Kerala High Court
Union Of India vs R. Radhakrishnan Nair on 5 December, 2016
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
OP (CAT).No. 140 of 2017 (Z)
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AGAINST THE ORDER IN OA 230/2014 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 05-12-2016
PETITIONER(S)/RESPONDENTS:
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1. UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF SHIPPING, DEPARTMENT OF SHIPPING,
TRANSPORT BHAVAN, NO.1, PARLIAMENT STREET,
NEW DELHI-110001
2. THE CHIEF ENGINEER & ADMINISTRATOR,
ANDAMAN LAKSHADWEEP HARBOUR WORKS(ALHW),
PORT BLAIR-744101, ANDAMAN AND NICOBAR ISLES
3. THE DEPUTY CHIEF ENGINEER,
ANDAMAN LAKSHADWEEP HARBOUR WORKS (ALHW),
UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555
4. THE PAY & ACCOUNTS OFFICER,
OFFICE OF THE PR. CHIEF CONTROLLER OF ACCOUNTS,
INTERNAL AUDIT WING (HQ), IDA BUILDING,
JAM NAGAR HOUSE, SHAHJAHAN ROAD, NEW DELHI-110011
BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE
RESPONDENT(S)/APPLICANT:
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R. RADHAKRISHNAN NAIR,
AGED 60 YEARS, S/O.P.RAMAKRISHNA PILLAI,
(RETD. UPPER DIVISION CLERK,
ANDAMAN LAKSHADWEEP HARBOUR WORKS, (ALHW),
KAVARATTI-682555, UNION TERRITORY OF LAKSHADWEEP,
RESIDING AT "PANCHAJANYAM", MANGARAM,
PANDALAM P.O.,PATHANAMTHITTA DISTRICT, PIN-689501
R BY SRI.T.C.GOVINDA SWAMY
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 23-05-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 140 of 2017 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE OA NO.180/00230/2014 DATED 02.04.2014
FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 25.02.2015 FILED
BY THE PETITIONERS
EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO. 180/00230/2014 DATED
5.12.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
RESPONDENT(S)' EXHIBITS
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/TRUE COPY/
P.A. TO JUDGE
P.R. RAMACHANDRA MENON & SHIRCY V., JJ
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O.P.(CAT) No. 140 of 2017
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Dated, this the 23rd day of May, 2017
JUDGMENT
Ramachandra Menon , J.
Ext. P3 verdict passed by the Tribunal repelling the stand taken by the respondent/Department by way of Annexure A1 in refixing the pay and ordering recovery is under challenge in this original petition.
2. Heard the learned Assistant Solicitor General appearing for the petitioner at length.
3. The course and events reveal that the respondent applicant was originally appointed as Store Assistant and he was later placed as LDC through direct recruitment. Admittedly, the first and second ACP benefits were given, treating him as a direct recruit in the cadre of LDC. In the course of time, the post of Store Assistant got merged with the post of LDC because of cadre restructuring. Pursuant to this, the date of granting ACP was advanced in the case of the respondent/applicant and others, also reckoning the service rendered as Store Assistant. The benefit was granted accordingly. In the course of time, this was objected by the Pay and Accounts O.P.(CAT) No. 140 of 2017 : 2 : Officer, stating that the reliance sought to be placed on the relevant O.M. was not correct and that the applicant was not entitled to have the pay fixation date advanced as effected by the Department. Hence it was sought to be rectified, also causing the alleged excess to be recovered. This lead to issuance of Annexure A1 order dated 24.12.2013 passed by the Department, which was sought to be intercepted by the Tribunal by filing O.A. raising following prayers:
"(i) Call for the records leading to the issue of A1 and quash the same;
(ii) Direct the respondents to grant all the consequential benefits as if A1 had not been issued at all, within a time frame, as may be found just and proper by this Hon'ble Tribunal;
(iii) Direct the respondents to pay interest @ 9% per annum on the recovered amount of about Rs.4,00,000/-
from the applicant's retirement gratuity, to be calculated with effect from 01.01.2014 upto the date of full and final settlement of the same;
(iv) Direct the respondents to pay interest @ 9% per annum on the delayed payment of arrears of pension and other retirement benefits to be calculated with effect from 01.01.2014 upto the date of full and final O.P.(CAT) No. 140 of 2017 : 3 : settlement of the same;
(v) Award costs of and incidental to this application.
(vi) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
4. The claim was resisted from the part of the Department referring to the sequence of events as above. After considering the same, the Tribunal held as per Ext. P3, that there was no merit in the stand taken by the Department and accordingly the impugned order [Annexure A1] was set aside and the O.A. was allowed; which made the respondent in the O.A. to approach this Court by filing the original petition.
5. The learned Assistant Solicitor General for the petitioners submits that the order passed by the Tribunal is mainly based on the verdicts passed by the Apex Court in Shyam Babu Verma Vs. Union of India [JT 1994 1 SC 574] and such other cases, including the recent one as reported in AIR 2015 SC 1267 [State of Punjab and Ors. Vs. Rafiq Masih [White Washer] holding that the alleged excess is not liable to be recovered from the applicant. The operative portion of the said order, as revealed from paragraph 10, reads as follows :
O.P.(CAT) No. 140 of 2017 : 4 :
"10. In this particular case the applicant has no role whatsoever in the decision taken by the authorities either in granting the benefit or subsequently in withdrawing the same. He cannot be accused of any misrepresentation or fraud committed at his end. In other words, he has been at the receiving end of the omnipotent respondents. After carefully evaluating all factors involved in the case, we are of the view that the applicant has merit on his side. The OA succeeds. The order dated 24.12.2013 at Annexure A1 is set aside. The respondents are directed not to proceed with any recovery from the money disbursed. In so far as the Gratuity retained by the respondents, it is directed that the amount may be released to the applicant in full alongwith interest @ 9% p.a. w.e.f. 01.04.2014 [allowing three months for computation]. Any amount recovered on this score, from the applicant should also be returned to the applicant, alongwith interest on the same rate as indicated above. The respondents shall act on this as expeditiously as possible and in any case complete the transaction within two months on receipt of copy of this order. There shall be no costs."
6. As obvious from the said verdict, a specific finding was rendered that there was merit in the submission made on behalf of the applicant that the respondents were not justified after granting O.P.(CAT) No. 140 of 2017 : 5 : the benefit based on the decision taken by the authorities, withdrawing the same. Incidentally, it is to be noted that the respondent/applicant had approached the Tribunal earlier by filing O.A. No. 450 of 2009, seeking a direction to the respondent/Department to reckon the service rendered by him as Store Assistant from 28.10.2000. When that matter came up for consideration before the Tribunal, it was brought to the notice of the Tribunal that the respondents themselves had considered the eligibility of the applicant to have the benefit for advancing the date of granting ACP based on the letter dated 26.10.2009 in accordance with O. M. No. 35034/1/97-Estt.(D) dated 9.8.1999 of the Ministry of Personnel, Public Grievances and Pension, to the employees who were initially appointed to the post of Store Assistant Gr. II and subsequently, promoted to other posts. It was accordingly, that the O.A. was closed by the Tribunal as per Annexure A5. This verdict was passed as early as on 22.02.2010. It was much later, that objection was raised by the PAO with reference to some other circular/proceedings, which led to issuance of Annexure A1. But the fact remains that the same was never brought to the notice of the Tribunal for causing Ext. P5 verdict to O.P.(CAT) No. 140 of 2017 : 6 : be corrected, modified or reviewed in any manner. So long as the earlier litigation by way of O.A. 450 of 2009 seeking for the relief was finalized in terms of the relevant orders referred to in paragraph 2 therein; unless and until the same was got corrected [if sustainable], the challenge now raised from the part of the Department is not liable to be entertained. Since no such exercise has been done, this Court finds it difficult to entertain the submissions made on behalf of the petitioners to call for interference.
Accordingly, interference is declined and the Original Petition stands dismissed.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
SHIRCY V., JUDGE kmd /True copy/ P.A. to Judge