Central Administrative Tribunal - Jaipur
Tophan Mal Meena vs All India Radio on 18 January, 2023
(OA No.149/2021)
(1)
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A.No.149/2021
Reserved on:16.01.2023
Pronounced on:18.01.2023
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
Tophan Mal Meena son of Shri Ganpat Lal Meena, aged about
62 years, Retired Assistant Engineer (Civil) CCW, AIRTV,
Jhalana Doongri, Jaipur-302004, (Group-B) (Mobile
No.9928465976).
...Applicant
(By Advocate: Shri Dinesh Kumar Mishra)
Versus
1. The Director General, All India Radio, Akashvani
Bhawan, Parliament Street, New Delh-110001.
2. The Pay and Accounts Officer, All India Radio, Room
No.124, Akashvani Bhawan, Parliament Street, New
Delh-110001.
3. The Executive Engineer (C), CCW, AIR, T.V. Studio
Complex, Jhalana Doongri, Jaipur-302004.
...Respondents.
(By Advocates: Shri Rajendra Vaish)
ORDER
Per: Dinesh Sharma, Member (A):
In this OA, the applicant has prayed for the following reliefs:
"1. To declare the order dated 03.09.2019 (impugned order annexed as ANNEXURE-1) issued by the respondent no.3 as illegal and non-est and to order the respondents to consider his last drawn pay of Rs.1,12,400/- + 12% D.A. for the purpose of calculation of all retiral benefits.
(OA No.149/2021) (2)
2. To order the respondents to rectify the orders of PPO no.277521902216 dated 10.10.2019 in respect of the applicant.
3. To work out all pensionary/retiral benefits in respect of the applicant by considering the above last drawn pay and to start paying the same at the earliest.
4. To pay arrears of the gratuity, commuted value of pension and monthly pension and other retiral benefits paid less.
5. To pay the Leave encashment for 283 days EL and 17 days HPL on the basis of last drawn pay i.e., 1,12,400/- plus D.A. 12%, amounting to Rs. which has not been paid so far.
6. To withdraw/set aside the illegal order for recovery of Rs.4,12,840/- of Respondent no.3 vide order no. EE(C)JPR/2019- 20/S/1361 dated 03.09.2019 which is in contradiction to the Hon'ble Supreme Court order in State of Punjab & Ors. vs. Rafiq Masih (White Washer).
7. To pay interest @ 18% p.a. on all the above sums from 01.08.2019.
8. Any other order as deemed fit may kindly be passed in favor of the applicant."
2. Very briefly summarized, the case of the applicant is that he joined the services in All India Radio, as Junior Engineer (Civil), in the year 1983. He was promoted as Assistant Engineer (Civil) in the year 1992. He remained with the Prasar Bharati, when that organization was formed under the I&B Ministry, in the year 1997. As part of an incentive given to 11 categories of employees, the applicant received benefit of upgraded pay scale in the year 1999. As per the Scheme of Assured Career Progression (ACP), (OA No.149/2021) (3) introduced through the 5th Pay Commission recommendations, the applicant, having already got one promotion, was given the benefit of 2nd ACP, on completion of 24 years, in the year 2007. Following the recommendations of the 6th Pay Commission, the applicant was granted 3rd MACP benefit on 29.08.2013, on completion of 30 years of service, and his pay was fixed at Rs.1,09,100/- on 13.07.2015. Following annual increments, his pay was 1,12,400/- on 01.07.2019. This should have been the basis of fixing his pension, as he was due to retire on 31.07.2019. However, now, by orders at Annexure-3, his pay is shown fixed at a lower level of Rs.105600/- and correspondingly lower pension has been ordered. The applicant is also informed, by order dated 06.01.2021 about adjusting an alleged overpayment of Rs.4,12,840/- (which, though no details are given, could be the amount of the 3rd MACP benefit) from his leave salary encashment dues. The applicant learnt that this has been done following the decision of the Ministry dated 31.01.2018 (Annexure R/3). This decision, which followed the recommendation of a Group of Joint Secretaries, is for adjusting the grant of incentive given in the year 1999, by considering it as an upgradation while considering eligibility for grant of MACP benefits. Following this decision, the grant of 3rd MACP to the applicant in the year 2013 is being considered as wrong and (OA No.149/2021) (4) the impugned orders for reduction of his pay/pension and recovery of alleged overpaid amount have been issued. The applicant has challenged these stating that the incentive given in the year 1999 cannot be counted as a promotion. The decision of the Ministry dated 31.01.2018 was challenged before the Principal Bench of this Tribunal in OA No.2449/2018. Though the Principal Bench did not set aside the decision of the Ministry, the order of the Principal Bench has been stayed by the Hon'ble Delhi High Court in W.P.(C) No.9890/2019. The Ministry has also directed the Prasar Bharti not to do any recoveries and to maintain status quo, as ordered by the Hon'ble Delhi High Court. In this situation, the impugned orders, which are issued by Respondent No.1, are in violation of the direction given by their own Ministry. The applicant has also claimed that no recovery can be made of any payment, even if it was found to be erroneous, following the dictum of the Hon'ble Supreme Court in State of Punjab and Others vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334.
3. The respondents have filed a reply denying the claims made by the applicant. It is stated that the grant of 3rd MACP in the year 2013 was wrong since it amounted to a fourth benefit in the career of the applicant (having already got one promotion in the year 1992, incentive upgradation (OA No.149/2021) (5) in the year 1999, and the ACP benefit of one upgradation in the year 2007). The Principal Bench of this Tribunal had already found nothing wrong in the decision of the I&B Ministry dated 31.01.2018 and thus the issue was settled. The orders fixing the pay and pension of the applicant were issued on 03.09.2019, which is before the Hon'ble High Court ordered a stay on the decision of the Principal Bench of this Tribunal. The applicant also cannot avoid repaying the excess amount paid to him by the erroneous grant of MACP, as he was not covered by the decision of the Hon'ble Supreme Court under Rafiq Masih's case. The applicant had himself given undertakings to have any excess amount paid to him recovered by way of adjustment from his leave salary encashment dues.
4. The matter was finally heard on 16.01.2023. Both the learned counsels reiterated the arguments mentioned in their respective pleadings. The learned counsel for the applicant vehemently argued that there could be no recovery of any excess amount paid since his case was covered by the decision of the Rafiq Masih (supra). The applicant is retired and the alleged excess payments were made with respect to the years 2013 to 2018, and thus the applicant did fulfill two of the conditions mentioned in Para 12 judgment of the Hon'ble Supreme Court. The learned (OA No.149/2021) (6) counsel for the respondents argued that the applicant had already consented to be paid, with an undertaking to refund, in the backdrop of the decisions of the Principal Bench of this Tribunal and the stay of that decision by the Hon'ble Delhi High Court. In the light of the undertaking given by the applicant, his case was covered by the judgment of the Hon'ble Delhi High Court in Jasdev Singh and Others vs. Unit Trust of India vide LPA No.10/2005 decided on 02.05.2011 and not that case of Rafiq Masih. The learned counsel for the applicant countered this argument by saying that the undertaking was not given by free will, but under coercion (since the applicant needed the pension for survival).
5. After going through the pleadings and hearing the arguments, it is clear to us that the issue - about whether the incentive given in the year 1999 should be treated as an upgradation relevant for granting MACP - has been decided by the Principal Bench of this Tribunal in their decision dated 01.08.2019 in OA No.2449/2018. Though the applicant was not a party to that OA, the OA was filed, by an association, in a representative capacity, for persons who got the benefit of the incentive in the year 1999. The applicant is admittedly one of such beneficiaries. He has also made a written submission (Annexure 9/1) in the backdrop of this decision (OA No.149/2021) (7) and the pendency of the Writ Petition before the Hon'ble Delhi High Court. In this situation, it would be totally undesirable for us to say anything on the merit of the claim, regarding the correctness or otherwise of the MACP benefit granted (and later withdrawn) to the applicant, as the underlying issue (about whether the incentive given in 1999 could be treated as one of the benefits to be counted while determining eligibility for MACP) is sub-judice before the Hon'ble High Court of Delhi. Under these circumstances, it is very fair and reasonable to expect that the respondents would abide by the decision of the Hon'ble Delhi High Court and implement it with respect to the applicant also if that decision goes in favour of the claim made by the applicant in this OA (i.e. if the decision finds it wrong to adjust the incentive given in the year 1999 against any future MACPs).
6. Though nowhere mentioned in the pleadings, the learned counsel for the applicant argued that the adjustment against MACP, mentioned in the decision dated 06.01.2021 could relate to only future MACP benefits granted after that date. We find it difficult to stomach this argument. The MACP Scheme came into existence following the 6th CPC recommendations. All MACP benefits were to be granted only after considering past benefits of promotions/upgradations. Hence, the suggestion about (OA No.149/2021) (8) adjustment against future MACPs appears to be with respect to such "past" benefits, and not with respect to the date of the order of this decision. In any case, an argument like this, at the stage of final arguments, when the applicant has himself not raised these in any of his pleadings and has given an undertaking to abide by the decisions of the Hon'ble Delhi High Court in Association of Akashvani & Doordarshan Engineering Employees & Others vs. Union of India and Others' case, is unacceptable.
7. In the light of the above conclusion (that it is not for us to go into the merit of correctness of grant of MACP or the withdrawal of that grant of MACP, when the matter is pending before the Hon'ble Delhi High Court), the only issue that remains before us is whether the respondents are right in recovering the excess amount (rightly or wrongly) paid to the applicant by way of grant of this MACP. Here, we do find merit in the claim made by the applicant that the decision of the Hon'ble Supreme Court in Rafiq Masih case squarely applies on the facts of this case. The applicant was paid the 3rd MACP without any misrepresentation on his part. This was paid for about 5 years and is being recovered just before his retirement. The undertakings given by him are clearly to get his other dues which a person does need at the time of his retirement. The undertakings filed by the (OA No.149/2021) (9) applicant and the respondents are not given at the time of the grant of the MACP benefit but at the time when his retirement dues were being withheld. In this situation, it is not unreasonable to suspect that he was made to file these undertakings and he agreed to do so in order to get his much-needed retirement dues. The orders of the Principal Bench dated 01.08.2019 (and also the decision of the Ministry dated 31.01.2018) clearly state that recoveries of any excess amount should not be made if covered by the order of the Hon'ble Supreme Court in Rafiq Masih case. Taking into account all these, we do feel that it would be improper on the part of the respondents to recover the amount of alleged excess amount by way of deducting it from the leave encashment dues. The whole of the leave encashment amount should therefore be released, without deducting the allegedly paid excess amount of 3rd MACP. The respondents may, if they are so advised, taking into account the whole gamut of issues (which we are not aware of) pending before the Hon'ble High Court in WP (C) No.9890/2019, ask for an undertaking by the applicant, to have this excess amount recollected from his future pension (in case it is permitted by the Hon'ble High Court's decision).
(OA No.149/2021) (10)
8. The OA is, thus, disposed of with a direction to the respondents to release the dues of the applicant without recovering the allegedly paid excess amount of 3rd MACP benefits. The respondents would follow the decision of the Hon'ble High Court in WP (C) No.9890/2019, while taking a decision regarding the other claims made by the applicant in this OA, with respect to his pay, pension, commutation and interest. No costs.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/