Central Administrative Tribunal - Delhi
Vijay Goyal vs Gnctd on 5 February, 2024
1
Court No. 5(Item No.38) (OA No.2360 /2021)
Central Administrative Tribunal
Principal Bench
OA No. 2360/2021
Reserved on:18.012024
Pronounced on : 05.02.2024
Hon'ble Dr.Chhabilendra Roul, Member (A)
Vijay Goyal (age about 49 years)
W/o Sh. Parmod Kumar Singla
R/o A-13, Street No. 22
Mahaendra park, Adarsh Nagar, Delhi-110033
.. Applicant
(Through Advocate:Mr.Ashutosh Kumar Pandey)
Versus
1. State of NCT of Delhi
Through The Secretary
Finance Department
Human Resource Division (Service Matter Unit)
4th Level, A Wing, Delhi Secretariat,
IP Estate New Delhi-110002
2. The Deputy Controller of Accounts (DCA)
Room No. 12, old Secretariat,
Near Vidhan Sabha, Civil Lines,
New Delhi, Delhi 110054
3. The DDE (NW-A)
BL Block Shalimar Bagh
Delhi 110088
4. The HOS/Vice Principal
GGSSS, Adarsh Nagar,
Delhi-110033
-Respondents.
(Through Advocate: Mr.Anuj Kr. Sharma)
2
Court No. 5(Item No.38) (OA No.2360 /2021)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicant, seeking the following:-
"(a) Issue an appropriate order or direction, directing the Respondents to set aside the recovery order bearing Ref; No. GSSS/AN/2021/501 dated 06.10.2021 issued by the HOS i.e. Respondents No.4 herein against the Applicant; and
(b) Consequently, direct the respondents to allow the applicant to revise her option to opt.
7th CPC from 01.01.2016 to 01.07.2016 i.e. from January to July ; and ( c) Pass any /or further order(s) as this Hon'ble Court may deem fit and proper in the interest of justice.
2. The factual matrix of the case is as follows:
2.1 The present applicant joined initially as a primary teacher in Municipal Corporation of Delhi on 7.1.1997.
During her service period, the applicant earned 1st MACP on 1.9.2008; got promoted as TGT on 29.4.2010; and earned second MACP on 7.1.2017.
2.2. The Audit party vide their Audit Memo dated 18.3.2020 pointed out that the pay of the applicant while calculating certain increments was wrongly calculated on 01.07.2006. The Audit Memo was given 3 Court No. 5(Item No.38) (OA No.2360 /2021) to the applicant too, and he represented against the findings of the Audit Party. However, the respondents vide communication dated 06.10.2021 (impugned order) intimated the applicant that recovery of Rs1.63.497/- (excess payment from 1.1.2006 to 30.8.2921) will be made for a period of 18 months (Rs.9084/ - per month) and his Pay is re-fixed at a lower level. The details of re-fixation of the pay is contained in letter dated 06.10.2021 from the School, the same are reproduced here as under:-
"Govt. Girls Sr.Sec.
School Adarsh Nagar, Delhi-33
Ref.No.502-505 Dated 06-10-2021
REVISED PAY FIXATION
Revised pay fixation in R/o Smt. VIJAY GOYAL TGT Natural Science EMP. ID 20101049 as per Audit Memo No - 06 Dt. 18.03.2020 raised by Inspecting Audit Officer,Audit party No. XIl
1. Pay as On 01-01-2006 in the grade pay 10470+4200=14670 4200
2. Pay as On 01-07-2006 in the grade pay 10910+4200=15110 4200
3. Pay as On 01-07-2007. in the grade pay 11370+4200-15570 4200
4. Pay as On 01-07-2008 in the grade pay 11840+4200-16040 4200
5. Pay as On 01-09-2008 (DUE TO GRANT of 12330+4600-16930 1s MACP in the pay band 9300-34800 GP 4600 w.e.f 01.09.2008
6. Pay as On 01-07-2009 in the grade pay 12840+4600=17440 4600
7. Pay as On 29-04-2010 in the grade pay 12840+4600=17440 4600 Promoted to the post of TGT Natural Science No change in Pay as already granted 1 MACP
8. Pay as On 01-07-2010 in the grade pay 13370+4600-17970 4600
9. Pay as On 01-7-2011 in the grade pay 13910+4600=18510 4600
10. Pay as On 01-07-2012 in the grade pay 14470+4600=19070 4600 [[[[[[[[[[ 4 Court No. 5(Item No.38) (OA No.2360 /2021)
11. Pay as On 01-07-2013 in the grade pay 15050+4600=19650 4600 12 Pay as On 01-07-2014 in the grade pay 15640+4600=20240 4600 13 Pay as On 01-07-2015 in the grade pay 16250+4600-20850 4600 14 Pay as On 01-01-2016 PAY level-7 Cell-7 53600 15 Pay as On 01-07-2016 PAY level-7 Cell-8 55200 16 Pay as On 07-01-2017Due to Grant of 2nd 55200 MACP and her option to fix her salary on the next date of increment.
17 Pay as On 01-07-2017 PAY level-8 Cell-8 58600 18 Pay as On 01-07-2018 PAYlevel-8 Cell-9 60400 19 Pay as On 01-07-2019 PAY level-8 Cell-10 62200 20 Pay as On 01-07-2020 PAY level-8 Cell-11 64100 21 Pay as On 01-07-2021 PAY level-8 Cell-12 66000"
2.3 Being aggrieved by the said refixation and recovery order, the applicant represented to the Head of the School vide his representation dated 15.9.2021, which was rejected by the respondents on 6.10.2021 (impugned order). Being aggrieved, the applicant has filed the present OA seeking the aforementioned relief.
3. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed rejoinder to the same.
4. The learned counsel for the applicant, referring to the grounds taken by the applicant in the OA, states that the recovery as ordered by the respondents is impermissible by law. The applicant has not furnished any wrong information based on which, her pay was initially fixed by the respondents with effect from 5 Court No. 5(Item No.38) (OA No.2360 /2021) 1.1.2006. She has, from time to time, has diligently exercised her option in favor of the new pay scales recommended by various pay commissions. The applicant is no way connived with the concerned authorities for fixation of her pay in a particular manner, nor has she committed any fraud in that respect. The entire fixation and re-fixation is by the concerned authorities amongst the respondents. Under such circumstances, ordering recovery for alleged excess payment which started with effect from 1/1/2006, for a retrospective period is contrary to settled law position in this regard.
4.1 In support of his averments, the learned counsel for the applicants cites the Judgment of the Apex court in State of Punjab and Anr Vs Rafiq Masih (Whitewasher). He refers to Paragraph 12 of the of the said judgment which reads 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, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:6
Court No. 5(Item No.38) (OA No.2360 /2021)
(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.
4.2 The learned counsel for the applicant avers that particularly clause (iii) of the said Paragraph of the Rafiq Masih case is attracted in the instant case. The Recovery order is dated 6.10.2021 and the recovery pertains to a period commencing from 1.1.2006 and ending on 30.8.2021. Hence, the recovery pertains to a period which is more than 5 years prior to the date of recovery. Hence, as per Clause (iii), Paragraph 1 &2 of Rafiq Masih judgment the recovery as ordered by the respondents is impermissible by the law. 7 Court No. 5(Item No.38) (OA No.2360 /2021) 4.3 Neither the applicant in her OA nor by her counsel during arguments has tendered any ground or legal position in support of the second relief namely allowing the applicant to revise her option to opt 7th CPC from 1.1.2016 to 1.7.2017.
5. Per contra the learned counsel for the respondents drew attention of the Tribunal to the counter affidavit filed by the Respondents in response to the OA. He states that the Audit party has rightly pointed out the mistake in pay fixation of the applicant with effect from 1.1.2006.The applicant has failed any anomaly or deficiency in the audit memo dated 18.3.2020. The respondents have the right to recover any wrong or excess payment made to the applicant. In support of his averment, the learned counsel cites the Judgment of the Apex court in Chandi Parsad Uniyal Vs. State of Uttrakhand & Ors., Civil Appeal No. 5899/2012 decided on 17.08.2012. wherein the right of the government to recover wrong or excess payment has been squarely established. In this case, the Apex court held that:
"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which 8 Court No. 5(Item No.38) (OA No.2360 /2021) belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."
5.1 Regarding the second relief, the learned counsel for the respondents draws attention of the Tribunal to the OM dated 12.12.2018 issued by Department of Expenditure, Ministry of Finance, Government of India, wherein it has been stated that opportunity for revision of option to revise pay structure was to be exercised within three months of the date of said notification. Hence, the opportunity to re-exercise the option in respect of the present applicant has already lapsed. 9 Court No. 5(Item No.38) (OA No.2360 /2021)
6. I have heard the averments by both the counsels carefully and perused the records of the case thoroughly.
6.1 The matter regarding recovery for wrongful payments to an employee during service period and after superannuation has been succinctly discussed Ors by the Apex Court in its judgment in State of Punjab and Ors vs Rafiq Masish (White Washer) , (2015) 4 SCC Decided on 18.12.2014. This judgment derived its basis from the Directive Principles of the Constitution of India enshrined in Articles 38,39, 39-A,43,46. A holistic essence of these Articles mandates the state to ensure adequate means of livelihood , and by providing for adequate wages so as to ensure appropriate standards of living to the citizens of this country. This extends to the employees, serving or retired, of the state. Hence, any action by the state, as an employer, ordering recovery from an employee would be sustainable as long as it is not rendered iniquitous to extent that action of recovery would be more unfair, 10 Court No. 5(Item No.38) (OA No.2360 /2021) wrongful, improper, unwarranted than corresponding right of employer to recover.
6.2 The Apex court has in the Rafiq Masih (supra) case, has not prohibited recovery of such undue benefits from an employee who was accessory to mistake committed by employer, or was guilty of furnishing any factually incorrect information, or fraud or misinterpretation. 6.3 With the above contextual background, the Apex court has laid down specific instances/circumstances when recovery from the employee would be impermissible. Paragraph 18 of the Rafiq Masih judgment states:
"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 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).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.11
Court No. 5(Item No.38) (OA No.2360 /2021)
(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."
6.4 The principles set in the Rafiq Masih( Supra) case has been reiterated by the Apex court in the Thomas Daniel Vs Sate of Karala and Ors 2022 SCC Online SC 436 in Civil Appeal No. 7115 of 2010 decided on 2nd May 2022. Citing the Rafiq Masih judgment , the Apex court held :
"(14) Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.
(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified."12
Court No. 5(Item No.38) (OA No.2360 /2021) 6.5 In view of the aforementioned judgments by the Apex Court, it is now settled law that recoveries from the employees for wrongful or irregular payments shall be tested against the principle set in the Rafiq Masi( supra) case.
6.6 The Union of India through DOPT has accepted the above mentioned judgment of the Apex Court and directed various departments and Ministries to deal with the issue of wrongful/excess payments made to government servants in accordance with the said judgment. Particularly, the DOPT OM No. F.No.18/03/2015 - Estt. (Pay-I) dated 2.3.2016 states:
" 5. The matter has, consequently, been examined in consultation 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 to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA NoJ1527 of 2014 (arising out of SLP (C) No.11684 of 2012) in State of Punjab and others etc vs RaJIqMasih (White Washer) etc. However, 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 in terms of this Department's OM No.18/26/201 1-Estt (Pay-I) dated 6th February, 2014."13
Court No. 5(Item No.38) (OA No.2360 /2021) 6.7 In most of the cases, the government departments/ministries revise the pay scales granted earlier to the government servant at the fag end of the career and after re-fixation of the pay scales with effect from certain back date , order recovery of such irregular payment . The DOPT has again reiterated this decision of the government, vide OM No. 18/03/2015-Estt (Pay-i) dated October, 2022. This OM states:
"4. In this context, it is observed that the time taken by the Ministries/Departments/Offices to discover mistakes/clerical faults in pay fixation of their employees is highly avoidable. The situation of overpayments occurs on account of erroneous calculation of payments due to an employee. If not detected in time, amount becoming due for recovery due to these excess payments keep accruing. In many cases, these overpayments come to notice of the administrative authority at a very late stage resulting in substantial amounts becoming due for recovery. However, in the wake of the Order dated 18.12.2014 of the Hon'ble Supreme Court referred above, these recoveries are to be considered for waiver in the types of cases identified therein. As a result, the administrative authorities concerned are compelled to explore other alternatives available to recover the amount involved or seek approval of the D/o Expenditure to waive off the same in accordance with the procedure prescribed in this Department's OM dated 02.03.2016 read with the instructions contained in DoPT's OM No 18/26/2011-Estt (Pay-I) dated 06.02.2014.
5. The matter has been examined in consultation with the D/o Expenditure. It is advised that --14
Court No. 5(Item No.38) (OA No.2360 /2021) i. Ministries / Departments / Offices may exercise extreme caution and take suitable measures while handling pay fixation of their employees as also in other cases involving payments so as to ensure that such lapses/mistakes do not occur;
ii. Pay fixation orders issued due to grant of MACP/ACP/financial upgradation/ increment! promotion etc. may necessarily be audited by the internal audit and/or the Pay & Accounts Office concerned within 3 months of issuing such orders; and iii. n cases where the employee is due to retire within next 4 years, audit of previous pay fixation orders shall be done on priority."
6.8 This process of referring the waiver of the excess recovery from the government servant, Government of India to the Department of Expenditure has been has also been reiterated by the OM No 09(20)/2023-E.II (A) dated 1.6.2023 by the Department of Expenditure, Ministry of Finance, Government of India. These are the internal processes to adopted by various Government Departments/ Ministries and autonomous entities of Government of India adopting the guidelines of DOPT, mutatis mutandis. In other words, though the DOPT and Department of Expenditure have accepted the basic principles laid down in the Rafiq Masih case, they 15 Court No. 5(Item No.38) (OA No.2360 /2021) have not given blanket liberty to individual departments/Ministries to decide waiver of recovery inn those situations mentioned in the said judgement, but kept the final authority for decision with the Department of Expenditure. Nevertheless, such policy circulars have accepted the judgment of the Apex Court in Rafiq Masih case.
7. When the matter was under consideration in Rafiq Masih (supra) case a reference was made to a Three Member Bench of the Apex Court because of the apparent difference of opinion expressed on one hand in the cases of Shyam Babu Verma and Ors. v. Union of India &Ors. (1994) 2 SCC 521 and Sahib Ram Verma v. State of Haryana (1995) Supp. 1 SCC 18 and on the other hand, in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand & Ors. (2012) 8 SCC 417. The three Member Constitutional Bench vide their order dt 08.07.2014 dealt the matter extensively. The order of reference made by two judge bench of the Apex Court reads as under :
16
Court No. 5(Item No.38) (OA No.2360 /2021) "In View of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. vs. Union of India &Ors. (1994) 2 SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18; and on the other hand in Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand&Ors. (2012) 8 SCC 417, we are of the view that the remaining special leave petitions should be placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon'ble the Chief Justice of India for taking instructions for the constitution of a Bench of Three Judges, to adjudicate upon the present controversy."
The three Member Constitutional Bench also held that:
"7. In our considered view, the observations made by the Court not to recover the excess amount paid to the appellant-therein were in exercise of its extra-ordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.
8. In Chandi Prasad Uniyal's case (Supra), a specific issue was raised and canvassed. The issue was whether the appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered.
12. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first Page 25 25 two judgments and the latter judgment.
13. In that view of the above, we are of the considered opinion that reference was unnecessary. Therefore, 17 Court No. 5(Item No.38) (OA No.2360 /2021) without answering the reference, we send back the matters to the Division Bench for its appropriate disposal."
7.1 As there is no conflict between the Chandi Prasad Uniyal (Supra) case (Invoking Article 136/141 and the Shyam Babu Verma (Supra) and Sahib Ram (supra) Chandi Prasad case are also valid. In summary, the Rafiq Masih case has stipulated the all possible hardship cases. It is impermissible in law to recover any excess amount in those cases, irrespective of any provision in any rule/notification.
7.2. In cases of fraud/misrepresentation/stipulation in fixation order by employee and in cases when the employee furnished an undertaking at the time of fixation of pay or payment of allowances that he would refund the excess amount, if any, of that would be determined by the authorities, the employer can recover the excess amount subject to the limitations in Rafiq Masih case.
8. Question has been raised whether the Rafiq Masih judgment has overruled the provisions in the CCS 18 Court No. 5(Item No.38) (OA No.2360 /2021) (Pension) Rules, 1972, regarding recovery of Government Dues from the government employee. It will be appropriate to delve into the exact provisions in the said Rules. Rules 71 to 73 of the CCS (Pension) Rules, 1972, specifies the recovery of government dues. The provisions in Rule 71 and 73 are as follows:
"71. Recovery and adjustment of Government dues (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement. (2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the 1[retirement gratuity] becoming payable.
(3) The expression `Government dues' includes -
(a) dues pertaining to Government accommodation including arrears of licence fee * [as well as damages for the occupation of the Government accommodatin beyond the permissible period after the date of retirement of the allottee )] if any ;
(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961).
73. Adjustment and recovery of dues other than dues pertaining to Government accommodation (1) For the dues other than the dues pertaining to occupation of Government accommodation as 19 Court No. 5(Item No.38) (OA No.2360 /2021) referred to in Clause (b) of sub-rule (3) of Rule 71, the Head of Office shall take steps to assess the dues ^[one year] before the date on which a Government servant is due to retire on superannuation ; or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.
(2) The assessment of Government dues referred to in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of the retirement of the Government servant.
(3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of 1[retirement gratuity] becoming payable to the Government servant on his retirement."
9. When Rafiq Masih case stipulated the restrictions, though these provisions were not expressly discussed, the invocation of Articles 38, 39, 39-A, 43, 46 under the Directive Principles of Constitution of India and the fact that it has considered the overall mandate of the Apex court to do "complete Justice" under Article 142 of the Constitution , these statutory/rule position has been implicitly taken into consideration. Hence, unless the Government refers the matter to the constitutional Bench for further clarification, the ratio of judgment in Rafiq Masih (supra) case can be interpreted that it has 20 Court No. 5(Item No.38) (OA No.2360 /2021) considered the Rule position under Rules 71 and 73 of the CCS(Pension) Rules, 1972 and stipulated the instances when it is impermissible in law to recover excess amount paid to a government servant.
10. In view of the above, the principles enunciated in Rafiq Masih case (supra) are fairly applicable in the instant case. Even applying the ratio of the judgment of the Apex Court in Chandi Prasad Uniyal (supra), there is no allegation of fraud or connivance on the part of the applicant in getting pay fixation in his favour. As it is a bonafide mistake on the part of the respondents the ratio of the judgment of the apex court in Rafiq Masih case is squarely applicable.
11. In the instant case, the ratio of the judgment of the Apex court in Rafiq Masih (supra) case is squarely applicable.
11.2 In the instant case, (i) the recovery pertaining to the period 1.1.2006 to 30.8.2021, ordered on 10.6.2021 is impermissible by law, applying the ratio of the judgment of the Rafiq Masih (supra) case. Hence, 21 Court No. 5(Item No.38) (OA No.2360 /2021) the recovery order dated 6.10.2021 is hereby quashed.
(ii) The applicant's prayer for allowing her to re-exercise her option in respect 7thPay Commission recommendations is not granted.
11.3 The OA is disposed of in the above terms. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /mk/