Central Administrative Tribunal - Cuttack
L Mahaunta vs Aviation Research Center on 27 April, 2023
yer CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 403 of 2017 Present: Hon'ble Mr. Pramod Kumar Das, Admn. Member Laxmidhar Mahunta, aged abaut 62 years, S/o Late Ghanshyam Mahunta, "At-Angataradiha, Past-Nakhara, District-Cuttack, Ex-Fire Supervisur, Avistion Research Centre, AR Charbatia, Atf/PO-Charatla, District Cuttack-? 540 oe pio al Union of india, represented through
1. Principal Secretary, Aviation Research Centre Headquarters, Directerate, General af Security, Cabinet Secretariat, East Bluck-V, RS Puram, New Delhi-1 10066.
-
THrector of Accounts, Cabinet Secretariat, East Block-i-C, Level-VUL RK Puram, New Deihi.
3S. Deputy PNrector {Administration}, Air Wing Aviation Research Centre (ARC), At/PO-Charhatia, DI strict- Cuttack-7SOQ0Z8, ae Assistant Director {PERS}, Air Wing Aviatien Research Centre (A. 8.0), AtyPO-Charbatia, District-Cuttack- 750028. beares Respondents Forthe applicant =< MrASwain, counsel Far the respondents : Mr MLR. Mohanty, counsel Heard & reserved on 17 04.2023 teder on: S74 223 QR DER Pramod Kumar Das, MemberfAdmn):
The applicant has Sled the present GA seeking the following reliefs :
"The Han'ble Tribunal may graciously be pleased te quash the arder dated 14.45.2077 a DA $03 of SOF aS Toe Gd 468 af 207F vide Annesure A/G and direct to the respondents to refund the amount recovered from the applicant within a stipulated per rics"
a The fact in nutshell is that the applicant is a retired Ni sher Superviser of Aviation Research Centre, Charbatia, Cuttack and he has Aled this OA challenging the order under Annexure A/6 ¢ lated 14.09.2017 and direct the respondents to refund the amaunt already recovered {a pursuance of the said order. According fo legrnesd counsel for the applicant, the applicant was in po way responsible for the payment made ro hin an account of fixation and refixation of pay, recovery from his retirement dues after lapse af long Ume is unwarranted. To buttress and fortify his claim that the recovery fram the retirement dues after such long lapse of time is bad in law, learned counsel fer the applicant placed reliance on the decision of Hor nibie Pare Apex Court in the case af Stateof Panjab v Rag Masih {white Washer} [Civ Appeal No. 11527 OF fol) The impugned order dated PLOS 2OL? reads as under
"Shri Lanmidhar Mehuntamay please refer to his application dtd. 18/0? (2016 on the captioned subject The case has beer exarmimed by dus organization, Shri Laxmidhar Mahunta, Ex.station Oficer was granted Z°¢ financial upgradation in the scale of Pay Rs.SO000-S000 erroneously which was earrected and issued revised order granted 2° Financial upgradation in pay scale af Rs fOd0-5000 in place of pay scale of Rs. SGKH}-8000. The overpayment tad so recavered fram retirement gratuity/leave encashment is as per rule. As such as per existing rales the recoveries made due to over payment cannot be refunded,"
3. in the other hand, hased on the counter, learned counsel for the respondents submitted that the applicant retired from Govt, Service an 34.00.2015. An amount af Rs. S6ise/- towards excess payrient made due fo wrong fixation of pay under ACP and Bs.10,000/- tow ards retention of Govt. accommodation was found by the Director af Accounts (DACS} to have been paid to the applicant and the same was recovered from his retirement dues. The applicant did net challenge er abject the said recavery then and there and it was only on 18.07.2016 he submitted a representation, which was considered and rejected wide order dated 14.03.2017 (Annexure A/G}. Therefore, reiterating the factual position as te how there was wrong fixation of the pay of the applicant, learned counsel for the respondents submitted that there being no fllegality in the decision making process of the matter, no interference in the impugned order is called for, In so far as applicabiligy of Rafiq Masih (supra) is concerned, learned counsel for the respondent submitted that taking inte consideration the jaw laid down by Hun'ble Apes Court, GOPT 3 ex] OM relating to recovery on 02.03.2016 and the applicant 8 having retired from service wed 31.16.2015, the decision af Hon'ble Apex Court and DOPT OM O4 403 of SEL?
4 OS A038 of BOLT having no retrospective effect, the same cannot came to the aid of the applicant for the relief claimed {n this OA and, t herefore, this QA 1s to & 'The sum and substance in the rejoinder filed by the applicant is that there being no fault or misrepresentation on the part of the applicant, recovery on alleged wrong fsation af pay based xa observation of DACS nete is bad in law. Hence, accerding { the we applicant, he is entited to relief claim secdin the OA.
5 Neard both sides and perused the records.
on 2 Admittedly the applicant after intreduetion of ACP scheme vide DOPT OM dated 09.08.1999 was given 1° and 2" financial up- gradation on completion of 12 & 24 years of service. Thereafter the respondents vide order dated 12.05.2006 indicated that the applicant was only eligible for one financial upgradation Le. the 298 wel 09.08.1999. The applicant had challenged the order dated 12.05.2006 before this Tribunal as ane of the applicant in OA Ne. 502 /2006 + batch cases which was disposed of vide orler dated 07.05.2009. The relevant portion of the order is extracted below:
"8. The question to he decided i having leear promoted from seals are entities to 'Ist nancial ny wheher an addins! aresant af savherher the arophivgac SH. to Bs PESOs ES How ay et fe ofker aeords, & 100 ~ while fixing pay in the
--
ft higher scale of RsGiSQ-1500/- can be conshlered as an upgradation and U it is considered as an upgradation whether thes sare entitied ta tat Hnancial epgradation as per the ACP Scheme ar aot, Purther, the jegal question arises in theee OLAS Is 9 ts ether the applicants whe have already revired from service arg entined f8 have their pension revised an the bagia af the tw MAINS already recel one ser andar whether one Frum PEC eived i in eecess is raraver not ae the Deoartirient . fo have two be onder the ACP Scheme as per order dated 8. 2 NGM Annesare Ass} %. Addinitiee'ys BS POE the Recraitm vent Res various peste in the Dapartine er rire Officer, Fire Qperater and Fire Soperviser "hi ay ve beer i: L greated separately and all the se pasts have got diferent pray 8 s with different modesaf recrultments. As per the Recruitment Rules, the past of Pre Ogerater can be GRed NP Hither by promotion ar on deputation or by Direct Recreiiment on the bas of the qualifications, beth educational and physival, as preseribe eh urnder the Rules. As per Rules, the Incas ghents meal in vank of Fire Operavers in Geantral Gaver rent! State Government up £0 REAAUTLAL age af 36 belond ro the feeder category and In the case of five years experiance jth grade possesshiy Fire 'Supervisor, the Fire Qperatoys with driving license auton soblig repair and having quall Fed In a refresher course: js considered as the feeder category, Evert though these posts are coming under Group € classification, their pay scales were also different 4 und these we have already considered and the Department prior to Implementation of the recommendations of the 5b CPC had giver a financial upgradation te the past af Fire Operators by SEVEIS art addition af Rs, HN}. so as to fix their pay under PR saree) HL}. Hence, those who had campleted 12 years and got stagnation in that pust have te get 3 financial uogradatian. If sa, whatever stated in the order dated &.B2QQU that the pay af those who have got such financial oper adatien ob R 38. Rane 'ig Reed poder F.R-
22 gary Pecans prc ding tha A 2 neial aperadation, Hse, 'bal fare the Introduction oF eclementation af F the s ACP scheme, such employees Ww 'ho have got auch a promotion rather financial upgradation are Rot entitied for both the tare ial ungradations on Ue ground that they have abreac ly receiverl one promotion. In the above Greumstances, & js to he held that the ammlnyees whe have alreac dy seceded pramotion Carnot laitn hath the financial aperadations on the basis of the order dated B2000, In this Context it is pertinent taquote hereunder the pomt af doubt and clarification thereof aganist SNe. SZ as stipulated in O.M. No. So0s4/ HOTESeLD (VallV} dated TOL ERO:
% x ANA XXX NRX he above ¢ eae Heation an the port of doubt clearly Indicates that rae ar and oF romotional p pasts B aviNg ~ on the Wienachs F Rnancha merged bE cane .
he given sy: the next bierarchical cats above the nygradation wens ober Ate 04.403 of S017 & yer ged levels and HW any pramation has been allow : t wil have to be ips subt Novd of OM. deted Te 2000. ft
- of nee scala inte ome sents, a a SATS means thet sf preys necessary that the res y of cadre an hier rarchice dba taken up and this:
the cadres reviewer. Phe cari font present scenario, keeping in view & exist fived under the provisions of PR ZU) a YT} subject to a minkmnim benefit of RsJidss as stipulate ip conditian Ne G oF ACP Schemaivide DoPST, OM d faved EURO, Hence, this Tribunal is af the vie ad ae at the action by | per the order dated Fees 36 is ee fy yesiaw the < aval ible to po a the yO aidicetes that in the derarchy the pay shall be SERN promotion ag Fires Uh The learned counsel S hid BA Tripathy ts en ght to the notice afthis Tribuma! the order of the © ae » Guwahad Bench f: OA, wherein the Gusabatl Bench has set aside the actor n proposed co he initiated, That order af the Guwahati Bench gas on the ground of the violation af the principles af natural justice. ever, Lhe order Inrpugned does not x fram violation af the principles af natu justice as the Department thereby has taken the step to review an irregular or iNegal order pass seit by Iself, The princiales of natural fustice cannat be evteanied to that parties whe bh ad ¢ got the benefits by virtue of the arder dated G.B.20 190 issned by the Department on the suroarted meplemenl ation af the RaPAP GML No. SSOsd 7 1 fa?- Sste(D) sated mid subsequentiy, an receiot af clarification fron: DorPaT tse same aren ret reviews ad the des nefits erroneously granted to its yin without boving regard fo The pramation whick they hed anted from Fire Opera Star wire Superviser from scale of Rs. 9S0-1S00 te 1180 L800 f- and ab event their pay waa feed under the provision af FR 2NGaed sul ject Lo a minimum benelit of Rs, 100/+. 1 so, the action proposed by the Respormdents Department by the order dated 125.2008 is fustifiable and we see ne ground to interfere with chat action, However, om the principles (aki by the Apex Couwt thet ance a financial benefir bas been granted by. the Department, His net proper te order FEEOV ery af such amount after lapse af Hime as by Chat rerevery, f any eal or proposed f from Ae employ ees concerned would be p pu se whe sayy Ane > ae serene) by aay oft the aymicants on the be sis af The arde &8.2000 should net beeffected, but-the other bene fi its can be Axed ulfor determined ony an the basis of the ~ obscrvations-contained fi this arden.
x oa { Jeo The further ye@estion ta Ge © s the retired QINEHOVESS aye AOL tled fo revision of este pay and other we hasis of Gee caer 4 pensonary boneiits ont .SUOO ar not we % ay pe, we:
oe OA SOS oF BOE?
7 OA AS of 2007 Yhis point can be looked inte by the Department on the basis of the findings entered by this Tribunal, any retir ed applicant is entitled ta any calculation or any adjustment of his pensionary benefits, te shall be so fived within a reasanable thre, at any ALS, ¥ within threes months of the receipt of this arder. On the question of merger of pay scale of both Fire Operators. and Fire Supervisors, weé find that once the Department had taken up the matter with the Finance Department recommending revision of pay of Fire Supervisors to Rs A20049501-, but the sald proposal has been turned down, Having regard to the totality of che facts and circumstances of the case, the point of Doubt NoSd and clari§ration thereef [b{d} cannot be brushed aside.
'Therefsre, in the Htness of things, we would ebserwe that though the action af the Respondents appears to be in consonanre with the clarification against Doultt No.$2 of the OM, dated 10.2.2000, yet the Respondents have net produced any record or made any averment 'hat if was inescapable to retain both fecder and proraotional grades as two distinct levels in the hierarchy in the same scale of pay, thereby making a provision for allowing promotion to a higher pust in the sayne pay scale. In this view of the matter, we direct the Respondent:
Department to review the cadre stracture of beth Fire Qperator and Fire Supervisor and complete the process within a period of 90 fninety} days from today and that the applicants shall be governed by the natcome of such review. In the event of failure to review the sald cadre structure and te complete the same within the period stipulated above, the Hability shall be fixed on the erring officers In that behalf,
12. With the above observations and direction, all the Uriginal Applications are disposed of leaving the parties to bear their respective costs."
The applicant then challenged the said order of this Tribunal by fling WP (C) No. 12553/2009 and Nor'ble High Court vide urder dated 21.08.2013 disposed of the said writ petition with following abservations:" After hearing the parties and analyzing the questions raised, altimately the learned Tribumal directed the Respondent-Department fo review she cadre structure of both Fire Operator and Fire Supervisor and complete the process within a pertod of 90 (ninety) days from the date of order and that the applicants shall be governed by the outcome of such review. Jn the event of fallure GA AOS os ty yeudew the said cadre struchare ard te complete the ssarur within the period * oe < RARE Baes Wlareceh ssey ape ohe oe WASTE stipulated above, the lability shad be Sxce oo ft he erring afficers in hat beball Learned) counsel fer the peditioner submits that un ottempt is henge made te secaver certain amourd fram the petitioner aHegins OROEsS payment Since the learned Tritamal has already directed to review the matter with regard to the cadre structure and thre review bas not yer been made, we dlrect that tH Analization of the process b oy the reviewing authority, if any recerery 18 proposed ty he male fram the petitioner "fhe same shall remain stayed which shall be governed by the order to be paseadl by the reviewing autharity.
eke The writ petition stands disposed ab"
The respondents bi com ypliance af order of this Tribunal, had wal carried out the restructuring vide orders dated O4 11.2010 dated 24.42.2070 and consequential arder was issued vide notiication dated 1AHG2011 which was duly communicated to all units and concerned individuals, Subsequent to restructuring order dated SLA 2010 was directed that the post of Fire Supervisar in the grade pay of Rs 1900/- in PB dis upgraded to the Grade Pay of Rs. 2000/- in PET and renamed as Leading Fireman. it is the stand of the applicant that ue said arder was not communicated to him and therefore the respondents could not have effected recovery. [f is seen that the sald arder wax fssued and contents of the said order was ordered to be brought to the notice of all concerned Individuals. The applicant who was in service at that Hime, could sot have taken the stand that Uiere is no separate communication tG him. Therefore, we are not in agreement with the stand taken by the learned coun asel for the y Ch 4038 of 2O17 applicant that the applicant was prejudiced berause of non rommuniration of the said arder fe him.
8, So far as recovery is concerned, if Is warthwhile to quate the relevant portion of the decision of the Hon'ble Apex Court in the case af State of Punjab & Others vs Rafiq Masih (White Washer} & others, 2015 [4] SCC 334, which reads as under:
"19 ft is not possible to pastulate all situations of hardship, which would govern employees on the issuc of recovery, where payments have mistakenly been made by the empleyer, in excess af 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, world be impermissible in law:
{i} Recovery from employees belonging to Class-Ilf and Class-TV service (or Group 'Cc' and Group 'D' service).
{ii} Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
filij 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 esiployee has wrongfully been required to discharge duties of a higher post, and has been paid acrordingly, oven though he should have rightfully been required to work against an inferior post On the basis of the aforesaid fudement, the DoP&T had issued the OMce Memorandum Ne. 18/03/2015-Estt. (Pay-1) dated 02.03.2015 providing therein as under:
"4 "She Hon'ble Supreme Court whi is mat possible ta post qos) which would pave : ;
recovery, where Payne: ve nistak nly deen made hy the 'employ yer, in excess of their entitlement has summarized the follewing few situations, wherein recoveries by the employers would be impermi issible in laws ahserving that it jons of "aa pate yong pe at oa we Wate Be ren ee po:
So ae a7 ()) Recovery from employees belanging to Clags-Hl and Class-IV service for Group °C' and Group TY service).
Gi} Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(if) Recovery fram omployees, when the excess payment has heen made for a period in excess of five years, before the order of TECOVETY 18 18k wed.
fiv} Recovery in cases where an emplayes has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required fo work avainst an infertor post.
(wy in any ether case, where the Court arrives at the cone nclusion, that recovery if made from ee employes, wield be iniquitous ar harsh or arbitrary te such an her pow extent, as would far outwel 4 the equitable The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised ta desl with the issue of wrongful / excess payments made to Government servants In accardance with above decision of the Hon'ble Supreme Court in CA Na 11S27 of 2014 Larising out af SLF (C} No. L 1684 of 2012) in State of Punjab and others ete vs Rafig Masih (White Washer} ete. However, wherever the walver of recovery In the above- mentioned situations is considered, the same tay be allawed with the express appreval of Department of Expenditure in terms of this Department's OM No.i8/26/2011-Bsit (Pay-1] dated 6th February, 2014"
The applicant belongs te Group C, the recovery is sought to be made for the excess payment made to him on grant of ACP in the year 1990 which is in excess of five years peried and the applicant has retired my the meantime. Thus the sub clause 4), Gf} and UN) of pore 42 of Hon'ble Apex Court in Rafly Masth (supra) and sub clause (1), (8) of para 4 of the DOPT memo is applicable to the applicant.
9. in the instant case, admittedly, the applicant was granted the 25° financial upgradation under ACP vide order dated 09.08.0000 wed 09.08.1999 from Rs. 4000-G000/- to Rs. S000-8000/-. The fixation of pay wader 28? ACP was found to be erroncous at nl, accordingly, the gay af the applicant was refined and the differ ential amount of excess payment made was recovered from thie retirement dues af the OA 405 af a3 OS 403 of AGL applicant, who retired from the government service on reaching the age of superannuation on 311.2015. The applicant did not challenge the refixation of his pay and consequential Nxation of pension. His grievance is that since erroneous fisation of pay and paynient, recovery of the differential arnount for such erraneots fixation of pay made long hack front his retirement dues caused him grest financial srdship and, therefore, the recovery being opposed to the law inid down by the Hon'ble Apex Court in the Rafig Masih and DoP&T OM {supra}, The 'contention of the Ld Counsel for the respondents Is that the DoP&T issued the OM in pursuance of the decisions In the case of Rafiq Masih on 02.03.2016 whereas the applicant retired from service on FLIG2015, thus, according to him, the Dop&Tt circular having no retrospective effect has ne application in the present nase This was countered by the Ld. Counsel for the applicant by stating that the decision rendered in the case of Rafig Masih has to be applied in the present case as the applicant belongs to Group 'S employee, the excess payment relates to five years before when the recovery was sought to be made from the applicant and, that, the applicant was in ne way responsible for such excess payment. This apart, ft has been vontended that even though DoPAT circular does not specifically state that it has retraspective Implementation, ff is presumed to have pe) DAA of SO?
retrospective application as the same was issued In pursuance of the decision of the Hon'ble Apex Court rendered In Rafiq Masih on TRIZLOL4 Further, ip was contended that delay im issuance af the circular by the DoP&T cannat wash out the decision rendered by the Hon'ble Apex Court in Rafiq Masih because the said decisinn was in judement in rem and the law declared by the Supreme Court shal! he birding on all courts within the territory of India as per the mandate enshrined under Article 141, Canstitutien of India. Therefare, the recovery from the retirement dues fer an erroneous payment made to the applicant due to wrong fixation of pay under ACP granted to him vide order dated O8.08.2000 (A/1) is bound te be held legal and arbitrary. | find sufficient force on the submission of the Ld Counsel for the applicant that If the DoP&T circular issued subsequent to, the decision of the Hon'ble Apex Court direction for dealing with issue of wrongful excess payments made to Government servants in accardance with above decision of the Ho ble Apex Court. Hence a delay in issuance of such circular cannot wipe out when the Hon'ble Apex Court have specifically held the conditions under which recaveries would be impermissible. More so, when the DoaP&t circular was issued in pursuance of the said decision even if in the cireular it has not been specifically stated that the same has no 14 Of 463 of 2077 retrospective application, the said circular is bound to be mate applicahle in the instant case in view of the above discussion and the arguments advanced to the above effect by the learned Counsel for the Respondent is bound to he overruled and is hereby overruled. Resultantly, the recovery of Rs, 66,132 /- from the retirement dues roawards the differential amount drawh 7 to erroneous fixation of gad MACP granted to the anglicant long back is held fa be not sustainable and by applying the law aid dawn by the Hon'ble Apex Court ia the case of Rafiq Masih {supra}, the Impug ened order dated 14.03, 2017 (Anns A/G) is hereby quashed and the Respondents are directed to refund the same amount of Rs, 66,132/- to the Applicant within a period of $0 (thirty) days from the date of receipt of a copy of this order. However, | do not find any justifiable reason to interfere In the recovery of Rs. 10,000/- made from the retirement dues of the Applicant towards retention of Govt accommodation,
40. In the result, this OA stands allowed ta the extent stated above, There shall be no order as to Cos.
(PR RAMOD OMKe {}, AS} MEMBER (ADMN} CSE