Central Administrative Tribunal - Chandigarh
Ram Pal vs Bharat Sanchar Nigam Limited on 7 May, 2019
Author: P. Gopinath
Bench: P. Gopinath
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.NO.060/01488/2017 Orders pronounced on:07.05.2019
(Orders reserved on:02.05.2019)
CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HON'BLE MS. P. GOPINATH, MEMBER (A)
Ram Pal aged about 66 years
S/o Sh. Hari Singh
r/o House No. 156/16,
Nehru Garden, near Jat School,
Karnal Road, Kaithal,
Haryana-1360270 (Retired Group A).
... Applicant
(BY MR. ASEEM RAI, ADVOCATE).
Versus
1. Union of India through its Secretary, Ministry of
Communication, Department of Telecommunication,
Sanchar Bhawan, 20 Ashoka Road, New Delhi-110001.
2. Controller of Communication Accounts, Haryana Telecom
Circle, Doorsanchar Bhawan, Ambala Cantt-133001.
(BY MR. K.K.THAKUR, ADVOCATE).
3. General Manager, Telecom District Karnal, BSNL, Sector
8, HUDA, Karnal-132001.
(BY MR. MADAN MOHAN, ADVOCATE).
4. Branch Manager, Union Bank of India, RKSD College,
Ambala Road, Kaithal, Haryana.
(BY MR. RAJAN CHAWLA, ADVOCATE).
.... Respondents
(OA.No. 060/01488/2017-
Ram Pal Vs. UOI etc.)
2
ORDER
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
1. The applicant has filed this Original Application (O.A) under section 19 of the Administrative Tribunals Act, 1985, challenging order dated 5.6.2017 (Annexure A-5) vide which recovery of excess payment has been made from retiral dues of the applicant.
2. The facts of the case, which led to filing of the instant O.A, are that the applicant retired from a Group „A‟ post of Divisional Engineer Telecom (DET), BSNL, Kaithal on 30.4.2011. His pension was released vide PPO dated 9.6.2011 (Annexure A-1), at the stage of Rs.23,187/- and it reached to the stage of Rs.47,651/- in December, 2016. A lump sum amount of Rs.1,00,000/- was debited from pension account of the applicant on 10.1.2017 and pension amount was also decreased to the stage of Rs.33,282/- (Annexure A-2). The pension of BSNL employees, who retired between 1.1.2007 to 9.6.2013, was revised w.e.f. 10.6.2013 (due to merger of 78.2% D.A. as on 1.1.2017), as intimated to applicant also vide letter dated 30.11.2016. The applicant met with a road accident in January, 2017, due to which he was confined to bed. On enquiry, it was conveyed vide communication dated 30.11.2016 (Annexure A-3) that his pension stood revised under IDA scales w.e.f. 1.1.2007 (Pay Fixation with 78.2% DA merger) w.e.f. 10.6.2013. The applicant was informed vide letter dated 5.6.2017 (Annexure A-
5), that recovery was due to non-deduction of amount of commutation of pension i.e. Rs.8652/- per month which was (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 3 detected during audit. Thus excess payment of Rs.2,00,378/- was made to him. So, the respondents were well within their power and authority to correct the error and make recovery of excess payment from applicant in terms of Circular dated 17.3.2016, issued by Reserve Bank of India. The claim of applicant is that he had no prior information and impugned recovery has been made in violation of principles of natural justice which is not permissible as he had never misrepresented the department and as such over payment cannot be recovered from him more so when he is a retiree. Hence, the O.A.
3. The respondents No.1&2 have resisted the claim of the applicant by filing a reply. They submit that since applicant was given excess payment wrongly by not deducting commutation amount of Rs.8652/-P.M, so during audit when error was detected, the same was corrected and excess amount was correctly recovered from him. They submit that in such like cases principles of natural justice are not required to be followed as facts were prima facie apparent that an error had indeed occurred and that could be corrected. Respondents No.3 and 4 have also filed their separate replies, on similar lines.
4. We have heard the learned counsel for the parties at length.
5. The learned counsel for the applicant vehemently argued that the impugned recovery has been ordered in violation of principles of natural justice and as such cannot be sustained in the eyes of law and in any case there was no fault on the part of the applicant and, therefore, he cannot be made to suffer in this old age. In support of his plea, learned counsel has placed reliance on decision in Writ - A. no. 37932 of 2000 titled VIJAY (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 4 PRAKASH SHARMA (KANOONGO) VS. STATE OF U.P. & OTHERS, decided on 11.1.2018 by Allahabad High Court and decision of High Court of Judicature at Madras in W.P. No. 36507 of 2006 titled K. KUMARAN VS. CPAO ETC. decided on 28.11.2013, in which cases, the action taken in violation of principles of natural justice was set aside.
6. We have carefully considered the submissions on both sides and examined the material on file with the able assistance of learned counsel for the parties.
7. The facts are not at all in dispute that the amount of commutation value of pension was not deducted by the Bank and on being pointed out by the audit authorities, the mistake was corrected and recovery was made from the applicant, who has retired as a Group A officer. No doubt, the notice has not been served upon the applicant, but question remains, as to whether had it made any difference, at all. Even in the instant O.A. the applicant has failed to offer any explanation that it was not an error. The only justification given is that he was not at fault and as such recovery cannot be made from him.
8. We find merit in the stand taken by the respondents that since it was an error, the authorities could correct it and recovery could be made. As per JT 1997 (3) SC 536 (CHANDIGARH ADMINISTRATION VS. NAURANG SINGH), the Government is well within its right to take corrective measures regarding undue benefit which has been wrongly granted to some employees. As per 1998 (2) ATJ, P-286 (JAGDISH PRAJAPAT VS. THE STATE OF RAJASTHAN & OTHERS), factual mistake can be rectified by the departmental authorities. In 2005 (4) RSJ, 749 (ANAND (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 5 PRAKASH VS. STATE OF PUNJAB) and 1992 (1) SCT, 129, RAJ KUMAR BATRA VS. STATE OF HARYANA, it has been held that as and when a mistake is detected, the employer is within its right to rectify it. In (2005) 13 (G. SRINIVAS VS. GOVT. OF A.P. & ORS.) it has been held that an order passed by mistake or ignorance of relevant fact can be reviewed by the authority. In (2008) 2 SCC 750 (UNION OF INDIA VS. NARENDAR SINGH), it has been held that mistakes are mistakes and as such can always be corrected by following the due principles of law. In that view of the matter, we find that the respondents have not committed any error in correcting an admitted mistake.
9. The plea taken by the applicant that the respondents have not followed the principles of natural justice and as such impugned action cannot be approved of is also not tenable on the touchstone of prejudice theory. There are enumerable cases where Courts discard principles of natural justice after satisfying that the outcome of the case could not make any difference even if natural justice is fully observed. It is based on „Useless formality‟ theory, as on the admitted facts only one conclusion is possible, so the Court would not insist on the observance of the principles of natural justice because it would be futile to order its observance.
10. In case reported as 2007 (4) SCC 54, ASHOK KUMAR SONKAR VS. UNION OF INDIA & ORS., the Hon‟ble Supreme Court held that principles of natural justice cannot be applied in a vacuum. They cannot be put in any straitjacket formula. It may not be applicable in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise. A court of law (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 6 does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. In ALIGARH MUSLIM UNIVERSITY AND OTHERS V. MANSOOR ALI KHAN (2000) 7 SCC 529, the law was settled holding that "the useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
11. In KARNATAKA STATE ROAD TRANSPORT CORPORATION AND ANOTHER V. S.G. KOTTURAPPA AND ANOTHER (2005) 3 SCC 409, the Court held: "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 7 each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given"
12. In PUNJAB NATIONAL BANK AND OTHERS V. MANJEET SINGH AND ANOTHER (2006) 8 SCC 647, the Hon‟ble Supreme Court has held "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising there under is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
13. In P.D. AGRAWAL V. STATE BANK OF INDIA AND OTHERS (2006) 8 SCC 776, the Hon‟ble Supreme Court held that "The Principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 8 change." It was further observed: "Decision of this Court in S.L. KAPOOR VS. JAGMOHAN & ORS. (1980) 4 SCC 379, whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in STATE BANK OF PATIALA & ORS. VS. S.K. SHARMA, (1996) 3 SCC 364. and RAJENDRA SINGH VS. STATE OF M.P. [(1996) 5 SCC 460., the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula."
14. The Hon‟ble Supreme Court had applied this theory in DHARMARATHMAKARA RAI BAHADUR ARCOT RAMASWAMY MUDALIAR EDUCATIONAL INSTITUTION VS. EDUCATION APPELLATE TRIBUNAL in (1999) 7 SCC 332. Thus, in cases where grant of opportunity in terms of the principles of natural justice does not improve the situation, "useless formality" theory is pressed into service, In this case a lecturer, who had been (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 9 granted leave for doing M. Phil, in violation of leave condition, had joined Ph. D course. She was given notice and after considering her reply, wherein she had admitted joining Ph. D course, her service was terminated. She challenged the termination order before Karnataka Private Educational Institutions (discipline and Control) Act, 1975 subsequently it is appealed to HC where termination was held invalid, but SC held that opportunity to show cause was not necessary where facts are undisputed and the affected person could not fourth any valid defence.
15. As a last resort, learned counsel for the applicant placed reliance upon decision in the case of STATE OF PUNJAB ETC. VS. RAFIQ MASIH ETC. (2015) 4 SCC 334, to argue that if recovery is going to cause hardship to certain category of employees, it should not be made.
16. After the aforesaid decision, the Hon‟ble Apex Court in the case of HIGH COURT OF PUNJAB & HARYANA & OTHERS VS. JAGDEV SINGH reported in (2016) 14 SCC 267 has held that recovery is permissible. In this case, the court held that "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.". The respondents have pleaded that applicant had given in writing to make recovery if any mistake is found later on in fixation of pension and that being so, (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.) 10 we do not find any fault in action of respondents, more so when he has retired as a Group A officer.
17. In the wake of the above discussion, we find that present OA is devoid of any merit and is dismissed accordingly, leaving the parties to bear their own costs.
(SANJEEV KAUSHIK) MEMBER (J) (P. GOPINATH) MEMBER (A) PLACE: CHANDIGARH.
DATED: 7th MAY, 2019 HC* (OA.No. 060/01488/2017- Ram Pal Vs. UOI etc.)