A resented through its Cabinet Secretary, , Department af Defence, New Delhi, Pin- 11000 Me "
Sy Peinel imal Secretary, Avi atlon Research Contre Headquarters, tarate, General of security, Cabinet Secretariat, East WA Puram, New Delhi-fiooss., Yirector wi Accounts, Cablnet Secretariat, Bast Block-1- C, VER BN Purar, New Del £7 feabed ce ee ae) a PO byes dan Peabo oy el x os" Altay +. reen Resting nt - h, ee eaten), Air Wing Aviation Ra as Co, At, fPO- Ch tak "bacia, Pye ke atric Cu ttack-
Ss. A ar 8 Aviation Research Centre CARY, At/POCharhatia, NetrictCuttark-?So078, corn Respondents Far the apmiicant : Me. A.Swain, coursed fe MeGk.Verma, SrStanding counsel.
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; nes %, pin, Geen, t CARES 'oO et Pramod Kumar. D z Mr 3 OA 808 of IOUT x The case has been examined by this organization, Shri Niranjan Malick, Ex-Shition Officer was granted 2s fir: ancial upgradation in the scale of Pay Rs. S000-S000 erroneously which was corrected and issued revised order granted 2° Financial upgradation in pay scale af Re d000-6000 in place of pay seale of Rs SOCSO0Q. The overpayment so recovered from retirernent grabuity/leave eancashiment is as per rule As such as per existing rules the recoveries made due to over payment cannot be refunded."
ted : Qn the other hand based an the counter stand taken in the counter learned counsel for the respondents submitted that the applicant retired from Gevt, Service on SLADSOL2, An amount af Rs. 47,055 /- was found by the Director of Accou nts (ACS) to have been paid to the applicant due te wrong fixation of pay wile granting Ananclal upgradation under ACP and the same was recovered from the retirement dues of the applicant. The applicant did not challenge the said recovery and only on LO.08.2016 be submitted a representation which was considered and rejected vide order dated 14.03.2017 (Annexure A/G}. Therefore reiterating the factual positian as to how there was wrong fization of the pay of the applicant learned counsel for the respondents subnvitted that there being no legality in the decision making process of the matter, no interference in the impugned order is called for. In eo far as applicsbility of Rafiq Masih {supra} is concerned, learned counsel for the respondent submitted that taking into consideration the law laid down by Hon'ble Apex Court, DOPT issuer] OM relating ta recavery on OQ2.03.2016 and the apmicant having My retired from service wet S1102012, the derision of Hon'ble Apex Cour and DOPT QM referred to above is of no help to the app sticant. Hence this OA having no legs to stand is Hable to be dismissed.
4 The sum and substance fn the rejeinder fled by the applicant is that there being no fault or misrepreseniats ion an the part of the applicant.
recovery on alleged wrong fixation of pay based on observation af DACS ADS ae mote ds bad in law. Hence according to the sppneant he is antitied to rele! claimed in the OA.
5. Heard both sides and pernsed the rec wards, 6 Admittedly the applicant after Introduction of ACP scheme vide DOFT OM dated 09.08.1699 was given 1S and 2et financial up-gradaiian on completion of 12 & 24 years of service, Thereafter, the respondents vide arder dated 12.05.2006 indicated that the applicant was only elig ible for one fmancial upgradation Le. the 2s wet 09.08.1999. The applicant had challenged the order dated 42.05.2006 before this Tribunal as one of the applicant In QA No. 502/ 2906 + batch cases which was disposed of vide order dated 07.05.2000. The relevant portion ef the arder is extracted helow:
teen eo be dae 'tdee tn these O.As ig whether Che em woyess cabs af Rs SSO T5005 te Rs! ee ;
at oy Ue Sh . | upgradat ia ar not fn other warks, ¥ additional ane int of Rs, 1Q0/ ficing pay in the highs Bs LSC 1500 f+ can be considers ed as an upgradation and it js canaidered 3 O4 305 af SE?
as an ureradation whether they are ert ited to ist Hmancial upgradation as arises in these O.As per the ACP Schemm or not. Further, the | rey the applic ants who have already eal frenr service are atitied ta have thelr persian revissel at the i vis of the wo financial apgradatl ans already received by them y whether the amruot sived in excess is recoverable or net, as the 'Repartmner ne allowed the splicants re have two benefits under the ACF Scheme as per order datert JB 2O00T Anmexure-A se & Admitteddy, as per the Recruitment wees vari aS oes in hse Drepartrent bn lading te that of Assistant Fire ON Gp Superviser have & treated separately ane at different pay scales with dilferent moles sar the Recruftment Rules, the r by promotion or on deputet "thee qualficatians, both educ "al, as presen Hes. As per Rules, the incon bens ® equal im rank of Fire tral fovermment! State Goverment i p fee TENT TOUT & fee eategery and on the case of Nve years experiage in he prade & me Supery sar, the Fire Oneraters with driving license automobile s repair and having qualified in a refresher course is considered as the feeder category. Even though these posts are caming under Greup © classification, thir pay scales were alse coffer vent and these we have already considered and the Department pring to implementation of the recommendations of the Se CPC had given a financial uperadation to the post ef Fire Qperaters by giving au addition af Rg. 100+ se as to fix their pay ander PR 227 fai}. Hence, those who had cor yeted 12 years and got stagnation in that past have to get a financial upgradation. lf sa, whatever stated in the order dated 5.2000 that the pay of thase wha have got such Suamctal i uparatation oF Rs, oe is + fixed tnd wr 8 Be a2 Ot Ge ran! Anding vmplenn mentation of the "ACE scheme, RR rh a3 saployees who ha AVE gat su cts & promotion rather financial upgradation are not entitled for both the Anancial upgradations om the ground thet they have already received une F o oe ~ promntion. in the above circumstances, it is iy be held that the employees y efsim both the Ananeial cs sd pramotion who have already reed ¥ oeradations an the basis of the order dated G.8.2000, In Tus ceartext, if is wertinent tegeote hereunder the pat of doubt and clarification thereof : st SLNo. SS ag stioulared in OM. No. 38054 N97 Srey (Vol ivy dated fhe above clarification an the point of doubt cleariy indi N cates that even ia restructuring EASE, the feeder and promotional pas tS having merged to zt canstituie a single fevel in the Merarchy, the oext Asancial upgradation would he give en in the pe archical cadre abuse the merged levels and 4 any promotion has been alluwed int the past in grades which stand merged, FEN will have ta be jonored as already clarified in reply te pomt af doubt Nak of OM. dated 102.2000. It meany thet in case of merger af bwa scales inte ~ £ ape s & TIA AGS CHIE SCE BE should be & en up mand chi Rave the cadres reviewed present scenario, keeping in view e 8 unda thee pravis sors oF me oat Ha :
Rs, 100,'- as sitp an. Riergrciical basis ton of the Department to
-atian fisyt ther indicates that in the ing hierarchy the pay shall be fised subject fo a avinimium benefit of 4 ES GEES re gulated in canditien Nan 3 af ACP Scbeme(vide Doral', GM, dated 10.2. 2000. Nence. this 6 tr ihuial | he view that the actions by the Department as per the arder dat ed VE SS006 is pustifieble and the Department have got @ right to raview the evtive matter afresh and re- He the pay available te cach of the applic: AS. having regard fo the fact they have already got promotion as Fire
10. barned eyareel Shrt BS. Feipatie brought to sat this reine order of» To. Ge ae % Gaw Ren sh RAS s O \ ee Pht 3 ned of the viokuicn af the fapugeed does not salfer seiiels ae fatoral vsti ree :
ustic eas sthe nae ment tthereby from violating of the princi ples has taken the step ta rovigw The principles af natural pustice gat the t penyenits. | sy vireug a the ne purported | MD) dated OS. 99 and subsequent On FRCeINE of eh yifleation fray "BePar he Rete vad Hee Ae ek arroncously ee ; ant ned te ffs Pro WEL they had xe PANTER fro CAT Bre , Oper ' Supervisor fron scale af RS9 pe ant int that oven SO-15n0?
R 22(n(ay) their pay was fred ander { rmininiam benelit af Rs.
Reapermients De spartmient hy :
see no ground te intervers tht that action. He ey the Apex Court that once 3 fascial | r grant ee hy cur eee sn te HES at ve 'oper be Fors he apse at Ne rend ar or copesed fr from th 1 mariple) :
wmelal burden, we are of the view that PECOVELY. of ATAU nt mn excess, vt any, alrealy received by any of the applicants on the basis of the ard PRs 2000 should mar heeflected, but-the othe beneliis can be fix ced and/ or rdetermined only an the basis of the -- ohservatinns-contained In {ins a erder on rhe pr cinely oles bai 8 td. The fur are not entide :
the basis of the order dated BSZ : yoke ING by the Department an the basis of the findings entered by this Tyibonal, F any retired ayiplicant £8 entitle sd fo any pomnie ar any adh ustnent of his pevsionary bereits, 90 Sh: 2 Wm a reasonable Une, at ary rate, within three months receipt of this arder, Un rhe ae merger of pas ;
SE oh x, pet.
2 & S aN BS y sede of bath fie 2 Operators atl Fire Supervisors, 2 Gnd that once the De parkrnen chem ay the matter Ws with the Finance Derarinrent recommen ang revision of yxy of Fire Supervisers to ee 5 of EY 3 og, vy ee a Sd Ne 4% pe) ony, Siag3 wy pe ard Rs awry, Having regard rm ihe Fatality of the | acts & and : areurastan s af the case, the point af Denke aye clarification ni theceot {ibid} rarmot be » brushed aside. Th reo nN nn ;
ASS af _ things see wend observe that though the actian af the « ta be iy consonance with the clarification - against : Nos OM, dated 10.2.2000, yet the Responeents have ot ed ar made any averment that eo was ine scapable te stairs Gat feeder and preamatinnal grades as two Cistinet ie eyeis in the rvherarchy oe scaie of pay, thereby 1 x for allowing pramotion fo a higher pe yet ia the same pay scale, the matter, we direc + the Respemdant-Department to review ¢ Bre Operator ai val Bre Supervisar and coroplet oth iS yl days fram today and that the applicants shal Re g governed by e of such review, In the event of fab co resviesy tf he said cadre » and to COTpHENe | th: fobs sti Hpalated above, she hall be Hixen an the all one arad direction, all the Origired Ap plications e@ parties to bear their respective egets."
The applicant then challenged the said order of this Tribunal by filing WP (C) No. 12499/2009 and Hon'ble High Court vide order dated 24.08.2013 disposed of the said writ peridion with following abservatians:"
a After hearing the parties and analysing Ue questians raised, uldimately the learned Tribunal directed the Respondent-Repartm ont to review the cadre structure « af both Fire Gperator and Fire Supervisar and complete the pracess within a period af SO (ninety) days fram the date of order and that the apglivants shall be governed by the outrome of such review. [n the event of falure by rOveay the said calre stracture and to complete the same within the peri stipulated above, the Habiity : shall be fs edo ony the err MB officers in that behalf Leamed counsel for the petitioner sulynits that an at tempt is being made to ssrover certain arnount from the petitioner alleging ckeess pay sent, Since she learnt Trifamal has already directed to review the matter with regard to the cadre structure amd the review has not get been mate, we direct that Hii finalization of the process by the revving seuthoriny, if any recesrery 38 praposed to be made from the pet Htioner, the same shall remain stayed which 4 be governed by the order te be passed by the reviewing state rosed ot.
"y 7 'The respondents in compliance of order af this Tribunal, bad carried yat the restructuring vide orders dated (411.2010 dated 31. VS2010 and te OA 465 af Ss Fe consequential order was issued vide notilication lated 14.06.2011 which was duly communicated to all units and concerned individuals. Subsequent to restructuring order dated F142. 2010 it was directed that Nie post af Fire Supervisor In the grade pay of Rs 1900/- in PR 1 ts upgraded to the Grade Pay of Rs. 2000/- In PR-1 and renamed as Leading Fireman. [eis the stand of the applicant that the said order was not commmunic rated fo him and therefore the respondents could net have effected recovery. It Is seen that the said order was jgsued and contents of the said order was ordered te be brought to the notice of all concerned individuals. The applicant who was in service at that time, could not have taken the stand that there Is no separate communication to him. Therefore, we are not in agreement with the stand taken by the learned counsel for the applicant that the apalicant was prejudiced because of non communication of the sald order te him, @ Se far as recovery is concerned, it is wurthwihile te quote the relevant partion of the decision of the Hon'ble Apes Court in the case of State of Punjab & Others vs Rafiq Masih (White Washer) & others, 2015 (4) SCC 834 swhich reads as under:
"12 Tris not possible ta postulate all situations of hardship, which would govern employees on the Issue of recovery, where payments have mistukenly been made by the employer, in excess of their entidement. Be that as ib aay, based Or the decisions S referred to '0 here! Q neti we may, as #3 ~~ any 3 CHA GS of SEE?
wherein recoveries by the employers, would be Inip erm issible In law:
{i} Recovery fram employees belonging to Class-llf and Class-IV service for Group 'C and Group 'D' service}.
{ii} Recovery from retired employees, or employees whe are due to retire within one year, of the order of recovery.
{if} Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issned.
(iv} Recovery in cases where an employee has wronghully been required to discharge duties of a higher post, and has been paid accordingly, even though he sheuld have rightlully bee nN required to work against an inferior past."
On the basis of the aforesaid judgment, the DoP&T had issued the Office Memorandum No. 18/03/2015-Rett. (Pay-l) dated 02.03.2016 providing therein as under:
"4, The Hon'ble Supreme Court while observing that it is net 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 af thelr entidiement has sa unmart ved the following few sihuations, wherein recoveries by the employers would be impermissihie in iow:
G) Recovery from employees belonging to Class-
Ui and Class-T¥ service for Groun 'C' and Grotp 'DY' service}, 10 OA 205 af 2017 Gi} Recavery from retired employees, or employees who are due te retire within ane year, of the order af recovery.
UW) Recovery from employees, when The Excess payment has been made for 8 period in excess of : vs, Before the order of recovery 15 issued.
fv) Recovery in cases where an employee has wrongfully been required to dischar e duties of a higher post, and has heen paid accordingly, even though he should have rightfully been required to work against an infe for LOR Seren:
{vy} In any other case, where the Court arrives af the conclusion, that recovery if made from the empluyes, would be bAquitous of harsh or ariitrary te such an extent, as would far outweigh the cquitable balance of the enyployer's right to recover.
& The matter has, consequently, been examined it eonsultation with the Department of Expenditure and the Department of Legal Affairs The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made tp Government servants in accordance with above decision of the Hon'ble Supreme Court in CAN ol 182? of 2014 {arising out of SLE (C) Noth aad of 2012) in State of Punjab and others etc vs Rafiq Masih (White Washer) etc Hawever, wherever the waiver of recovery In the above- mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure terms of this Department's OM No 18/26/20 Pi-Estt (Pay-1} dated 6th February, 2014"
The applicant helones ta Grou C, the recovery is squght ta be rade a3 SS & Fe x for the excess AIMEE 33 deto him a grant 2 f ACP in the year TG99 which : . ~ oa is in excess of Ave years period and the applicant has retired In the th CA 408 ah POL?
meantime. Thas the sub clause (4), (if and (HD of para 12 of Hon'ble Apex Court in Rafiq Masth (supra} and sub clause (1), GO of para 4 af the DOPT meme is applicable to the applicant.
a, in the instant case, admittedly, the applicant was granted the 26 fnancial uperadstion under ACP vide order dated O8.08.2000 wet 09.09.1999 from Rs. 4000-5000/- to Rs. S000-S000/-. The fixation of pay under 288 ACP was found te be erroneous and, accordingly, the pay af the applicant was refixed and the differential ammount of excess payment made was recovered frarn the retirement dues of the applicant, wha retired from the government service on reaching the age of superannuation wel 3L10.2012. The applicant did not challenge the refixation of his pay and consequential fixation af pension, His grievance Is that since erroneous fixation of pay and payment, recovery of the differential smount for such erroneous fixation of pay made long back from his retirement dues caused hin great financial hardship and, therefore, the recovery belng opposed to the how laid down by the Hon'ble Apex Court in the Rafig Masih and DoPaT OM {supra}. The contention of the Ld Counsel for the respundents is that the DoPA'T issued the OM in pursuance of the decisions in the case of Rafiq Masih on 02.03.2016 whereas the applicant retired from service on 31.10.2012, thus, according te him, the Dop&T circular having no retrospective effect has no application in the present case. This was a OA S08 of MN?
countered by the Ld. Counsel for the applicant by steting that the decision rendered in the case of Rafiq Masih has to be applied in the present case as the applicant belongs to Group 'C' employes, the excess payment relates t) Ave years before when the recovery wes sought to be made from the applicant and, that, the applicant was in ne way responsible far such excess payment This apart, i has been contended that even though DoPST circular does not specifically state that ft has retrospective implamentadon, itis presumed to have retrospective application as the sume was issued In pursuance of the decision of the Hon'ble Apex Court rendered in Ralig Masih on 1S-L2.2004. Further, if woss contended that delay in issuance of the cireular by the DoP&T cannot wash out the decision rendered by the Hor'ble Apex Court in Rafiq Masih berause the said decision was in judgment fn rem and the law declared by the Supreme Court shall be binding on all courts within the territory af India as per the mandate enshrined wnder Article 141, Constitution of fadia. Therefore, the recovery ty gam the retirement dues for an erreneous PAyMENt made to the applicant due to wrong fixation of pay under ACP gr anted to him vide order dated N8.08.2000 (A/T) is bound te bet veld egal and arbitrary. | find sufficient farce an the submission of the Ld Counsel for the applicant that If the HaPST cireular issued subsequent to, the decision of the Hon'hie Apex eae Conrt direction for dealing with issue af wrany afal encess payiTients made to Government servants in accordance with above decision of the Hon'ble Amex Court Hence a delay in issuance of such circular cannot wipe cat when the Hon'ble Apex Court have specifically held the conditions under which recoveries would be impermissible, More so, when the DoPeT circular was issued bs pursuance of the said decision even Hin the circular it has not been specifically stated that the same has no retrospective sonlication, the said circular is bound to be made applicable in the instant case In view of the above discussion ard the arguments advanced ta the above effect by the learned Counsel for the Resparlent is bound tu be averruled and is hereby overruled. Resultantly, the recovery af Rs. 47,055 /- from the retirement dues towards the differential amount drawn due te erraneaus fixation of 2° MACP granted to the applicant long hack is held to be net sustainable and by applying the law laid down by the Hon'ble Apex Court in the case of Rafiq Masih (supra}, the impugned order dated LEOS.2017 (Annx A/S) is hereby quashed and the Respondents are thrected to refund the same amount of Rs. 47,055 /- to the Applicant within a period of 30 (thirpy) days from the date af receipt ofa copy of this arder.
12. Inthe result, this OA stands allowed to the extent stated above. Phere shall be no aeder as ta costs, [PRAMOD KUMAR DAS) MEMBER (A) 48 OA 405 af 2017