Central Administrative Tribunal - Delhi
Off: Cghs Wellness Centre No.9 vs The Secretary on 4 July, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3523/2011 Order reserved on 31st May 2012 Order pronounced on 4th July 2012 Honble Shri Shailendra Pandey, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Dr. Narayan Prasad s/o late Shri Purushottam Lal Pandey C 64 GF Dayal Bagh Faridabad HR 112003 Off: CGHS Wellness Centre No.9 Lodhi Road (Aliganj) Delhi-3 ..Applicant (Applicant in person) Versus 1. The Secretary Ministry of Health & Family Welfare Room No.154, Nirman Bhawan, New Delhi 2. Additional Director CGHS Central Zone, Dispensary Building Chitra Gupta Marg (Aram Bagh) New Delhi-55 ..Respondents (By Advocate: Shri Subhash Gosai) O R D E R
Shri A.K. Bhardwaj:
As is pleaded by applicant in this original application, his salary for a period of four months, i.e., from October 2010 to January 2011 was withheld illegally without giving him any prior intimation about the same. Subsequently, on 10.1.2011, AD (CZ) ordered for release of his salary only after he made first appeal under Right to Information Act, 2005 and made a request to said authority on 6.1.2011 with a copy of such request to Director (CGHS) by Speed Post on 7.1.2011 seeking his intervention. Subsequently, an office order dated 10.5.2011 sanctioning EL/EOL in favour of applicant for the period from 21.4.2008 till 14.12.2010 was issued. As a result of said order, respondents deducted 35% to 40% of monthly emoluments of applicant. Having raised aforementioned pleas as well as also the plea of misbehaviour with him by Account Officer, defamation by the Department and also grading of his ACR/APAR for the period from 2010-2011 below benchmark, applicant espoused following grievances:-
i) In terms of order F.No.7-3/07-CGHS/CZ/8865 (A) (b) dated 21.9.2010, his pay and allowances from September 2010 are withheld without giving him any intimation about the same.
ii) OSD CZ (CPIO CZ) issued him a memo F.No.7-3/2007/CGHS/CZ/10841 dated 28.12.2010 making false and defamatory allegation by in subordinating AD CZ.
2. Having raised aforesaid pleas and grievances, applicant has filed present original application seeking the relief mentioned in para 8 of the original application as under:-
8.1 Additional Director CZ should be estopped from issuing a new sanction letter for leaves from 2008 onwards under law of estoppel (Section 115-Indian Evidence Act 1872). (Annexure A-1).
8.2 Compensation:-
8.2.1 Interest at market rate for the period of salary without (nearly four months) (Annexure A-2). 8.2.2 Borrowing of 60,000 Rs was taken for around four months. I should be compensated principal plus interest at market rate. 8.2.3 Illegal salary deductions: The amount deducted should be refunded with market rate of interest. Principal Rs.57396/- plus interest. 8.2.4 Late payment charge of pending bills i.e. Childs School fees, Electricity bill, Phone bill, Car loan ECS bounce should be given (Rs.2550/-) 8.2.5 Compensated for the personnel damages including defamation and financial, mental & social harassment of me and my two small kids (elder Baby -5 year old & younger baby-6 months old) accrued amount is Rs.3000000/- 8.2.6 Expenditure in filing & pursing the case including Paper work + transport + Advocate charges & if any, Tentative cost is 35000 Rs. 8.3 Closure of the personnel file:-
Memo was issued by non competent authority in reaction to RTI appeal and all the issues raised in Memo were suitably replied and no further explanations were sought till date (more than eight months passed). (Annexure A-5).
8.4 The previous sanction letter for leaves with 42 days EL and 11 days HPL at my credit up to 30-06-2010 should be put in operation for leave audit. (Annexure A-2).
3. To substantiate his entitlement for aforementioned relief, applicant, who appeared in person, contended as under:-
i) When in terms of letter F.No.15-18/07/CGHS/CZ/5968 to 69 dated 18.5.2010 the competent authority sanctioned 42 days EL and 11 days HPL in his favour upto 30.6.2010, respondents were estopped from issuing another order issuing revised sanction of leave for a period, including the period upto 30.6.2010.
ii) It was not open to the concerned authorities in respondents-department to commute the kind of leave due to applicant in the absence of any request made by him for the purpose.
iii) The reduction from his salary is illegal.
4. In the original application applicant has also prayed for late payment charges on pending bills and personal damages of Rs.3 lacs but no argument to substantiate such prayer is found to be raised by the applicant either in the original application or during the course of hearing. Making reference to decision of this Tribunal in Radha Krishna v. Govt. of NCT of Delhi & others (OA-1825/2007) decided on 14.5.2008, applicant raised the only contention that the excess amount already paid to him on account of administrative error should not be recovered.
5. In the counter reply filed on behalf of the respondents, it is pleaded that on receipt of full record of absence of applicant from CMO I/C Pragati Vihar, the period of unauthorized absence of applicant was regularized by sanctioning EOL for the period from April 2008 to December 2008 vide office order No.1518/07/CGHS/CZ/2757-58 dated 10.5.2011. It is also the contention of the respondents raised by them in their counter reply that no government servant can claim leave as a matter of right, thus, the pay and allowances of the applicant for the period of his unauthorized absence could be correctly withheld. According to the respondents during the course of hearing of appeal under Right to Information Act, 2005, the applicant himself acknowledged the fact of receiving the office order dated 21.9.2011 in terms of which his salary from the month of September 2010 onwards was directed to be withheld to avoid overpayment. Respondents have justified the recovery from the pay of applicant by contending that for the period of EOL of 142 days, the applicant is not entitled to any salary. They have also contended that for the period of unauthorized absence, the applicant is not entitled to any salary on the principle of no work no pay. In para 4.7 of the counter reply, it is averred by the respondents that release of the salary payable to the applicant in terms of letter dated 10.1.2011 issued by AD/CZ was subject to regularization of the absence period.
6. We have heard the learned counsel appearing for the parties and perused the record.
7. From the pleadings and material available on record as well as the contentions of rival parties put forth during the course of hearing, the following issues arise to be determined by us:
i) Whether payment of salary made to applicant for the period of unauthorized absence, which could be regularized as leave without pay (EOL), which was otherwise not due to him, could not be recovered.
ii) Whether in view of office order dated 18.5.2010 issued by AD (CZ) sanctioning leave in favour of applicant for certain period during 20.8.2009 to 21.5.2010, said authority was estopped from issuing office order dated 10.5.2011.
iii) Whether respondents could regularize the period of unauthorized absence by sanctioning leave due in the absence of any application from applicant for granting such leave.
iv) Whether the overpayment of salary made to applicant despite being not due to him could be recovered without giving him a show cause notice.
8. As far as the question of recovery of overpayment of salary not due to the applicant is concerned, in the counter reply filed by the respondents it is categorically submitted that the applicant was unauthorizedly absent for the period from April 2008 to December 2008. In corresponding paras of the rejoinder filed by applicant, it is stated that when the respondents had sanctioned leave to him for a particular period, they cannot canvass the said period as the period of unauthorized absence of applicant. While taking such a stand, the applicant himself pleaded that he was granted EL for the period from 21.4.2008 to 19.5.2008 and commuted leave for the period from 18.8.2008 to 13.11.2008 on the basis of medical certificate dated 18.11.2008. Relevant excerpt of the rejoinder filed by the applicant reads as under:-
Therefore, on one hand respondents are saying that I was unauthorized absent and on the other hand, said that they had adjusted my leaves, intended to mislead OA. Therefore, the respondents have made false allegations that I was absent unauthorized from April to Dec 2008 and denied. It is further submitted that I was granted earned leave from 21.4.08 to 19.5.08 vide letter no.455455/08/PV/CGHS/DISP dated 5.3.08. I was further granted commuted leave from 18.8.08 to 13.11.08 and medical certificates and fitness certificate were submitted vide Letter No.200/PV/08/CGHS/DISP dated 18.11.08. The respondents had further sought the medical certificate for leave period from 27.9.08 to 13.11.08 vide order F.No.15-18/07-CGHS/CZ/1620 dated 18.3.09. Henceforth medical certificate was further submitted by Letter No.114/PV/08/CGHS/DISP dated 25.3.09. It is further brought in kind notice of the Honble Tribunal that I have sanctioning of 42 days Earned Leaves and 11 days Half Pay Leaves in my credit up to 30.6.10 vide Office Order F.No.15-18/07/CGHS/CZ/5968 to 69 dated 18.5.2010. I am enclosing the order dated 18.5.2010 and marked it as Annexure R-1).
9. From the stand taken by the applicant in his rejoinder, it is apparent that he remained absent from duty unauthorizedly and subsequently respondents regularized the period of such absence by sanctioning the kind of leave admissible to him. Most of the leave sanctioned in favour of applicant for the period of unauthorized absence was extra-ordinary leave. In terms of Rule 32 of CCS (Leave) Rules extra-ordinary leave may be granted to a government servant when:-
a) no other leave is admissible,
b) when other leave is admissible but the government servant applies in writing for grant of extra ordinary leave.
10. In terms of Rule 32 (6) of said Rules, the authority competent to grant leave may commute retrospectively periods of absence without leave into extra ordinary leave. Thus, when EOL may be granted to a government servant on his application, same may also be sanctioned in his favour when no other leave is due to him and by commuting respectively the period of absence without leave. For easy reference, Rule 32 (6) of CCS (Leave) Rules is extracted hereinbelow:-
(6) The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave.
11. Further in terms of Rule 40 (5) of said Rules, a government servant on extra ordinary leave is not entitled to any leave salary. In the present case, when a period of 142 days of unauthorized absence of the applicant was commuted as extra ordinary leave, he was not to be paid any salary for such period. Since the applicant also made applications for granting him EL/commuted leave/medical leave, etc. for the period of his absence mentioned in office order dated 10.5.2011, he was conscious about such period of absence. However, he has objected to recovery of salary paid to him for the period of his unauthorized absence commuted as extra ordinary leave on the ground that the overpayment made to him by mistake cannot be recovered.
12. In support of his contention, he has relied judgment of the Honble Supreme Court in the case of Shyam Babu Verma & others v. Union of India & others, (1994) SCC 2 521. In the said case, in the normal course, the petitioners were entitled to the pay scale of Rs.330-480 and not to the pay scale of Rs.330-560. However, they were getting the higher scale of Rs.330-560 from 1973. Once it was revealed that the said petitioners were not Pharmacist who possessed qualifications mentioned in clauses (a) to (c) of the Act, they were placed in the lower pay scale of Rs.330-480 w.e.f. 1.1.1973 and the overpayment made to them was sought to be recovered. It was in such circumstances that Honble Supreme Court restrained the respondents from making recovery of excess payment made to Shyam Babu Verma and others by taking the view that for excess payment made to them no fault could be attributable to them.
13. In OA-1825/2007 (supra) the applicant was granted increment before he could pass the required typing test. On being found that he was not entitled to such increment before passing the typing test, the amount of arrear of increment was sought to be recovered from him. Thus, the aforementioned are cases where the employees continued discharging their duties in a routine manner and on account of certain bonafide mistakes not attributable to employees, excess payment could be made. Since a sincere and devoted government servant discharging his duty in normal course cannot be surprised by recovery of overpayment made to him due to bonafide mistake not attributable to him, such recovery is often not permitted. The present case, however, is not a case where overpayment could be made to the applicant on account of any bonafide mistake of administration.
14. As can be seen from his application dated 19.5.2011 made by him to Additional Director, CGHS (CZ), the applicant was fully conscious about the period of his unauthorized absence and requested for readjustment of same as HPL, commuted leave/leave not due, etc. For easy reference, para 2 of said application is extracted hereinbelow:-
2. Half Pay Leave (HPL) related:
S.No. HPL Balance till 30-06-11 Leave adjusted as (as per letter F.No.15-18/07/CGHS/CZ/ 5968 to 69 dated 18th May, 2010)
1. 15 (2005) + 20 (2006) + 20 (2007) + 20 (2008) + 20 (2009) + 20 (2010) + 10 (2011)= Total 125 days ? Please include left out 20 days commuted leave 40 (HPL) in the sanction letter till 30-06-11.
Only 42 days commuted leave (84 HPL) are adjusted w.e.f. 20-08-09 to 30-09-09. As a result, there are 41 days HPL are still in my credit.
15. Thus, knowing fully well that no salary is admissible for extra ordinary leave, the applicant had requested for conversion of the period treated as extra ordinary leave into leave of different kinds. When the applicant could be paid salary for the period of extra ordinary leave in violation o f Rule 40 (5) of the Rules ibid and despite being conscious about his unauthorized absence and kinds of leave due to him he received the salary for such period, it cannot be viewed that the payment of such amount of salary paid to him despite being not due is a bonafide mistake solely attributable to the administration and not to applicant.
16. In the State of Rajasthan & another v. Mohammed Ayub Naz, JT 2006 (1) SC 162, Honble Supreme Court observed that absenteeism from office for prolonged periods of time without prior permission by the Government servants has become the principal cause of indiscipline, which has greatly affected various Government services. Relevant excerpt of para 9 of the said judgment reads as under:-
9. Absenteeism from office for prolong period of time without prior permissible by the Government servants has become a principle cause of indiscipline which have greatly affected various Government services.
17. Beside aforementioned, it is also noticed that the applicant himself made representation to ED (CZ) requesting him to pay him salary for the period in question. Thus, apparently overpayment of the amount paid to applicant despite being not due to him is attributable, to some extent at least, to the applicant. Relevant excerpt of the averments made by applicant in his OA reads as under:-
I had made personnel representation to AD CZ, made phone calls to account selection and audit officer & sent written request dated 03-12-10 & 06-12-10 that I am starving, but failed to get my salary.
xx xx xx xx xx Again I sent another request for salary release to AD CZ on 06-01-11 and also sent a copy to Director CGHS by speed post on 07-01-11 for seeking his intervention Then on 10-01-11, AD CZ ordered for my salary release.
18. In Rachpal Singh Gehlot & others v. Union of India & others, (W.P. (C) No.6678/2003) decided on 25.8.2005 having taken note of judgment of the Honble Supreme Court in the case of Shyam Babu Verma (supra), Honble Delhi High Court ruled as under:-
10. Be that as it may, the issue that arises for our consideration is whether any overpayment made by the respondent to the petitioners in respect of the pay of the petitioners by way of mistake could or could not be recovered, when the said mistake is detected. It is not the case of the petitioners that the pay fixation was correctly made and they were entitled to be paid in terms of the revised pay fixation, which have been withdrawn by the respondent. Therefore, there cannot be a dispute that the aforesaid revised pay fixation in terms of which the petitioners were paid, was by way of mistake on the part of the respondent. The petitioners deny and dispute their liability to pay solely on the ground that they were in no manner responsible for the aforesaid mistake committed and they had not committed any fraud or misrepresentation.
11. In the case of Shyam Babu Verma (supra) what was sought to be recovered was the excess amount paid to the petitioners in view of giving higher pay scale erroneously since 1973, which was reduced in the year 1984. It was held in the said decision that the pay fixed should not have been paid to the petitioners but since there was no fault of the petitioners in the matter of payment of said higher pay, therefore, it should not be recovered. In this connection reference may be made to the paragraph 11 of the said judgment, which was also considered by the Tribunal but it was held the Tribunal the said principle not applicable to cases of serving employees and that the said judgment was delivered in cases of retired employees. Accordingly, it was ordered by the Tribunal that the said decision would not apply to serving employees.
12. We have considered the ratio of the said judgment and also some other judgments of the Supreme Court on almost similar issue. In the case of Chandigarh Administration and Ors. vs. Naurang Singh and Ors. reported in JT 1997 (3) S.C.536 a similar issue came up for consideration before the Supreme Court in which the Supreme Court had upheld recovery of overpayment made due to mistake. In this connection we may refer to paragraph 6 of the judgment wherein the Supreme Court was of the opinion that the mistake committed by the Administration cannot furnish a valid or legitimate ground for the Court or the Tribunal to direct the Administration to go on repeating that mistake. It was also held that in the said decision that the Administration could have rectified the said mistake, which should have been most appropriate course but even their failure to do so, cannot entitle the employees to say that mistake should form a basis of the giving the higher pay scale to them. The said decision, therefore clearly is an authority on the issue that if there is a mistake by the government employees and excess payment is made to the employees, to which they were otherwise not entitled, the same could be ordered to be recovered.
13. In the present case the Tribunal has ordered that the aforesaid excess payment made to the petitioners can be recovered by the respondent in easy installments.
14. We may also in this connection refer to the decision of the Supreme Court in Union of India and Ors vs. Smt.Sujatha Vedachalam and Anr. JT 2000 (6) SC 217 wherein Supreme Court in a similar case of excess payment upheld the recovery thereof by applying the ratio of judgment of the Supreme Court in the earlier case in Comptroller and Auditor General of India and ors. vs. Farid Sattar JT 2000 (4) SC 374. In the said decision the order for recovery of excess payment to the respondent was upheld by the Supreme Court. It would be also appropriate to refer in this connection to the decision of the Supreme Court in V.Gangaram vs. The Regional Director and Ors. reported in JT 1997 (5) S.C. 385 wherein in paragraph 7 of the said judgment the Supreme Court has directed that the excess amount paid to the petitioners should be recovered from pension payable to the petitioners. A similar view has also been expressed by the Supreme Court in the case of State of Haryana and Anr. vs. O.P.Sharma 1993 (Suppl.) 2 SCC 386.
15. In that view of the matter and in view of the successive decisions of the Supreme Court permitting recovery of excess payment made, we hold that the respondent is entitled to recover excess payment made to the petitioners in accordance with law but the same shall be recovered as ordered by the Tribunal in easy installments so as to avoid any hardship to the petitioners. In the light of the aforesaid observations and directions, we uphold the order of the Tribunal and the writ petition stands dismissed.
19. In the facts and circumstances of the case and in view of the judgment of Honble the Delhi High Court, we cannot accept the contention of the applicant that the excess payment of the amount made to him, despite being not due, cannot be recovered.
20. Regarding the contention of the applicant that having issued the order dated 18.5.2010, AD (CZ) could not have issued another office order dated 10.5.2011 granting leaves of kind admissible to applicant being estopped from doing so, we find that vide office order dated 18.5.2010 the said officer had sanctioned leave for certain period during 20.8.2009 to 21.5.2010 while in terms of order dated 10.5.2011 he had commuted the period of unauthorized absence during 21.4.2008 to 14.12.2010, i.e., a longer period although inclusive of the earlier period. According to the respondents, the order dated 10.5.2011 was issued by them after getting full record of absence of applicant from CMO I/C Pragati Vihar. In terms of CCS (Leave) Rules, 1972 came into force on 1.6.1972 applicable to Government servants appointed to civil services and post in connection with the affair of Union, various kinds of leave admissible to such servants and the procedure for grant of same is duly prescribed. Even if an authority could sanction leave contrary to provisions of said Rules, it was required to correct the order of such sanction and take a decision according to rules only. It is stare decisis that there is no estoppel against rules and law. As far as order dated 10.5.2011 regarding grant of salary to applicant is concerned, we find that in terms of said order the salary of the applicant from the month of September 2010 onwards was directed to be released and it was not that the applicant was declared entitled to salary for the period of extra ordinary leave. In these circumstances, we reject the contention of the applicant that the respondents are estopped from making recovery of excess payment made to applicant.
21. Applicant has also contended that in the absence of application submitted by him for the purpose, the respondents could not grant him leave of any kind. Such contention of the applicant is contrary to the pleadings in the rejoinder filed by him. In paras 1.1 to 1.5 of the rejoinder, he himself has admitted the fact of submission of medical certificate for the leave period from 27.9.2008 to 13.11.2008. Beside his application dated 19.5.2011 for adjustment and readjustment of the period of unauthorized absence is also part of record of the respondents. Moreover, in terms of Rule 32 (1) (a) of CCS (Leave) Rules, 1972, the competent authority may grant extra ordinary leave to a government servant in special circumstances when no other leave is admissible. Similarly, in terms of Rule 32 (6) of said Rules the authority competent to grant leave may commute retrospectively periods of absence without leave into extra ordinary leave. In the present case, it was the period of absence of the applicant, which is regularized by respondents by granting kinds of leave admissible to him, including extra ordinary leave. Thus, the decision of the respondents in granting extra ordinary leave to the applicant in the absence of any application made by him for the purpose cannot be found fault with.
22. Applicant has also contended that the amount of salary for the period of extra ordinary leave paid to him could not be recovered without giving him show cause notice. Principle of natural justice is commonsense justice, which provides that any decision entailing civil consequences having adverse effect on civil right of a person may not be taken without giving such person an opportunity of hearing. Thus, before making recovery of amount of salary paid to the applicant for the period of extra ordinary leave, respondents ought to have given him a notice to show cause and only after considering his response to such notice, they could make recovery of such amount. Applicant has not produced any material in support of his claim for late payment charges of pending bills, i.e., Rs.2550/-. In the absence of any grounds and pleading in support of such claim, we cannot adjudicate the same. While claiming compensation of an amount of Rs.3000000/-, applicant has not laid any foundation for the same. When the applicant pleaded his case in person, he has claimed charges for paper work + transport + advocate charges, i.e., Rs.35000/-. Claim of the applicant for advocate charges even when he had not engaged any advocate to plead his case is not tenable.
23. In view of the aforementioned, we dispose of the original application with a direction to the respondents to issue a notice to the applicant giving him opportunity to show cause against recovery of amount overpaid to him. The amount already recovered from the applicant is made subject to the outcome of the decision to be taken by the respondents, i.e., only if the respondents will arrive at a conclusion that the period of absence of applicant treated as EOL could be converted in leave of such kind for which salary is admissible, he may be entitled to refund of such amount otherwise not and in such situation respondents would be entitled to recover the balance of the amount of Rs.193251/-. While giving reply to the show cause notice to be issued by the respondents, it would be open to the applicant to apply for HPL for the period of EOL mentioned in letter No.15-19/07-CGHS/CZ/816 dated 30.1.2012 addressed to him by AD/CZ (office of the Additional Director (CGHS) CZ).
24. OA disposed of as above. No costs.
( A.K. Bhardwaj ) ( Shailendra Pandey ) Member (J) Member (A) /sunil/