Central Administrative Tribunal - Cuttack
K C Roul vs D/O Post on 19 May, 2022
1 OA 763/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
No. OA 763 of 2015
Present: Hon'ble Mr.Swarup Kumar Mishra, Judicial Member
Kartik Chandra Roul, aged about 47, S/o Late Sanyasi Ch. Roul,
permanent resident of Vill/PO-Ambagadia, Via/PS-Baisinga, Dist-
Mayurbhanj, at present working as GDSMC, Ambagadia BO under
Mayurbhanj Division.
......Applicant
VERSUS
1. Union of India, represented through its Secretary Cum Director
General (Posts), Dak Bhawan, New Delhi-110001.
2. Chief Post Master General, Odisha Circle, At/Bhubaneswar, PO-
Bhubaneswar PO, Dist-Khurda, Pin-751001.
3. Supdt. Of Post Offices, Mayurbhanj Division, At/PO/PS-
Baripada, Dist-Mayurbhanj-757001.
......Respondents
For the applicant : Mr.T.Rath, counsel
For the respondents: Mr.M.R.Mohanty, counsel
Heard & reserved on : 10.5.2022 Order on : 19.05.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M. It may be stated that in letter under Annexure A/5 dated 2.8.2012 it was instructed that during verification of fixation of TRCA of GDS officials as on 1.1.2006 the DA(P) Cuttack has noticed and intimated vide letter dated 24.7.2012 that overpayments have been made to many of the GDSs including 2 OA 763/2015 the applicant for the period 1.1.2006 to 30.9.2009 and accordingly direction was issued to recover the excess payment erroneously made to the applicant along with other GDSs named in the said letter. The applicant submitted representation and thereafter approached this Tribunal in OA 1018/2014 which was disposed of on 9.1.2014. The respondents considered the representation and the outcome of consideration was communicated to the applicant under Annexure A/10 dated 31.3.2015. Being aggrieved by the aforesaid orders the applicant has filed the instant OA inter alia praying as under :
"(a) To quash the orders contained in Annexure A/5 and A/10.
(b) The respondents may be directed to restore the TRCA of the applicant in the TRCA slab of Rs.3635-65-5585/- and refund the amount already recovered.
(c) And pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case and allow the OA with cost."
2. According to the applicant, the impugned orders are not maintainable and sustainable being opposed to the order issued by the DGPT under Annexure A/1 dated 9.10.2009, letter under Annexure A/3 dated 4.1.2010 and letter under Annexure A/4 dated 17.5.2012. There is no provision of recovery of TRCA even in the event of drop of work load in any GDS post as per the DGPT letter dated 11.10.2004. The applicant was paid TRCA for the work load over 3 hours 45 minutes since 1.1.1996 whereas his TRCA has been 3 OA 763/2015 reduced to the slab of work load less than 3 hours 45 minutes without taking into account the total period of duty performed by him. Further, it has been submitted that the distance travelled by the applicant was 9 Km previously which is increased to 10 Kms after shifting of the BO to the house of the present GDSBPM but the distance has been reduced from 10 to 8 Kms theoretically without correctly assessing the true fact of the matter. The duty period (waiting time) for the opening of BO Bag at A/C office, checking of the contents thereof, closing of BO bag for dispatch to BOs has been omitted while calculating the period of work. Had the respondents allowed opportunity to the applicant while coming to the conclusion relating to working hour and distance, the respondents would not have reduced the TRCA of the applicant. It is the case of the applicant that the recovery has been ordered without adhering to the basic principle of natural justice and accordingly it has been submitted that since the payment was not due to his fault or misrepresentation by application of the law laid down by the Apex Court in the case of State Of Punjab & Ors -vs- Rafiq Masih (White Washer) [Civil Appeal No. 11527 of 2014] recovery is bad in law.
3. The sum and substance of the case of the Respondents in the Counter is that as per the order of DGPT dated 4.1.2010 which was circulated vide letter dated 12.1.2010 (Annexure R/1) the Time Related Continuity Allowance (in 4 OA 763/2015 short TRCA) of GDS was required to be revised from 1.1.2006 based on the workload as on 1.1.2006. The workload statistics of the BO in question as on 1.1.2006 was collected to be only 2 hours 56 minutes. In terms of the letter of DGPT dated 9.10.2009 which was circulated vide letter dated 16.10.2009 (Annexure R/3), the TRCA based on the workload statistics was prepared and sent to the Directors of Accounts (Postal), Cuttack for verification after which the TRCA of the applicant based on the workload statistics was refixed at a slab of Rs.3620/- in the revised scale of Rs.2870-50-4370/-. Accordingly the overpayment to the tune of Rs.18,057/- made to the applicant for the period from 1.1.2006 to 30.9.2009 was directed to be recovered from the applicant vide letter dated 24.7.2012 (Annexure A/5) on the basis of the undertaking furnished by the applicant at the time of fixation of TRCA to the effect that any excess payment that may be found to have been made as a result of incorrect fixation of TRCA or any excess payment detected in the light of discrepancy if any, noticed subsequently will be refunded by him to the Government either by adjustment against future payment due to him or otherwise (Annexure R/6). It is the contention of the respondents that the workload of the applicant was over 3 hours 45 minutes when the workload was calculated on Foot Beat i.e. 1 hour for covering a distance of 4 Kms. But consequent upon conversion of Foot Beat to Bicycle Beat the workload comes down to 1 hour for covering a 5 OA 763/2015 distance of 8 Kms. So the workload of the applicant has been reduced to the extent of 2 hours 56 minutes and accordingly the TRCA has been fixed in terms of the policy decision taken by the Government relating to fixation of TRCA based on the workload. In para 2.1 of the order under Annexure A/1 dated 9.10.2009 it has been made clear that the Time Related Continuity Allowance in respect of GDSs engaged up to 31.12.2005 shall be fixed in the corresponding stage w.e.f. 1.1.2006 in the respective TRCA slab which has further been clarified by Govt. of India in letter under Annexure A/3 dated 4.1.2010 that the TRCA has to be fixed based on the workload as on 1.1.2006. It has further been stated that rule regarding fixation of Time Related Continuity Allowance under Annexure A/11 is applicable only in case of drop in the workload as a result of triennial review as specified in para 3(i) of the said Annexure and it is not applicable for fixation of Time Related Continuity Allowance of GDS while implementing the recommendation of Shri R.S.Nataraj Murti Committee. Since nowhere in the Directorate's letter dated 9.3.2009 it is mentioned for no recovery in case of drop in workload of any post, thus the decision taken under Annexure A/5 is just and proper. The applicant submitted representation against such decision and the highest authority of the Circle considered the points raised by the applicant but did not find any breach in the decision making process of the matter requiring interference on 6 OA 763/2015 the same and communicated the decision in a well reasoned order to the applicant under Annexure A/10.
4. The applicant has filed rejoinder and the respondents have also filed Additional Counter and the points mentioned therein have also been taken into consideration.
5. Learned counsels appearing for both sides have reiterated the stand taken in their respective pleadings and having heard them at length perused the records.
6. This Tribunal is conscious that judicial interference in the matter in hand is limited but, at the same time, this Tribunal cannot close its eyes to the fact that reduction of pay, in the instant case TRCA, has direct nexus to the life and livelihood of a GDS employee. Record is conspicuously silent on the point asserted by the applicant the distance travelled by the applicant was 9 Kms previous which is increased to 10 Kms after shifting of the BO to the house of the present GDS BPM and that, the duty period has been calculated without taking into consideration the waiting time for opening of BO Bag at A/C office, checking of the contents thereof, closing of BO bag for dispatch to BOs. Fair play in all action is sine qua non. Had the respondents given an opportunity to the applicant to have his say before effecting reduction in TRCA based on Kms and working time, the applicant would not have complained that any injustice 7 OA 763/2015 is done to him in the decision making process of the matter. The counter is also silent as to on what basis the respondents reached the conclusion of reduction of Kms and working hour of the applicant leading to curtailment of TRCA. Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position to make representation on their own behalf or to appear at a hearing or enquiry (if one is held); and to effectively prepare their own case and to answer the case (if any) they had to meet. Even when a State agency acts administratively, rules of natural justice would apply. Fair play is part of public policy and a guarantee for justice to citizens. In our system of Rule of Law, every social agency conferred with power is required to act fairly so that social action would be just, and there would be furtherance of the well-being of citizens. Rules of natural justice apply to administrative action and the decision to exclude a section of the employees without complying with requirements of natural justice was bad [K.I. Shephard & Ors. Vs Union of India & Ors, 1988 AIR 686]. In the case of G. Jaisinghani Vs. Union of India & Ors., AIR 1967 SC 1427, the Constitution Bench of the Hon'ble Apex Court observed that "In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is 8 OA 763/2015 based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law." In view of the facts and law stated above, this Tribunal is of the considered opinion that the reduction of TRCA based on the mileage and working hour without considering the facts recorded above and without giving any opportunity to the applicant needs reconsideration/review after giving due opportunity to the applicant, which the respondents/competent authority shall do within a period of 60 days from the date of receipt of a copy of this order.
7. Now coming to the order of recovery of the differential amount erroneously paid to the applicant is concerned, it is seen that the respondents vide order under Annexure A/5 dated 2.8.2012 seeks to recover the TRCA paid to him for the period from 1.1.2006 to 30.9.2009. It is not the case of the respondents that the payment was due to any fault or misrepresentation on 9 OA 763/2015 the part of the applicant. The applicant is a GDS. The relevant portion of the decision of Hon'ble Apex Court in the case of Rafiq Masih (supra) is as under :
"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, 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.
(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."
Again the Hon'ble Court in the case of Thomas Daniel Vs State of Kerala & Ors. Civil Appeal No. 7115 of 2010 disposed of on 2 May, 2022 was pleased to hold that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order 10 OA 763/2015 which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.
8. In view of the facts and law this Tribunal is of the view that the recovery to the tune of Rs. 18,057/- from the TRCA of the applicant, who is a GDS, being no fault on his part, would cause undue hardship including financial difficulty. Therefore on the said ground and on the ground of equity the order of recovery under Annexure A/5 dated 2.8.2012 in so far as the applicant is concerned, is quashed. Respondents are directed to refund the said amount within a period of one month from the date of receipt of a copy of this order.
9. In the result OA is allowed by leaving the parties to bear their own costs.
(SWARUP KUMAR MISHRA) MEMBER (J) I.Nath