Central Administrative Tribunal - Bangalore
Sanna Thimmappa D M vs Bharat Sanchar Nigam Ltd on 11 November, 2021
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OA.No.170/1285/2019/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/01285/2019
ORDER RESERVED ON 02.09.2021
DATE OF ORDER: 11.11.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(Through video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(Through video conference from Central Administrative Tribunal, Bangalore
Bench, Bangalore)
Sri Sanna Thimmappa D.M.
S/o Mariyappa
Aged about 60 years
r/at "Onkara" 1st Main
2nd Cross, Ashokanagar
Shivamogga City 577202. ....Applicant
(By Advocate Shri M.R.Achar - through video conference)
Vs.
1. The Chairman-Managing Director
Bharath Sanchar Nigam Limited
Mathurline
New Delhi-01.
2. The General Manager
Bharath Sanchar Nigam Limited
Shivamogga City 577201. .... Respondents
(By Shri M.V. Rao, Senior Panel Counsel - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"Set aside the order No.A-327/STOA-TTA/2019-20-74 dated 28.05.2019 vide which the request of the applicant for refund of the 2 OA.No.170/1285/2019/CAT/Bangalore Bench recovered amount of Rs.92,485/- towards over paid pay and allowances has been rejected and the respondents be directed to refund the amount to the applicant along with interest at the rate of 18% per annum with cost."
2. The facts of the case as pleaded by the applicant are as follows:
a. The applicant was granted higher pay scale of Rs.5000-150-8000 w.e.f. 21.09.2000 vide notification dated 05.09.2001 issued by BSNL (Annexure-A1). It was specified in this order that the officials on their placement in the higher scale can exercise option to get their pay fixed from the date of next increment as provided for under F.R.22 (1)(a)(2).
b. Subsequently, the respondents issued a revised fixation of pay order vide Memo No.A&P-4/TTA/11-12/40 dated 21.02.2013/03.06.2013 (Annexure-A2). This revised fixation of pay was with respect to the applicant's pay from 01.10.2000 to 01.10.2013 subsequent to his absorption in BSNL in the IDA scale w.e.f. 01.10.2000. c. As per this revised fixation of pay, it was observed that the pay and allowances were over paid from January 2007 to May 2013 amounting to Rs.92,633/-. The said amount was ordered to be recovered from the applicant vide letter dated 17.08.2017. The overpaid pay and allowances were recovered in 20 instalments starting from the pay and allowances from August 2017. d. The applicant stated that there is no misrepresentation or fraud from his side and the 2nd respondent ordered to recover the amount of Rs.92,633/- vide Annexure-A3.
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OA.No.170/1285/2019/CAT/Bangalore Bench e. The applicant made representation on 08.04.2019 against this recovery which was rejected by the 1st respondent vide letter dated 28.05.2019(Annexure-A5).
f. The applicant further stated that under similar circumstances, this Tribunal had quashed the order of recovery in OA.No.88/2018 vide order dated 21.02.2019 wherein the Tribunal had set aside the recovery order and directed BSNL to refund the amount.
3. The respondents have filed their reply statement wherein they averred as follows:
a) The applicant Sri Sanna Thimmappa was an employee of the erstwhile DOT which was corporatized as BSNL w.e.f. 01.10.2000. The applicant was serving as Telecom Technical Assistant (TTA) in the Central Government Time Scale (CDA Pattern) of Rs.4500-125-7000 up to 20.09.2000. He was upgraded to the higher pay scale of Rs.5000-150-
8000 w.e.f. 21.09.2000 on completion of 16 years of service.
b) As per the relevant rules, the pay fixation was done under the CDA pattern by allowing the benefit of fixation from the date of next increment i.e. 01.01.2001 in the old pay scale.
c) Subsequently, a revised pay fixation was done (Annexure-A2) fixing the initial pay from the date of promotion i.e. 21.09.2000 instead of the date of next increment i.e. 01.01.2001. The next increment under the IDA pay scales has been allowed from 01.09.2001. This was required under the rules to comply with the orders of Govt. of India, Min. of Communications & IT dated 17.12.2008. Consequently, the respondents recovered the overpayment of the salary from the applicant. 4
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d) The regularization of the pay and allowances as per rules, is the prerogative of the employer at any juncture and the consequent monetary effect of the payment of the arrears or the recovery of the overpayment is a natural course of action in the process of such regularization. All the employees are treated equally in this manner.
e) The respondent No.2 had given prior intimation to the applicant vide letter dated 17.08.2017 for the recovery of overpayment of pay and allowances of Rs.92,633/- as shown in Annexure-A3.
f) The recovery of overpayment was started in the month of August 2017 and was completed in March 2019. The applicant did not question the recovery of overpayment by the respondents till his retirement. Now as an afterthought, the applicant has filed this OA taking shelter of this Tribunal's judgment in OA.No.88/2018.
g) The applicant retired from service on 28.02.2019. The respondents recovered the overpaid amount after due intimation to the applicant well in advance. Hence, the recovery of overpayment by the respondents is in order and justified.
h) In OA.No.396/2019, this Tribunal vide its order dated 24.10.2019 has observed as follows:
"...Any extra payment is not with the juncture of the applicant, as clearly submitted by the respondents themselves. Even otherwise also, they could have recovered the amount, provided they had issued a show cause notice, giving opportunity of being heard to the applicant. Apparently, they had just recovered the said amount...."5
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i) However, in the present case, the respondents had given due notice to the applicant and recovered the over payment after due intimation to the applicant.
j) In Whitewasher case, the Hon'ble Apex Court has observed as follows:
"....Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation."
k) The respondents recovered the overpaid amount, after due intimation to the applicant, well in advance, in suitable 20 instalments, before one year seven months of his retirement. Hence, the recovery of overpayment by the respondents is in order. The applicant has furnished an undertaking which is self-explanatory.
l) The applicant is claiming the benefit of this Tribunal's order in OA.No.88/2018. It is reiterated that the applicant cannot take shelter exclusively under the order of this Tribunal as the said order itself cannot be the sole basis for deciding the case in favour of the applicant. Even though the overpaid amount had been recovered much earlier, the applicant had not represented against the same but submitted the claim for refund after his retirement on 28.02.2019 which indicates that the applicant solely depended on the judgment of this Tribunal and has no other justified grounds to put forth before this Tribunal. 6
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m) The revised pay fixation dated 03.06.2013 is not individual to the applicant but is applicable as a whole to all such employees of BSNL who opted for the fixation in the promoted scale in the lower grade which falls after 01.10.2000 and invariably the recovery of the excess paid amount is done from all such employees. Dept. of PSE has clarified that 'the option of fixing from the next increment date' will not be available for the employees of BSNL since their status changed on 01.10.2000 and no re-fixation can be permitted on the next increment date which is falling after 01.10.2000.
4. Heard learned counsels for both the parties.
5. The facts of the case, as apparent from the pleadings of the applicant and the respondents, indicate that the applicant, subsequent to corporatization of BSNL, had switched from the Central pay scales, following CDA pattern, to Industrial pay scales following IDA pattern, w.e.f. 01.10.2000.
6. The applicant had been granted upgraded pay scale under the CDA pay scales on 21.09.2000 i.e. the date of his promotion, while he was still a DOT employee. Subsequently, on absorption in BSNL in the IDA pay scale w.e.f 01.10.2000, he could not have exercised the option for getting his next increment under the CDA pay scales w.e.f 1.1.2001, since he had already switched to the new pay scales following IDA pattern w.e.f. 1.10.2000. Hence, his pay was supposed to be fixed taking into account his new pay scales in BSNL in IDA pattern w.e.f. 01.10.2000, after giving him the benefit of one increment on his date of promotion itself i.e. 21.09.2000. 7
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7. The issue pertaining to pay fixation had been decided by the Government vide Min. of Communication & IT, Dept. of Telecom OM No.1-1(1)/06-PAT dated 17.12.2008 which reads as follows:
No.1-1(1)/06-PAT Government of India Ministry of Communication & IT Department of Telecom.
Dated: 17/12/2008 OFFICE-MEMORANDUM Subject: Method of pay fixation in IDA pay scale in respect of absorbed officials of BSNL who were promoted prior to 1/10/2000 but opted under FR22(1)(a)(i) for fixation of their pay in the promoted scale on the date of their next increment in the lower grade which falls after 1/10/2000 This department issued OM No.1-1(1)/06-PAT dated 12/9/2006 on the method of pay fixation in IDA pay scale in respect of absorbed officials of BSNL who were promoted prior to 1/10/2000 but opted for fixation in the promoted scale on the date of their next increment in the lower grade under FR22(I) (a)(i), which falls after 1/10/2000. Thereafter a number of references were received from various Controllers of Communication Accounts expressing their observations and seeking further clarification on the issue.
The case was re-examined in consultation with the nodal department of PSUs i.e. Department of Public Enterprises. The Department of Public Enterprises has clarified that "The option of fixing the pay from the next increment date available under FR 22 will not be available for the employees of BSNL since their status changed on 1.10.2000. Hence, their pay will have to be fixed on the date of their promotion as per then existing rules prior to 1/10/2000 and no re-fixation can be permitted on the next increment date which is falling after 1/10/2000."
Therefore, in supersession of this department's OM No. 1-1(1)/06-PAT dated 12/9/2006, the undersigned is directed to say that the pay of the absorbed employees of BSNL who were promoted prior to 1/10/2000 but opted for fixation in the promoted scale on the date of their next increment in the lower grade under FR22(I)(a)(i), which falls after 1/10/2000, may be re-fixed in IDA pay scale as per the above clarification of the Department of Public Enterprises.
This issues with the concurrence of the Telecom Finance, vide their Diary No.-280/ADG(F)/08 dated 5/12/20008.8
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8. His pay revision had been incorrectly fixed by taking the date of his next increment from 01.01.2001, instead of the increment being given from the date of his promotion i.e. 21.09.2000. His revised pay, subsequent to granting him increment on 21.9.2000 and on his subsequent fixation of pay after placement in the IDA pay scale on absorption to BSNL w.e.f. 01.10.2000, was refixed vide orders dated 3.06.2013. The applicant was duly informed of this revised pay fixation by endorsing a copy of the same to him.
9. The revised pay fixation resulted in over payment from January 2007 to May 2013 of an amount of Rs.92,633/-. This was ordered to be recovered from his salary in 20 instalments vide orders dated 17.08.2017, which was also duly intimated to the applicant at that time. The recovery was completed before the superannuation of the employee in February 2019.
10.The applicant is relying on the judgment passed by this Tribunal in OA.No.88/2018. A perusal of the judgment indicates that this Tribunal had primarily relied on the Hon'ble Apex Court judgment in White Washer's case.
11.In State of Punjab & Others vs. Rafiq Masih (White Washer), 2012, the Honourable Apex Court had also observed as follows:
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of 9 OA.No.170/1285/2019/CAT/Bangalore Bench India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
12. In the present case, the applicant had been informed about his revised pay fixation vide order dated 3.6.2013. He was also informed regarding the excess payment, paid to him vide letter dated 17.08.2017, while he was still in service and getting his full salary. He has been overpaid this amount to which he was certainly not eligible since his pay fixation was erroneous in the year 2000 and consequently, he had drawn excess pay and allowances of Rs. 92,633/- between the period of January 2007 to May 2013.
13. The applicant did not choose to contest his revised pay fixation of pay done vide orders dated 21/02/2013 by the respondents. He also did not contest the orders dated 17.08.2017 regarding recovery of the excess pay and allowances from his pay in 20 equal instalments while he was in service. The entire amount of Rs. 92,633/- has already been recovered from him in 20 instalments. Each instalment would amount to around Rs.4632/- per month only. This amount, by no stretch of imagination, can be considered to be excessive.10
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14. The Apex court, in the Whitewashers case (supra) has observed that "orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made.
15. Recovery of the excess pay and allowances in this case in 20 equal instalments of around Rs. 4632/- each, certainly does not result in causing hardship of such a nature to the applicant, which would warrant judicial interference at this stage. On the other hand, not effecting this recovery of the amount which was certainly not due to the applicant, could result in claims from other similarly situated employees who may have got this undue enrichment at the cost of the exchequer, and would certainly effect the equitable balance of the employer's right to recover.
16. Keeping the above in view, the present OA, being devoid of any merit is liable to be dismissed.
17. The OA is accordingly, dismissed. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER(ADMN) MEMBER(JUDL)
/ps/