Central Administrative Tribunal - Cuttack
Sarat Kumar Panda vs D/O Post on 11 April, 2023
OA, No. 287 af 2020 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH Ne. DA 237 of 2020 Present: Hon'ble Mr. Pramod Kumar Das, Administrative Member shri Sarat ee Panda, aged about 31 years, S/o Prabhat af At ~ Keona Street, AT/PO i, "Purushata rps, Ganiam, Odisha, PIN y working as Postal Assistatn, Aska HO ara s Stene, Ofo SPs, Aska Dn, Appicart tUrdon of India tepre ented through itsSeoretary of Posts, Dak Bhawan, 8 mansad Marg, New Dethi - PLOTES. & Chie! Best Master General, Odisha Circle, At/PO Bhuhan away, Dis at Khorda, Odisha - 7S10Q1. : Herhampor Eegian, Berhmapur
4. The. Sa per intendent 'of Post Offices, Aska Division, Aska ~- FHL.
%. The [Mrector Accounts (Postall, Mahanadi Vihar, Cuttack - FSS0R4., voor RESHOMEERLS For the applicant ¢ Mr. CP Sahani, counsel For the respondents: Mr. B P Nayak, counsel. Heard & reserved om 1 23.03.8083 Orderon: f/f OR DER The applicant challenging the order of recavery has hied the present A praying for lolawing rebels:
the Civriginal Application, and ee b} After hearing the counsels far the parties be harther pleases] io quash t ye Audit Bepart No. Int. Audit {PR ~ T274/2019-20/ Aska HOsSoS-
OA. No. 297 af 2020 596 dated 18.08.2080 at Annexure ~ A/S in respect of the applicant, Sy recovery orders wide letter No. B/O-2u/Ch- dated 26.05.2080 at Annexure A/4 and Iter Ne. BYO-22/0h UT isub) j dated 27.06.2020 sand Ammesure A/G. Are] consequently, orders may iindiy be passed directing: the reagordents to give consequential boenafiis. Ander Borg | Pass ary other order{s) as the Nan'ble Tribunal deem faust and proper oO.
in the interest of justice considering the fects ax nd cirmumetarces Of St. Heard both sides and perused the records.
3. The case in nutshell as averrec! by the applicant in the OA is that the applicant while working as Cfhice Assistant was appointed by Respondent No. 3 as Inspector of Fosts (IP) Aska (WV est} Sub-Divisian on ad-hoc promotion for 6 months vide fetter dated O2.08. 2019 (Annexure Ajj and he worked there OH 10.02.2017. The applicant submitted that Ris pay chiring the said period was fixed at minimum stage of Inspector of Pasts pay scale wide order dated 02.09.2016 (Annexure A/2}. The applicant submitted that Mirector of Postal Accounts ie. Respondent No. 4 vide inte mal ancdit report dated 18.05.2020 (Ammewure A/S} ardered recovery of Rs. SeS80/- for adleged excess drawal of pay and & Giowances and Respendent No. + directed the postmaster Aska tot minfement the audit obyection ari intimated the recevery report vide letter dated 26.05.2 s20 [Annexure Af4}. He submitted that no oppertumity of hesring was given to the applicant. The applicast submitted a representation ta Reapondernt NOL 2 an 26. 26.05.2020 bat was advised to submit representation te Respondent Na. 3 which he did vide letter dated OS.06. 2020 [Annexure A/S). He submitted that the appeal was OLA. No. av of G20 Fae red T¥OG.2026 tAnnesure A/G) without assigning is misse any reasons. Hence the OA,
4. The respondents on the ether hand in thelr counter submitted: that the applicant was not promoted to the post of Inspector af Past bul was given ad boc appointment om temporary basis for 6 months and tie in terrual Audit Repurt reported that the basic pay of applicant during that period has a PYRE GOR Te LYRE correetly as oer this POV ESICHTS arider FR 3S ane Lhe hay i q ERT EN S sky 7 nyt 5 an should Rave heer fixed at Es.
applicant and when it was pointed out by the Internal Audit vide ther inspection report recovery order was passed. They further subs atte red that as per Rule AG of P&T Financial Hand Book (Annexure R/VI}, when audit officer disaliows a@ payment as sd, the DDO is bourd nat only to cover the amount but also without Hstening to any objection or protest lil the Audit Officer autheriges the payment to be resumed. The respondents further submitted that as per note 2 beleny Rule S6 it is stated that DDO must not enter inte ary correspondence with the Govt servant in this regard and leave him to refer the case to proper authority. They further submitted = x that as ger arder of this Trigumal im OA No, speaking and reasoned order was passed therefore they prayed for dismissal of the OA.
2. The aoplicant has fled rejoinder reiterating the stands taken by therm earben.
5. Learned counsel! far the appheant reiving on CUT-728 {SC ad submitted that law is well settled that if a person is put to ae ae OA. No. 237 of 2020 4 officiate om a higher post he is entitled to salary of that post. He further submitted that the applicant had mot misrepresented any fact for claiming m ard he ising & group C snroinvee, mo recovery should have been rmade in view of decision af Nar'ble Apex Court in State af Punjab and athers vrs Rahqy Masth (white washer and others (2015) 4 SCC 394. He submitted that befmre stoppage of higher aiiciating pay and recovery, mo opportunity of Seng heard owas afferded to the applicant thus viciating the principle of Bee Fe in a simular. mater the Chandigarh Bench of this Tribunal in OA Na. 1009/2012 in the matter of Neresh Kumar Gupte ve Uruern of fidia vide order dated 2ULOS 2Ot4 had held:
"ER. FR 22-42) makes & clear thet if en employee is ordered to werk on a Aigher post with Bigher responsibility then he ts entitled for the wages for the period wheo Se hos worked on thet post. Though in case of Nre applicant, when be wus ordered te wark as IPO on officiating basis in the year 2008, rider had Seen put that ke will mot be entitied for the extra moumanecratien for the said past but thet does not toke away Sie caim of te apolivant te bave the salary for performing the duties of te higher post. Sindarly, objection robed te the O4 thet be & not entitled for remuneration for the past ahen he was ordered to officiate he wank of e igher post end higher responsiblity, which hos already been furned down by their lordships of the Hon'ble Supreme Court by holding thot respondents cannot arbitrarily impose the coadition, which restricts veld legal night of ga employee. Therefore, we are leffwith no other aptien but to aecegt Ne GA, a2. Gur wew afso fads supports fram: tie recent judgment i inion Territory, Chandigarh Adrinktatios and Oviers vs Tarlachun Negh anf Ors {CWP No. S7OF8-CAT 2022 (ORSAY decided oa OF. OF S014 where fordship have aise ploeed reliance upon ay the case of Arindam Chattanadhyeys fsupre} wherein concluding para # has been stated that an officer is given Current Duty Chare or promoted on adhoc basis, Se shall be entitled to poy of the promoted past as has been Sold in Arindam Chattopadhyas case fsupra} and P ® Grover fsupro), Accordingly Ne imougeed arder 14.01 2012 whereby he Rt has been ordered te recover Hie pay and aloweaces pats fa the applicant & quashed and set aside."
OLA. No. 237 af BOG &
8. Vhie Trifranal while deding with similar matter Le. OA No. 168 /2019 vide fis order dated 30.09.2022 had passed following orders:
* Be thet as Hun, recovery from ao Gevi. servant fas sdverse cascading effect on Aisfher finoncial condition. Law & well settled thet not able ta answer is no uncwer fo deny Nie basic principles setural justice. Fair play is fart of public policy and a guarantee far fastice to clizens. In our systent of Rive of Low, every social agency conferred with power Is required ta sect foiriy ae thet savfalocten would be Just and there would be furtherance of the well-being of ciffzens. Further notural pustice generally requires that persons Rabie to be directly affected' by prepased administrative acts, seedsions or proceedings be given adequate aatice of whet & praposed so Shet they may be ig a postion fof to make ropreseatetion on their own behalfy (h} er te appear at a hearing or enquiry ff one is heldl: and fe} effective) to prepare thelrawn case and fo answer the case {ff aay} Wey hod tomect. Even when a State egency acts administratively, rules of Ratural fustice would apply. This is Me posiNon of the faw of the jand. The Respondents have fairly admitted that the recovery was the autcame of the audit report. The applicant was neither the supplied with the copy ofthe aud report Hor was Niere any opportunity te convince Nye aoetter fo Gee audit authority, Thus, the respondents made the recavery based an the audit report without giving gay opportunity before effecting such recovery. According te the applicant, although, he submitted representations, no reply was communicated to bint on his representations. it is the positive cose of the applicant Shot he Being not responsible in ony menner in the fixation of fis pay. reegvery would couse him financial berdship and, therefore, he is pratected by the low of the land in the case af Dharom Pal and Rafiq Masih {White Washer} fsupre}.
& Jn wew of te discusmlens made above, tha CLA. stands allowed by directing Ure respondents to consider bis representations submitted by die under Ganexore-d/8 series keeping in mind the parameters laid down in Me coe af Oheram Pal and Aafig Masih White Wesker) fevnra) and Based on the DoPaT Orevlor referred to above and communivate the decision fo whe applicant within o serad of six weeks from the date of receipt of a copy of this order, & G4 8 accordingly oliowed to the extent steted above. Parties ta beur thelr Ouyit COses, a, Similarly this Tribunal in OA Ne. G/2081 while disposing if at admission stege had given the follwing direction:
CLA. No, 237 of 2020 os "vanrd earned counsel for the applicant and Mr. BLP, Nayak, Jearned counsel for the respendents through WC. Me. 8. P, Noyak, learned counsel for the respondents objets ta the interim relief sought for in this case and submits Mat the OA has na merit. , Lemrned counsel far the applicant submits that the present grievance af the aaplicrat will ke addressed if an oppertunity i given to the apoiicant to file a comprehensive representation for disposal by Respondent No, 3. Rs submitted by learned counsel for the applicant on the basis of audit abjection, reepvery order hes bean passed. hereafter his representation vide Annesure SfL0 fos been relented by the authorities vide Annexure Afil. He further submits thet the respondents fave given relief ta similarly placed persans ay mentioned in Annexure ALT? series and ankrnits Mat directing may be given to Respandent No, 3 te dispose af the comprehensive representation to be fled dy the egoicant fa accomoane te guidelines og par Annexure APTS.
in these cireumsotences, ten (20) days tine fs given fo the applicant to file comprehensive represzatedon frant the date of reevipt of copy af Lae arder. After that Respandent No. 3 shall pass a speaking aad reasoned ortier ja avcordance with low within o period of one month from the date of receipt of comprehensive representation front the anpiicant, Wile deiag se the Respandent No. 3 shall also consider the guidelines vide Annexure Af16 and the fact as to whether siasiorly pieced persans at Annexure Afi? series hove been given relief in such CirewsmMstances:
As an interim measure OH the communication of speaking and reasoned order there shudi be ae recovery from the salary of the epplicant wde impugned order ot Annexure Af.
Learned counsel for the applicant unvertokes to communicate the copy of the order as well us the DA to Respandent No. 3.
Accordingly the OA is diaposed af Copy of Mis order be supplied urgently te learned counsel for both the sides."
id. This also seen that pursuant to the order of this Tribunal in OA No. {6S /AG19, the respondents have passed order dated OOF 2019 and splicant therein. Stroilarly in compliance £0 considered the case of the apy order date? OS.D1.8021] passed in OA No. Gf 2021 the respomients had passed order dated 16.02 2021.
OA Na. 237 af 2020 16.02. 9031 passed by the respondents ig extracted below:
SXRAA The job of Inspector af Posts is sot sedentry. it entails upon the Incumbent te supervies and monitor various aspects for smooth functioning of the office. The anpScant hes undoubtedly discharged the assigned higher respentibly with absolute and fil? responsiblity, Ne is responsible far the commissions gad omissions daring the period he afficiated af depector of Pasts Oiecioiogy) AMorcourr, te Aor' ive CAT, Cuttack fos issead directive to Respandent No. 3 to consider the representation of the applicant keeping in wew the gublelines contained § BOPT GM No BGfOseoLs. Est iPayd} deted 02.02.2016 annexed as Annexure Af16 to Nie sfaresaid DA. One of the abservation af Han'ble Supreme Court of india furnished thersis is that recoveries by the genployer seoukd be impermissifle by dow where payments have aistokenty bees made by the employer ia excess af their entitlement to ginplogees belonging to Class ~ fl and Class service for Group 'C' and Group Y services .
The observetion of aver payments of poy and atowanres, order of recovery and the oct of recovery ot o loter date when oo employee had already discharged Mor responsibilty subjecting Aimself ta difficulty and with sbsalute devotion end responsibility, withdrawal of offered emalumest:
witheut affording any scope te him defend himself or without referring the matter to the authority who issued orders to the apniicant iy tke betrayal te the appiicant for ne faudt of the applicant.
Therefore, in abedience to the direction af Nar'ble CAT, Cuttack in order doted OROLION posed in O4/260/0R/2021. fol Joleswar Kankor, presently working as Postmaster General, Berhampur Region, Rerhampur do hereby order thet the pay and adawances drawn in fovar of the applicant in the scale ef 93OO-24900 with Grove Pay of 3200 Jn Ray Band 2 of 8° Cpe for tre period from 16.22.2015 to 21422005 ane dt Me soafe of 44800 te Love! # af pey matriy of 3" CPC for the period from 8LOLPINS fo 25.03.2016, BSR 2NE te OLE 20TF, DL GR20T4 to 3E.0S 2007 ond SHIR 2RIS to SIGS S. ns somlcodie te Inspector of Pasts shall hold goar! ged I further order that oo recovery of already paid pey and alisvances shelf be effected. Amount glrendy recovered, if any, shall be refunded to the applicant.
These orders ore issued in abedivncs to the direction of the Han 'ide CAT Sutteck vide order in OA 26/09/2021 dated OSOL2081 #¢ is ane time decision specific to us cose and should net be quoted as precedent."
The relevant portion of the order dated aes ores ae oS om eo
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