Central Administrative Tribunal - Allahabad
Rajendra Prasad Iv vs M/O Communications on 15 March, 2023
OA No. 610 of 2019
Reserved
(On 03.03.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated: This the 15th day of March 2023
Original Application No. 610 of 2019
Hon'ble Dr. Sanjiv Kumar, Member (A)
Rajendra Prasad IV, a/a 60 years, S/o late Narain Prasad, R/o
Village Ajaharhi (Tirpat) and Post Rupetha, District Chandauli.
. . .Applicant
By Adv : Shri B.N. Singh and Smt. Shyama Singh
VERSUS
1. Union of India through its Secretary, Ministry of
Communication (I&T), Sansad Marg, Dak Bhawan, New Delhi.
2. The Sr. Supdt. Of Post Offices, East Division, Varanasi.
3. Sr. Post Master, East Division, Varanasi.
4. Assistant Account Officer, GPF IV Cell, Office of Director of
Postal Accounts, Lucknow.
. . .Respondents
By Adv: Shri Vidyapati Tripathi
ORDER
This OA, under Section 19 of the AT Act, 1985 is filed seeking relief to direct the respondents and call for record and set aside impugned order dated 05.03.2018 (Annexure No. A-1) and direct the respondents to refund the recovered amount of Rs. 1,65,853/- and pass any other orders and award costs.
2. The facts of the applicant is that he was appointed on 26.09.1987 and retired from service on 31.12.2018. He was regular employee and as per GPF (CCS) rule, GPF amount was deducted Page 1 of 9 OA No. 610 of 2019 and deposit in his GPF account No. PLW 023502 and as per rule an employee could withdraw ¾ of the amount of accumulation of the GPF account as per his requirement and department always informed that balance at the credit of the employee and accordingly the applicant also withdrew on several occasions. He was never informed of any mistakes in the account of his GPF. As per impugned order the respondents are showing that during the year 1998 - 99 the subscription and refund was Rs. 13,600/- but wrongly it was written as Rs. 46,000/- resulting in over payment of Rs., 32,400/- since 1998 - 99 the applicant has withdrawn the amount from his GPF account on several occasions, but he was never informed about wrong entries of overpayment to him. He further avers that overpayment was only Rs. 32,400/- but recovery is being ordered for Rs. 1,65,853/- which is totally illegal and wrong. As the applicant has not played any fraud regarding entry the said amount cannot be recovered from him as he is not responsible for mistake and applicant should not be forced to suffer the losses due to mistake of the department. The order dated 05.03.2019 for recovery was passed without any show cause notice and opportunity of hearing to the applicant. He says that there are decisions of the Hon‟ble Apex Court that recovery cannot be made against the retired employee, if he has not played fraud or misrepresentation and admittedly in the present case there is no such instance, hence, recovery is untenable. So he prays to quash the order dated 05.03.2018, refunding the amount of Rs. 1,65,853/- to him. Page 2 of 9 OA No. 610 of 2019
3. Respondents have filed counter affidavit on 09.12.2019 wherein they say that Shri Rajendra Prasad was initially appointed on 26.08.1987 and retired on 31.12.2018. While processing his final claim of GPF it was found that he had taken excess Rs. 32,400/- from his GPF account during 1998 - 99 and hence, a recovery was ordered of the said excess amount with penal interest which was arrived at Rs. 1,65,853/-. As in the year 1998 - 99 the subscription was wrongly written as Rs. 46,000/- in place of Rs. 13,600/- and the official should have intimated about the mistake to his office, but the same was not done. The respondents further state that it is mentioned in every GPF balance sheet every year that the balance is subject to future adjustment, if any. If the same has been done in time, the minus balance figure would have been adjusted much earlier. The above information is based on Para (3) as per rule 11 of Government of India decision 5 (3) (Annexure CA-1), which is rule 11 on interest on GPF and para 7 reads as under:-
"(7) In case a subscriber is found to have drawn from the Fund an amount in excess of the amount standing to his credit on the date of the drawal, the overdrawn amount, irrespective of whether the overdrawal occurred in the course of an advance or a withdrawal or the final payment from the Fund, shall be repaid by him with interest thereon in one lump sum or in default, be ordered to be recovered, by deduction in one lump sum, from the emoluments of the subscriber. If the total amount to be recovered is more than half of the subscriber‟s emoluments, recoveries shall be made in monthly instalments of moieties of his emoluments till the entire amount together with interest is For this sub-rule, the rate of interest 1 to be charged on overdrawn amount would be 2 /2% over and above the normal rate on Provident Fund balance under subrule (1). The interest realized on the overdrawn amount shall be credited to Government account, under a distinct sub-head "Interest on overdrawals from Provident Fund" under the Head "049-Interest Receipts-C-Other interest receipts of Central Government -Other Receipts".
4. Hence, the excess amount of Rs. 32,400/- alongwith interest as in rule 11 making it Rs. 1,65,835/- was ordered for recovery from 1998 - 99 to December 2018 which resulted minus balance till his retirement. It is the duty of the subscriber to intimate the mistake to Page 3 of 9 OA No. 610 of 2019 the office, which was not done by the subscriber. As the department has only recovered the excess amount paid with the rule existing for interest, recovery was correct. Hence, the OA should be dismissed.
4. In the rejoinder affidavit dated 20.10.2021 the applicant reiterated his stand in his OA.
5. Learned counsel for the applicant relied upon several judgments. In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, Hon‟ble Supreme Court has been pleased to observe as under:-
"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.
6. In the case of Bhanwar Lal Dave vs. State of Rajasthan and others reported in 2012 (6) SLR 650, the Hon‟ble Jaipur High Court has observed as under:-
"13. Apart from above, even if it is assumed that the disputed amount has been paid in excess, the same has not been paid on Page 4 of 9 OA No. 610 of 2019 account of any fraud or misrepresentation of the petitioner. Petitioner retired in April, 1999. He is now 73 years of age. He is suffering from Asthma and other incurable diseases as mentioned by him in his reply. His pension case was settled and he was paid all pensionary benefits including GPF amount long back. The Hon'ble Apex Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others, (2009) 3 SCC 475 held, that in a catena of decisions, a relief has been granted against recovery of excess payment of emoluments/allowances, if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee. Para Nos. 57 and 59 of the judgment are reproduced as under:
57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) 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, which is subsequently found to be erroneous.
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation of fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
14. It is not a case of the respondents that the petitioner made any misrepresentation or fraud and got some amount in excess, which is being recovered by them from him. The Respondents Nos. 1 to 4 in their reply to writ petition have mentioned that in the ledger sheet of the petitioner, the clerk, by mistake, debited Rs. 1,869/- in place of Rs. 18,696/-, therefore, in view of ratio laid down by Hon'ble Apex Court in Syed Abdul Qadir and Others Vs. State of Bihar and Others (supra), the petitioner is entitled to get relief against recovery of so-
called excess payment after so many years.
15. In view of above discussion, writ petition is allowed. Action of the respondents of recovery of disputed amount from the petitioner in pursuance of their letters dated 16.07.2003 (Annexure-3) and 06.07.2004(Annexure-5) is quashed and set aside and respondents are restrained from recovering the said amount from the petitioner." Page 5 of 9 OA No. 610 of 2019
7. Not only this, the Hon‟ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
"8. We are of the considered view, after going through the "various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered."
8. In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon‟ble Apex Court has also been pleased to observe that "opportunity of hearing is to be given to the delinquent before passing an order".
9. In the meantime respondents have filed their written arguments on 24.01.2023. The case was posted under the heading „For being spoken to‟ on 03.03.2023.
10. Shri B.N. Singh, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondents were present and heard.
11. In the written arguments dated 24.01.2023 the respondents re- emphasized the position of Rule 11 (7) of Provident Fund, as quoted below:-
"(7) In case a subscriber is found to have drawn from the fund an amount in excess of the amount standing to his credit on the date of the drawal, the overdrawn amount, irrespective of whether the overdrawal occurred in the course of an advance or a withdrawal or the final payment from the fund, shall be repaid by him with interest thereon, in one lumpsum, or in default, be ordered to be recovered by deduction in one lumpsum from the emoluments of the subscriber. If that total amount to be recovered is more than half of the subscriber‟s emoluments recoveries shall be made in monthly instalments of moieties of his emoluments till the entire amount together with interest, is recovered. For this rule, the rate of interest Page 6 of 9 OA No. 610 of 2019 to be charged on overdrawn amount would be 2 1/2% over and above the normal rate of Provident Fund balances under sub-rule (1). The interest realised on the overdrawn amount shall be credited to Government account under a distinct, sub-head "Interest on overdrawal from Provident Fund"
12. They argued that the competent authority is empowered to recover the amount which was drawn by the employee within six months from the date of retirement. In the preset case the competent authority initiated the proceedings within six months from the date of retirement of the applicant and there is no illegality or infirmity in action for recovery of excess amount. The respondents rely on the judgment of Hon‟ble Supreme Court in the case of High Court of Punjab and Haryana vs. Jagdev Singh decided on 29.07.2016. In which the Hon‟ble Apex Court has held that, "recovery should be made in reasonable instalments and directed that the recovery be made in equated monthly instilments spread over a period of two years". So the present case the competent authority had rightly passed the impugned order and there is no illegality or infirmity in passing the impugned order. As under Provident Fund rule there is provision to recover the excess amount from the employee. The respondents further rely on the judgment of in OA No. 1786/2016 - Rahul Singh vs. M/O Defence dated 09.08.2017 in which it has been held that as the applicants GPF account has got credited by an illegitimate amount of Rs. 3,05,984/- which comprises of the principal amount of Rs. 19,800/- + interest thereon at GPF applicable rates. The respondents have simply corrected the GPF account of the applicant and paid to him his legitimate GPF balance of Rs. 40,78,860/-. As the judgment of Hon‟ble Supreme Court in the case of Rafiq Masih (Supra) and Page 7 of 9 OA No. 610 of 2019 Shitla Prasad Nagendra [(2001) 6 SCC 591] are not applicable to the case of the applicant given its unique facts and circumstances. The ratio of law laid down in these two judgments basically puts an embargo from recovery from a government servant towards any payment made to him due to departmental mistakes and without any misrepresentation on the part of the official concerned. As the said judgment provide a special protection to the retired officials as well as to those, who are retiring in one year, against any recovery from them. But as in OA 1786/2016, pertains to GPF account, which has been wrongly credited with an amount which infact had been paid to him as GPF advance, this was a simple accountal error, which has been detected at the time of final settlement of the retiral dues of the applicant and has been corrected accordingly. So the said case clearly makes a distinction in the case of GPF from the general case of Rafiq Masih, which is regarding pay fixation or any other similar cases. The respondents further rely on the order of Hon‟ble Madhya Pradesh High Court in the case of Kashi Yadav vs. State of M.P and other (WP No. 13699/2010), wherein the Hon‟ble High Court has held as under:-
"3. We have gone through the records and we find that in the case of Rafiq Masih (supra) the law laid down by the Supreme Court pertains to recovery from certain class of employees on account of wrong pay-fixation or excess payment being granted by the department erroneously or due to mistake and debars the department from effecting recovery from the pensionary benefit or salary of employee. The said principle of law will not apply in the case of recovery from the provident fund dues of an employee. Provident fund contributions are maintained as per statutory rule and, if advances are withdrawn from provident fund as per rules, the recovery of loan or advance given in permissible. In the present case, as recovery is made in accordance to rules governing the provident fund scheme, the principle laid down in the case is Refiq Masih (supra) will not apply and as recovery is found by the learned writ Court to be based on statement of account furnished by the Officers of Accountant General, we see no error warranting reconsideration.
The appeal is, therefore, dismissed."Page 8 of 9 OA No. 610 of 2019
13. I have gone through the entire records and considered carefully the rival contentions. In the instant case the undisputed facts are that the applicant was appointed on 26.09.1987 and superannuated on 31.12.2018. The applicant from time to time withdrew the amount from his GPF account and after retirement the final claim of GPF of the applicant was forwarded to DA (P), Lucknow to Sr. Post Master Varanasi, Head Office and on finalization of GPF account it was found that the applicant had taken excess amount of Rs. 32,400/- from his GPF account during 1998- 99 and the amount of Rs. 32,400/- became 1,65,853/- because the rate of interest of 2.5% was given as per Provident Fund Rules from 1998-99 to December 2018 and in this case also the competent authority vide its order dated 05.03.2019 directed to recover the excess amount paid with penal interest from the applicant.
14. Hence, considering the peculiar facts of this case and the ratio of judgment in CAT Principal Bench, New Delhi in OA No. 1786/2016 dated 09.08.2017 and the Hon‟ble Madhya Pradesh High Court order in Writ Petition No. 13699/2010 dated 08.01.2016, I have a considered opinion that this case is not fit for interference from this Tribunal, hence, I pass the following orders:-
"The OA is dismissed. No order as to costs".
(Dr. Sanjiv Kumar) Member (A) /Piyush/ Page 9 of 9