Central Administrative Tribunal - Jodhpur
Ghan Shyam Vaishnav vs M/O Communications on 22 August, 2024
1 (OA No.290/00200/2016)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00200/2016
Pronounced on : 30.08.2024
(Reserved on : 22.08.2024)
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Ghan Shyam Vaishnav, S/o Shri Rameshwar Das Vaishnav, Aged about
40 years, R/o Vill + Post - Kakraulia, District Bhilwara. (Office
Address:- working as GDS DA under Respondent no.5.)
.......Applicant
By Advocate: Mr. S.P. Singh.
Versus
1. Union of India, through the Secretary, Government of India,
Ministry of Communication, Department of Post, Dak Bhawan,
New Delhi.
2. The Chief Postmaster General, Rajasthan Circle, Jaipur-302007.
3. The Postmaster General, Sothern Region, Ajmer.
4. Superintendent of Post Offices, Bhilwara Division, Bhilwara-
311001.
5. Inspector of Post, Eat Sub Division, Bhilwara-311001.
........Respondents
By Advocate: Mr. K.S. Yadav.
2 (OA No.290/00200/2016)
ORDER
Hon'ble Dr. Amit Sahai, Member (A)
1. Being aggrieved for not granting of applicable Time Related Continuity Allowance (TRCA) and consequential benefits such as bonus and increments in accordance with the length of service and also against the recovery of excess amount paid to him due to re-fixation of TRCA, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985.
2. Facts of the case in brief are as under:-
2.1 The applicant has been working on temporary basis as GDSDA/MD Kakraulia Post Office since 23.12.1995 in place of late Shri Raja Ram Vaishnav who expired on 09.11.1995. Subsequently, due to sudden death of Shri Mathura Lal Jat on 06.04.2012, the charge of GDSBPM was also handed over to the applicant. The applicant therefore has been continuously working as outsider with a charge of both the posts. While working on these two posts, the applicant received TRCA of Rs.9927/- per month as per the pay slip of December, 2015 (Annexure A/1).3 (OA No.290/00200/2016)
2.2 Since the applicant was not regularised and was appointed on temporary basis, therefore, he preferred an OA No.295/2015 before this Tribunal claiming regularization. During the pendency of the OA the respondents considered the case of the applicant for regularization w.e.f.
23.12.1995 vide Memo dated 04.01.2016 (Annexure A/4).
2.3 It is averred by the applicant that the respondent did not grant the consequential benefit such as bonus and his TRCA was also decreased.
Moreover, the respondent started deduction from the revised TRCA, after the regularization. The TRCA from February, 2016 has been reduced and the monthly pay received by him of Rs.7616/- (Annexure A/2).
2.4 The applicant further avers that through RTI, he has been able to collect the information regarding the undisbursed bonus due to him (Annexure A/6), which is yet to be disbursed by the respondents. The applicant further claims that his TRCA should have been fixed as per the GDS rules w.e.f. 01.01.2006 (Annexure A/8), wherein his TRCA should have been fixed for maximum amount in the category since he has been working daily for 3 hours 45 minutes to 5 hours. Moreover, the respondents have not only reduced his TRCA from Rs.9927/- per month to Rs.7616/- per month but have initiated deduction of Rs.2311/- 4 (OA No.290/00200/2016) per month without giving any reason for explanation to him in spite of his several representations. Aggrieved by reduction of TRCA, non- disbursement of bonus and recovery by the respondents without providing him any explanation for the same, has forced him to file this OA to seek relief from this Tribunal.
3. The respondents in their reply accepts that the applicant has been working in place of late Shri Raja Ram Vaishnav, GDSDA Kakroliya, since 23.12.1995. Subsequently, he was also giving the charge of GDSBPM due to sudden demise of late Shri Mathura Lal Jat. As per the direction of this Tribunal in OA No.295/2015 to consider his case for regularization, his services were regularised treating his appointment regular from the initial date of taking the charge dated 23.12.1995, with minimum of TRCA for the post of GDSDA was ordered to be paid. 3.1 The respondents further submit that late Shri Raja Ram Vaishnav in whose place, the applicant was temporarily appointed, was drawing maximum scale of TRCA and erroneously the postmaster Bhilwara started to pay the same amount to the applicant i.e. maximum TRCA. However, as per the directions of this Tribunal, the applicant was required to be paid minimum of TRCA scale after his regularization and therefore the monthly TRCA being disbursed after his regularization to 5 (OA No.290/00200/2016) the applicant and was reduced accordingly after his regularization order dated 04.01.2016 (Annexure A/4).
3.2 As an interim measure, the recovery of the difference between the monthly TRCA to be paid to the applicant prior to 04.01.2016 and subsequently the lowest TRCA fixed for him has been stayed under this OA on 18.03.2016. Accordingly, it is submitted by the respondents that recovery from his TRCA is protected as per his pay slip for the month of May, 2016 (Annexure R/1).
3.3 The respondents further submit in their reply that a Divisional Head is authorised and empowered to revise/re-fix the TRCA payable to the GDS. Moreover, in pursuance of the direction given by this Tribunal, the Inspector (East) Bhilwara was assigned the task to determine the TRCA of the applicant considering the work load of GDSDA Kakraulia which was found to be in total 180 minutes only (Annexure R/4). Accordingly, the revised TRCA entitlement to the applicant w.e.f. 01.01.2006 amount to Rs.2665-50-4165/- i.e. for 3 hours of work load, as a result the revised TRCA applicable to the applicant is for 3 hours of work load and is reduced accordingly as per his entitlement.
6 (OA No.290/00200/2016)3.4 It is the contention of the respondent that a number of reliefs have been sought by the applicant under the same OA i.e. reduction of his TRCA, prevention of any recovery of excess payment from his monthly TRCA and undisbursed bonus to be paid to him, and therefore as per the provisions of Administrative Tribunals Act, 1985, this OA is not maintainable on the ground of mis-joinder of reliefs and clubbing of multiple causes of action.
4. Heard learned counsel for the parties and perused the material available on record.
5. Learned counsel for the applicant during the arguments cited the order dated 16.07.2008 passed by the Hyderabad Bench of this Tribunal in the case of Sri P. Narsing Rao & Ors. Vs. UOI & Ors. in OA No.777/2006, decided on 16.07.2008 (Annexure A/10), which reads as under:-
"It is not out of place to refer to the judgment of the Hon'ble Supreme Court in the case of Sahib Ram vs. State of Haryana and Ors. 1995 SCC (L&S) 248 where the Apex Court has held that when excess payment has been done due to wrong construction of relevant order by the authority concerned without any misrepresentation by the appellant, then in such cases recovery of amount paid cannot be permitted."
6. As a counter, the same order of this Tribunal states that:-
"9. Learned counsel for the applicants submitted that if there is any mistake committed in fixation of the pay, the respondents can refix the pay. But as per the law laid down by the Hon'ble Supreme Court they cannot make any recovery from 7 (OA No.290/00200/2016) the salary of the applicants when there is no misrepresentation on the part of the applicants in fixing the pay, in excess of their entitlement. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of P.H. Reddy & Ors. v. N.T.R.D & Ors. reported in JT 2002(2) SC 483 wherein the Apex court has held that employer or appropriate authority has power to re-fix correctly, if had fixed the pay on an erroneous view. However, order for recovery of excess amount set aside. It is not out of place to refer to the judgment of the Hon'ble Supreme Court in the case of Sahib Ram vs. State of Haryana and Ors. 1995 SCC (L&S) 248 where the Apex Court has held that when excess payment has been done due to wrong construction of relevant order by the authority concerned without any misrepresentation by the appellant, then in such cases recovery of amount paid cannot be permitted."
Further, the Hyderabad Bench in the case of P. Narsing Rao (supra), decided on 16.07.2008, has held that-
".....it is not out of place to refer to the judgment of the Hon'ble Supreme Court in the case of Sahib Ram Vs. State of Haryana & Ors. reported in 1995 SCC (L&S) 248, where the Apex Court has held that when excess payment has been done due to wrong construction of relevant order by the authority concerned without any misrepresentation by the appellant then in such cases recovery of amount paid cannot be permitted. In view of the above law laid down by the Hon'ble Supreme Court when it is not the case of the respondents that there is any element of fraud on the part of the applicants, there can be no recovery from the salary of the applicant."
The Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih, reported in (JT 2015 (1) SC 95, vide order dated 18.12.2014, have passed clear direction that the recovery is not permissible from low paid employee.
7. It is the case of the applicant that while regularizing his services as GDSDA w.e.f. 23.12.1995 his monthly TRCA has been reduced from Rs.9927/- to Rs.7616/- and without considering his representation, the respondents have also initiated recovery of excess payment. 8 (OA No.290/00200/2016)
8. As a counter, the respondents submit that since the applicant was temporarily engaged as GDS DA Kakraulia on untimely death of Shri Raja Ram Vaishnav, therefore, Postmaster Bhilwara continued to pay the applicant erroneously the same TRCA which was being paid to Shri Raja Ram Vaishnav, which is in the maximum scale. Subsequently, from time to time, the Divisional Head is authorized an empowered to revise/re-fix the TRCA payable to GDS, therefore, in pursuance of the directions given by this Tribunal, the Inspector (East) Bhilwara calculated the work load of GDSDA Kakraulia and accordingly the TRCA was reduced to the minimum i.e. for 3 hours.
9. Although, the respondents have submitted that this Tribunal had directed to regularize the services of the applicant at the minimum of TRCA w.e.f. 23.12.1995 as per OA No.295/2015. The respondents have not provided a copy of this Tribunal's order in OA No.295/2015 wherein they were directed to regularize the services of the applicant with minimum of TRCA in the post of GDS DA.On perusal of the records available with this Bench it is seen that on 04.04.2016, the last order in OA No.295/2015, this Bench had directed as under:-
"Both the counsels agreed that the relief claimed for by the applicant has been granted and therefore the OA has become infructuous. Accordingly, the OA is dismissed as infructuous."9 (OA No.290/00200/2016)
10. This means, the respondents Suo motu vide Memo dated 04.01.2016 (Annexure A/4) had regularized the appointment of the applicant as GDS DA Kakraulia (Bigod) ED B.O. w.e.f. 23.12.1995 and have fixed the TRCA of the applicant at Rs.2665-50-4165/-. This is the minimum TRCA scale admissible to a GDSDA as per the notification at Annexure A/8 to be admissible w.e.f. 01.01.2006 and is meant for freshly recruited GDS DA for working for 3 hours. Although, the respondents justify this minimum TRCA fixed for the applicant, based on work load study submitted by them with the reply at Annexure R/4 which calculates the total daily work load of GDS DA Kakraulia (Bigod) amounting to 171.70 minutes only. However, since this document does not provide any information regarding the date on which work load study was carried out and therefore, we cannot be sure that it is an authentic document to establish the TRCA slab applicable to the applicant as GDS DA Kakraulia (Bigod), carried out at the time of his regularisation vide Memo dated 04.01.2016 (Annexure A/4). Moreover, it is also claimed by the applicant that since 23.12.1995 he had been temporarily engaged in the place of deceased GDSDA Kakraulia (Bigod) and subsequently was given the additional charge of GDS BPM because of the death of the earlier incumbent on 06.04.2012, 10 (OA No.290/00200/2016) this has also not been contradicted by the respondents. It is the claim of the applicant that while diligently rendering the services of GDSDA and subsequently with additional work load of GDSBPM he has been working for more than 5 hours every day.
11. Learned counsel for the applicant while the arguments have cited an order of this bench of the Tribunal in OA No.558/2013 titled Vishal Fanda Vs. UOI & Ors., decided on 25.01.2017, which reads as under:-
"7. In so far as recovery is concerned, Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (White Washer) and others, reported in [(2015) 4 SCC 334], issued certain directions in para 18, according to which, recoveries by the employers, would be impermissible in law in the following circumstances:
(i) Recovery from the employees belonging to Class-III and Class-IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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. Learned counsel for the petitioner has stated that since the petitioner has retired as a class-III employee, as such in view of the aforesaid mandate of Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (supra), no recovery from the petitioner can be ordered."
8. On the other hand, Hon'ble Supreme Court vide order dated 29.07.2016 rendered in Civil Appeal No.3500 of 2006, High Court of 11 (OA No.290/00200/2016) Punjab & Haryanaand others vs. Jagdev Singh, in para 11 has stated that the principle enunciated by Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (supra) cannot apply to a situation where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess will be required to be refunded. Para 11 of the aforesaid judgment in the case of Jagdev Singh (supra)is quoted below:-
"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. A perusal of the aforesaid judgment in the case of Jagdev Singh (supra) reveals that by a notification dated 28.09.2001, pay scale of Rs.10000-325-15200 (senior scale) was allowed under the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001 and under the said rules, each officer was required to submit an undertaking that any excess which may be found to have been paid which will be refunded to government either by adjustment against future payments due or otherwise."
12. In the light of this Tribunal's judgment in the case of Vishan Funda (supra) it is seen that the respondents although had regularised the services of the applicant w.e.f. 23.12.1995 at the minimum of TRCA slab on false premise that this Tribunal in OA No.295/2015 had directed them to do so. Whereas, this Tribunal had only given an interim relief to the applicant from any recovery of excess amount from his revised TRCA. The same interim relief has also been provided to him in the instant OA.
13. In the light of the fact we are of the opinion that the TRCA assessment of the applicant has not been done as per the existing rules in 12 (OA No.290/00200/2016) spite of the fact that he was holding charge of two posts under Kakrualia Post Office. Therefore, the respondents are directed to take following action within a period of three months from the date of receipt of a certified copy of this order-
i) The TRCA of the applicant may be re-assessed as per the extant rules, while working as GDS DA Kakraulia w.e.f.
23.12.1995 and subsequently, while holding the charge of GDS BPM of Kakraulia PO.
ii) No recovery of excess TRCA payment to the applicant shall be undertaken by the respondents as per the law established by the Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) & Ors..
iii) The payment of any undisbursed bonus of the applicant as per the extant rules, may be done within the aforesaid period.
14. With the above said directions, the instant Original Application is allowed. No order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) sv