Central Administrative Tribunal - Allahabad
Surendra Kumar vs M/O Communications on 4 November, 2022
Open Court
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 1016 of 2012
Allahabad this the 04th day of November, 2022
Hon'ble Mr. Justice B.K. Shrivastava, Member-J
Surendra Kumar, Retired Postal Assistant, 15, Mohan Vihar (Roshan Vihar)
Post Office Lohvan, Mathura.
Applicant
By Advocate: Mr. Rakesh Verma.
Vs.
1. Union of India through the Secretary, Ministry of Communications and
I.T. Department of Posts, Dak Bhawan, New Delhi.
2. Senior Superintendent of Post Offices, Mathura Division, Mathura
(U.P.).
Respondents
By Advocate: Mr. Himanshu Singh.
ORDER
Shri Rakesh Verma, Advocate is present for the applicant. Shri Himanshu Sing, Advocate is present for the respondents.
2. Final argument heard.
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3. It is submitted by the applicant counsel that only claim of refund the recovery amount is required to be considered. After the retirement of the applicant recovery of Rs. 59265/- has been made on 02.11.2011 as excess payment.
4. The counsel for the applicant drawn attention towards the para No. 4 and para No. 7 of the counter reply which are as under:-
"4. That later on, it was noticed that 2nd financial up- gradation under MACP to the applicant has been given wrongly. As per latest instructions of the department, the promotee can be granted 3rd financial up-gradation after completion of 30 years of service. The applicant had already been granted two promotion in twenty years of service i.e. one promotion from Group 'D' to P.A. cadre and 2nd promotion of TBOP. Hence he was eligible only for 3rd financial up- gradation under MACP Scheme on completion of 30 years service w.e.f. 31.03.2012 or from the date he was completed 10 years service from his promotion under TBOP w.e.f. 06.08.2004 + 10 years service i.e. he will be eligible for 3rd financial up-gradation on 06.08.2014 while date of retirement was due on 30.04.2011. Therefore, the applicant was not eligible for 3rd financial up-gradation under MACP. "
7. That as regards recovery of over payment from the applicant is concerned, it was made due to wrong promotion of the applicant which was not admissible to him as per rules on the subject. Each and every Govt. Servant is well known about his pay and allowances paid to him each month. Wrong paid amount can be recovered from the pay and allowances of the Govt. servant at any time. Consequently a sum of Rs. 59265/- being excess paid amount 3 have been ordered to be recovered from the applicant which was recovered on 02.11.2011."
5. Therefore, it appears from the aforesaid paras that the applicant was retired on 30.04.2011. The recovery of amount of Rs. 59265/- has been made which recovered on 02.11.2011. It is mentioned by the respondents in para No. 7 of counter reply that wrong promotion was given to the applicant, therefore, the amount which was paid, is recoverable from the applicant.
6. The promotion granted was withdrawn by respondents but nowhere it is stated that the applicant having any role in this fixation. The applicant did not play any part in this action of the department. The department grant the 3rd promotion to the applicant which was withdrawn. The responsibility of the department is clearly made out.
7. The counsel for the applicant submitted that the applicant is a Group 'C' employee and as per Judgment of Hon'ble Supreme Court dated 18.12.2014 passed in State of 4 Punjab & Ors. Vs. Rafiq Masih reported in [2014] 8 SCC 883 the recovery cannot be made from the Group 'D' employee and cannot be made after the retirement of the employee. It is contended by the counsel that it is admitted position from the record that applicant was a Group 'C' employee. The respondents also admitted that the recovery has been made after his retirement. Therefore, that amount should be refund.
8. On the other side, the counsel for the respondents only argue that if the Rafiq Masih case is applicable then the recovery cannot be made and if the case is not applicable then the department was right to recovered the amount. No specific argument has been made by the respondents' counsel as to whether the aforesaid case is applicable or not in the case of applicant. The counsel leave upon the court whether the case is applicable or not? while it was the duty of counsel to assist the court.
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9. In view of this court, the para No. 12 of the aforesaid judgment is relevant which 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.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
10. It is clear from the para 12 that the recovery cannot be made from Group 'C' employee and also cannot be made from retire servant if the Government Servant is not commit any fault. In this case the applicant was not guilty of furnishing any incorrect information, which has led the 6 concerned competent authority, to commit the mistake of making the higher payment to the applicant. The payment of higher amount was not on account of any misrepresentation made by applicant nor was it on account of any fraud committed by applicant. Any participation of the applicant, in the mistake committed by employer is totally ruled out.
11. Therefore, in view of this court, the present O.A. is squarely covered with the law laid down to the aforesaid case of Rafiq Masih. The department wrongly recovered the amount from the applicant. The amount was given to the applicant because of mistake of department, than applicant cannot held liable for aforesaid excess payment.
12. Therefore, the O.A. is allowed. It is ordered that the respondent department will refund the amount of Rs. 59265/- to the applicant within 6 months from today with 7 the simple interest @ 6% per annum from the date of 02.11.2011 and till the date of payment to the applicant.
(Justice B.K. Shrivastava) Member (Judicial) /Shakuntala/