Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Union Of India Through The Cabinet ... on 13 December, 2013
Central Administrative Tribunal Principal Bench OA No.1183/2011 MA No.1237/2013 Reserved on: 22.08.2013 Pronounced on: 13.12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) S.K. Chakraborty RJ-2060, Street No.27, Daffodil Apartments, Tughlakabad Extension, New Delhi. ...Applicant (By Advocate: Shri Sudhir Kathpalia) Versus Union of India through the Cabinet Secretary, Cabinet Secretariat, Research and Analysis Wing, 07, Bikaner House, Shahjahan Road, New Delhi 110 011. Respondents (By Advocate: Shri Sudhir Walia) O R D E R By Dr. B. K. Sinha, Member (A):
The instant Original Application is directed against the Memorandum No.14/105/90-Pers.9-6830 dated 17.03.2008 issued by the respondent canceling the resettlement grant with immediate effect.
2. The case of the applicant, in brief, is that he was an officer employed with Research and Analysis Wing (R&AW) under the Cabinet Secretariat. He was compulsory retired on 05.09.2007 on ground of security and was granted 12 months pay in lieu of re-settlement grant vide OM dated 17.12.2007. His PPO was released late in June, 2009. When he came to receive the pension, he found that his re-settlement grant equivalent to 12 months of pay had been deducted from his gratuity without having been given him prior notice or reasonable cause. He filed several representations for restoration of the same without having received any favourable reply. The applicant has assailed the impugned order on grounds of not having been issued even any notice amounting to blatant abuse of power and hence malice in law. He has further pleaded that granting him compensation allowance under Rule 135(3) of the R&AW (RC&S), 1975 [hereinafter referred to R&AW Rules] was a conscious decision of the respondents and it could not have been withdrawn unilaterally without having been given a notice to him and the opportunity being heard. Even the General Clauses Act, 1897 cannot be invoked for the reason that this does not grant them any power. He also pleads that the applicant has been undergoing great financial hardship on account of this withdrawal and the same should be restored to him.
3. The applicant has sought the following relief(s):-
A. Issue appropriate orders/directions with regard to quashing the impugned office order vide Memo No.14/105/90-Pers.9 dated 17.03.2008 passed by Respondent no.1 with immediate effect; and With due consideration of the Sixth Pay Commission, Resettlement grant should be provided to the Applicant in lieu of the Office Order vide OO No.790/Pers9/2007 amounting to Rs.3,32,217/- (Rs. Three Lakhs Thirty Two Thousand and Two hundred and Seventeen only).
That the Honble Forum may be pleased to grant the outstanding amount with interest @ 12% pendentalite.
Appropriate costs estimating Rs. 1,00,000/- (Rs.One Lakh) also must be awarded in the favour of applicant for both mental and financial hardship suffered.
Cost of litigation.
4. The respondent have filed a counter affidavit in which they have rebutted the averments of the applicant in its entirety. In the first instance, the respondents submitted that the order dated 06.09.2007 specifically states that the applicant may apply for exchange of entire pension due to him for lump sum which shall be equal to the commuted value of that amount admissible to a person retiring on attaining the normal age of superannuation under Rule 135(4) of the R&AW Rules, 1975. However, the applicant has not made any application in terms of Clause (3) of the order dated 06.09.2007 and has been granted benefits under Rule 135 (3) erroneously. He was not entitled to this benefit as he had never made any application for this grant earlier. When this mistake was noticed, the same was immediately corrected. The respondents have stated that the retiral benefits, as admissible to the applicant under Rule 135(2), are being extended to him and have strongly denied any suggestion to the effect that the order was either bad in law or was stricken with malice. In the second place, the applicant has suggested that it is an inalienable right of the administrative authority to correct the mistakes as and when the same are brought to its notice. Had the administrative authority not acted in canceling the legal benefit granted to the applicant once it has been brought to its notice, it would have been the case of gross misconduct on the part of the said authority. The respondents have further submitted that the applicant and three other persons were posted in Bangladesh where the applicant started accepting collaborating with enemy agents from ISI. He also started accepting money for recommending Visa to enemy agents i.e. the persons otherwise not eligible. He went to the extent of assaulting the officer of the Indian Embassy who dared to question one of the persons recommended visa by the applicant. There is no order available on file vide which he had been granted benefits under Rule 135(3) of R&AW Rules, 1975. The person who has been granted the visa has also retired. As such, the benefit has been erroneously granted to the applicant and is liable to be corrected as and when it is discovered. The respondents have also submitted that full opportunity has also been given to the applicant to be present and heard and these documents are present on record. Therefore, no right of natural justice had been violated.
5. The learned counsel for the respondents submits that owing to the covert nature of the respondent-organization which deals with the vial security concern, it is not advisable to go into all these facts. However, the basic principle remains the same that the mistake shall be corrected as and when the same is discovered. The learned counsel for the respondents further submitted that the respondents organization being a covert organization provides security cover to the National against the enmity agents. Thus, on this account a special status has been given to this organization protecting it from all activities as detailed by this Tribunal in the case of in the case of Prabhu Dayal Baitha versus Union of India & Others [OA No. 2612/2010 decided on 17.07.2013]
6. The applicant has filed a rejoinder application wherein he has submitted that once the grant has been allowed in exercise of powers under Rule 135(3), it cannot be revoked subsequently even if it had been on the basis of an error. The order dated 17.03.2008 passed by the respondents is a non-speaking order. Though the applicant has not challenged the order of compulsory retirement, the fact remains that the withdrawal of grant under Rule 135(3) of the R&AW Rules, 1975 is bad in law and reflects malafide. The applicant has subsequently also filed an amended OA stating that the discretionary powers of the respondent authority to grant resettlement benefit once exercised cannot be revoked and if it is revoked the same would be violative of Article 14 of the Constitution of India.
7. The original file relating to the withdrawal of grant was also produced by the learned counsel for the respondents and has been perused by us in some detail.
8. We have carefully perused the pleadings and such other documents as have been submitted by the rival parties in support thereof. We have also heard the oral submissions made by the learned counsel for the respective parties and on the basis of the above we feel that the following issues need to be settled in order to arrive at a decision in this case:-
Whether there has been any violation of the rules of natural justice by the respondent-organization?
Whether the grant once made under Rule 135(3) of the R&AW Rules, 1975 is not subject to withdrawal.
Whether the impugned order of the respondent suffers with any malice of law as alleged by the applicant?
What relief, if any, can be granted to the applicant?
9. In so far as the first issue is concerned, we think it necessary to go into the question of nature of the respondent-organization first. Admittedly this organization is covered by protection provided under Article 33 of the Constitution of India, sub-section 3 of which has restricted the activities of its members in the manner as provided hereunder:-
"3. (1) No member of an Intelligence Organisation shall,-
(A) be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political associations; or (B) be a member of, or be associated in any way with, or raise funds for, or hold office in, or function in any other manner for, any other society, institution, association or organisation that is not recognised by the central government as part of the Intelligence Organisation of which he is a member or is not of a purely social, recreational or religious nature; or (C) communicate with the press or publish or cause to be published any book, letter, pamphlet, poster or other document except with the prior permission of the head of the Intelligence Organisation; or (D) except for purposes of official duty, contact or communication with any person or any matter relating to functioning, structure, personnel or organisational affairs of the Intelligence Organisation of which he is a member;
(E) use the name of the Intelligence Organisation of which he is a member for purposes not authorised by the head of the Intelligence Organisation or in any other manner except for purposes relating to the official work and functioning of the Organisation itself.
EXPLANATION.-IF any question arises as to whether any society, institution, association or organisation is of a purely social, recreational or religious nature under clause (b) of this sub-section, the decision of the Central government thereon shall be final.
(2 No member of an Intelligence Organisation, shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed."
These restrictions were matter of challenge in Intelligence Bureau Employees Association Versus Union of India & Others, [1997-11-SCC-348] wherein the Honble Supreme Court has held these restrictions justified and in the interest of the Nation. These cases have been summed up in Prabhu Dayal Baithas case (supra) wherein the Tribunal has clearly held that where it is a question of national security versus some of the individual rights, the latter must yield place. The Tribunal has further held in this very case giving the nature of operation of the organization that where an officer who has been exposed as an Intelligence Officer or his becoming unemployable in the organization for reasons of security and disability or injuries received by him in the performance of his duties is liable to be retired compulsorily. The basic difference between these two conditions is that in the first case his security cover is blown as the enemy agents are always on the look out to discover the identity assumed by such agents and to blow the same. In such cases it becomes unemployable for reasons beyond his control. However, where the agent indulges in some activities beyond the call of his duties or suffers injuries, he becomes unfit for being deployed and is covered under Rule 135(1)(b) and is liable to be compulsorily retired. It clearly emerges that under Section 135(2) of the R&AW Rules, 1975, the employee is given the benefit of the entire service which he had rendered including the increments and promotion which he would have otherwise earned and his pension is fixed after having calculated the entire period, Rule 135(3) provides a special grant of 12 months salary as compensation whereas under Rule 135(4) all the benefits are converted into a lump sum which are some kind of silence money paid to such employees. Admittedly, the applicant was compulsorily retired in September, 2007 on serious charges of corruption while being posted on special assignment, colluding with the enemy and recommending visas to undeserving persons including the enemy agents and assaulting his own colleagues. The applicant did not challenge the order of compulsory retirement and was due to superannuate in February, 2008. The respondents order dated 06.09.2007 clearly enunciates that the retirement benefits of the applicant shall be confined to Rule 135(2). For the sake of clarity, the relevant portion of the order reads as under:-
3. Shri Chakrabortys pension and other retirement benefits under Rule 135(2) will be calculated by Director of Accounts, Cabinet Secretariat (SW), New Delhi on his application. This order further states that in case he wants benefit under Rule 135(4), he may submit an application for the same. Admittedly, the applicant has not made any application and still he has been given the benefit under Rule 135(4) of the R&AW Rules, 1975. However, this order has not been challenged by the applicant in the instant Application. In this order there is no mention of any benefit being granted under Rule 135(3). We have carefully perused the official file and have not found that there is any order at any place in the file sanctioning the benefit under Rule 135(3) of the R&AW Rules, 1975 to the applicant either one note sheet or on the correspondence side. We have also noted the endorsement of the order of compulsory retirement with regard to fixation of payment of DCRG and other benefits wherein there is no mention of benefits under Rule 135(3). The case of the applicant had been examined initially by a Committee comprising three high level officers namely Special Secretary (N), Joint Secretary (Pers.) and Joint Secretary (SA) which had recommended his compulsory retirement under Rule 135 of the R&AW Rules, 1975. It is obvious that this grant had never been requested to be given to the applicant ab initio. This fact was clearly recorded on the file that the Committee had not recommended nor was the applicant granted any re-settlement grant under Rule 135 (3) of the R&AW Rules, 1975. The counter affidavit of the respondents further states that it is further denied that the applicant was not aware of the orders passed on 1703.2008, as the said order was endorsed to him. The applicants representation was duly examined by the competent authority, and the reply of the same was given to the applicant. The application of the applicant for re-settlement grant, was examined and the same was rejected vide Memorandum dated 29.04.2010.
10. It does appear from the perusal of Annexure A-6, that the applicants claim was examined but had not been found admissible to him. The applicant has brought to our notice that he had filed the instant OA on 17.02.201 where he had challenged the order passed by the respondent. However, the amendment has been allowed by this Tribunal vide order dated 17.05.2012.
11. In the circumstances above, we do not find any substance in the contention of the applicant that the rule of natural justice has been violated in any case. We also find that the applicant was in know of the orders of deduction and that his representation had been fully considered as would appear from the file. Therefore, this issue is decided against the applicant.
12. In so far as issue no. 2 is concerned, the applicant has relied upon two decided case namely Kalabharati Advertising versus Hemant Vimalnath Narichania and Others [2010 (9) SCC 437 (Paras 25-30)] and the decision of this Tribunal in the matter of Smt. Anita Srivastava versus Government of NCT of Delhi and Others [OA No. 820/2010 decided on 15.12.2010 (Paras 20-22)]. Further, the applicant has cited the decision of the Honble Apex Court in the matter of S. Pratap Singh versus State of Punjab [AIR 1964 (SC) 72 (Paras 5 & 28)] wherein it has been categorically held that no administrative order can be allowed to stand if it is obtained by fraud. The applicant has also relied upon the decision of this Tribunal in the matter of A.K. Verma versus Union of India & Others [OA No.2799/2009 decided on 06.05.2010] wherein the Tribunal duly took into account various precedents on powers of administrative bodies and the duty of discretion and exercise thereof.
13. In this regard, the respondents have relied upon Section 21 of the General Clauses Act, 1897, which states as follows:-
21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.
Where, by any Central Act or Regulation, a power to issue notification, orders, rules or bye-laws is conferred, then that power, includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. However, the respondents have submitted that the General Clauses Act, 1897 would not apply to the facts of the instant case. In the case of Gulam Abbas & Others versus State of U.P. & Others [1982(1) SCC 71] a similar contention had been made before the Honble Supreme Court which opined that the power to rescind ones decision is an integral part of the power of every decision making authority except where otherwise provided.
14. In the case Kalabharati Advertising versus Hemant Vimalnath Narichania and Others (supra), the dispute related to hoarding which had been fixed by the appellant in the Society. In that case the Municipal Corporation had withdrawn the earlier order approving the erection. The Honble Supreme Court in that case has held that review is a statutory remedy and the Corporation could not have passed an order recalling the order passed by it earlier and reviewing the same without assigning any reason. It was obligatory on the part of the Corporation to explain as to what was the material on record on the basis of which the earlier order has been changed. The Honble Apex Court thus ruled that the order of withdrawal was vitiated on account of not recording reasons and violating the principles of natural justice.
15. In the instant case, the facts are otherwise. The order of release of benefit under Rule 135(3) of the R&AW Rules, 1975 had been erroneously passed and beyond authorization. It was corrected as and when it came to notice.
16. In the case of Smt. Anita Srivastava versus Government of NCT of Delhi and Others (supra) the applicant was appointed as teacher, was confirmed and accorded Senior Scale as Trained Graduate Teacher. The applicant applied for grant of CCL but she was asked to resume her duty when the general election came up. The respondents refused to sanction the CCL on this account. In this case, this Bench of the Tribunal had taken the view that initiation of departmental proceedings was to be ordered against her in case she did not resume duty within two days of the receipt of that memo. Once administrative discretion had been exercised by the competent authority in that manner, it was not open to retrace and deny the sanction of second ACP to the applicant for want of regularization certificate, particularly when the office noting above quoted also categorically averred that no earned leave was due to the applicant.
17. Here again, as stated above, the facts are entirely different and this order would not be applicable to the facts of the instant case. The applicant herein has been changed for misconduct of much graver nature including compromising the security of the State.
18. In the case of S. Pratap Singh versus State of Punjab (supra), the applicant, who was a Civil Surgeon and had been granted leave preparatory to retirement, was ordered to placed under suspension and a departmental enquiry was initiated against him jut prior to his retirement. He succeeded in proving the malafide against the Chief Minister. Therefore, the Honble Court was pleased to order dismissal of the appeal on the ground that the impugned orders were made with ulterior purpose of causing harassment and loss of reputation to the appellant as he had been instrumental in making public allegations tending to bring the Chief Minister of the State into disrepute.
19. Now we take up the third of the issues that what relief could be granted to the applicant. The Learned Counsel appearing for the applicant has vehemently argued that the benefit under Rule 135(3) had been correctly granted looking into the extenuating circumstances leading to illegal deprivation of the service of the applicant without affording to him the rights of natural justice. This benefit could not have been recovered without having issued notice and passing an order after having given the applicant the due opportunity of having been heard and representing his case. We have, however, arrived at the conclusion in respect of issues 1 and 2 that the this benefit had never been ordered to be given to the applicant. It was, in fact, given as a result of mistake made in the office while calculating the benefits and was not the result of validly issued orders. We have also seen the averment of the applicant that he was not in know of the developments and was not given the opportunity of representing his case is not justified by facts. In fact on examination we find the applicant was aware of this development and that his application was duly examined, the final order being passed after the due application of mind.
20. Now we take up the issue that even if having erroneously given the benefit could it have been realised. The Honble Supreme Court in the case of Shyam Babu Verma v. Union of India [(1994) 2 SCC 521] had set the law that even if the arrears had been wrongly paid the same were not to be recovered subsequently when the mistake was realized as the recipient was likely to have spent it. This was subsequently supported by a number of decisions namely in Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18], State of Bihar v. Pandey Jagdishwar Prasad [(2009) 3 SCC 117] and Yogeshwar Prasad and Ors v. National Institute of Education Planning and Administration and Ors. [(2010) 14 SCC 323]. However, in the case of Chandi Prasad Uniyal & Others vs State of Uttarakhand & Others, the Honble Supreme Court categorically stated that it had not laid down any law where the amount paid in excess cannot be recovered except in cases where fraud or misrepresentation is involved. The Honble Supreme Court has held in no ambiguous terms:-
14. We are concerned with the excess payment of public money which is often described as tax payers money which 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.
21. Taking this very argument a little forward we find that in the instant case there appears to be an invisible hand at work. Even the respondent organization is a loss to know that how the benefit U/S 135(3) got to be paid when it was not covered in the orders. The order of compulsory retirement clearly states: [A/2]. It is clearly emerges from above that what had been sanctioned was benefit U/S 135(2) and not U/S 135(3). We have carefully gone through the entire file and find that even the respondent authorities are not in a position to determine that how the benefits U/S 135(3) were sanctioned. It is also true that benefits U/S 135(4) have been granted to the applicant without his having applied for the same. We are, however, prepared to overlook this because they represent what is within lawful claims of the applicant and could not have been denied to him. We leave this issue at this stating the there is definitely an element of fraud at play with the applicant being the beneficiary though we do not hold that it was the applicant who engineered this in absence of pleadings to that effect.
22. However, the Honble Supreme Court has laid down very rigid standards in cases of genuinely inadvertent excess pay not involving fraud or misrepresentation. This is a case where fraud could be reasonably suspected. This money flows out of the State Exchequer. No expenditure could be incurred either from the Consolidated Fund of India or from the Public Accounts Fund U/A 266(1) or 266(2) are to be spent under authorization from the Parliament only in Public Interest. We wish to make it plain that the State Exchequer is not like an ever replenished gravy train where any smart operator can dip his hands and partake himself to his fill howsoever smart he may be. It is only to be spent in public interest for the purposes ordained and for none other. Making unauthorized payment to a person charged with compromising vital national security interests is certainly not a public purpose.
23. In conclusion we find that all the three issues have been answered against the applicant. We further hold that the applicant has failed to prove his case in respect of any of the issues. We, therefore, dismiss the OA without costs.
(Dr. B. K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/