Central Administrative Tribunal - Jaipur
Purushottam Shrivastava vs M/O Mines on 17 November, 2017
"x Tmeu.- OA No. 291/630/2016 with MA No. 291/389/2017, 1 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No, 291/391/2017 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION NO. 291/630/2016 with MISC. APPLICATION NO. 291/389/2017, ORIGINAL APPLICATION NO. 291/631/2016 MISC. APPLICATION NO. 291/390/2017, ORIGINAL APPLICATION NO. 291/632/2016 MISC. APPLICATION NO. 291/391/2017 Order Reserved on: 27.10.2017 DATE OF ORDER: \1}-\\-202\'). CORAM HON'BLE MR. SURESH KUMAR MONGA, JUDICIAL MEMBER OA No. 291 6300/2016 with MA No. 291/389/2017 Dr. Girish Malhotra S/o Shri Raj Hans Malhotra, aged around 63 ears, R/o 4-A; Indira Nagar, Gopalpura Mod, Jaipur, Rajasthan, Earlier working 4S Director, GSI, W.R. Jaipur (Group-A service) .. Applicant mr. Amit Mathur, counsel for applicant. VERSUS 1. union of India through its Secretary, Ministry of Mines, . pepartment of Mines, Shastri Bhawan, Dr. Rajendra Prasad road, New Delhi. 5 Geological Survey of India through its Director General, 27 - + Jawaharlal Nehru Road, Kolkata. Additional Director General and Head of the Department, Geological Survey of India, GSI Complex, Khaniz Bhawan 15-16, jJnalana Doongari, Jaipur. 4, senior Pay & Account Officer (PAO), GSI Complex, Khaniz Bhawan, 15-16, Jhalana Doongari, Jaipur. | ..sReSpondents Mr. Lalit Mohan Bhardwaj, counsel for respondents. OA No. 291/631/2016 with MA No. 291/390/2017 Purushottem Shrivastava S/o Shri H.S.N. Shrivastava, aged aroun years, R/o 111/191, Vijay Path, Madhyam Marg, Mansarovar, Jaipur. Earlier worki (Group-A) service. orking as Dy. DG, GSI, WR, Jaipur | .. Applicant Mr. Amit Mathur, counsel for applicant. " . OA No. 291/630/2016 with MA No. 291/389/2017, 2 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017 VERSUS 1. Union of India through its Secretary, Ministry of Mines, Department of Mines, Shastri Bhawan, Dr. Rajendra Prasad | Road, New Delhi. 2. Geological Survey of India through its Director General, 27 - Jawaharlal Nehru Road, Kolkata. i 3. Additional Director General and Head of the Department, : Geological Survey of India, GSI Complex, Khaniz Bhawan, : 15-16, Jhalana Doongari, Jaipur. | 4. Senior Pay & Account Officer (PAO), GSI Complex, Khaniz Bhawan, 15-16, Jhalana Doongari, Jaipur. ....Respondents Mr. Lalit Mohan Bhardwaj, counsel for respondents. OA No. 291/632/2016 with MA No. 291/391/2017 Z. Iqbal S/o late Hakimuddn Nisar, aged around 62 years, R/o 46, Kidwai Nagar, Jaipur, Rajasthan. Retired as Dy. Director General, GSI, Jaipur (Group-A service). .. Applicant Mr. Amit Mathur, counsel for applicant. VERSUS 1. Union of India through its Secretary, Ministry of Mines, Department of Mines, Shastri Bhawan, Dr. Rajendra Prasad Road, New Delhi. 2. Geological Survey of India through its Director General, 27 -- Jawaharlal Nehru Road, Kolkata. 3, Additional Director General and Head of the Department, Geological Survey of India, GSI Complex, Khaniz Bhawan, 15-16, Jhalana Doongari, Jaipur. 4, Senior Pay & Account Officer (PAO), GSI Complex, Khaniz Bhawan, 15-16, Jhalana Doongari, Jaipur. »+.+-R@Spondents Mr. Lalit Mohan Bhardwaj, counsel for respondents. ORDER
With the consent of learned counsels for the parties, O.A. No. 291/630/2016, O.A. No. 291/631/2016 and O.A. No. 291/632/2016 are taken up together for disposal as a common question of law and facts is involved in all these three cases.
OA No. 291/630/2016 with MA No. 291/389/2017, 3 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017
2. For the sake of convenience, the facts are culled out from | O.A. No. 291/630/2016 (Dr. Girish Malhotra vs. Union of India & Ors.). The applicant, who was working as Director in Geological | Survey of India, had retired on 31% August, 2013 after attaining | the age of superannuation. During the tenor of his service, the Government of India, Ministry of Finance, Department of Expenditure, had issued an Office Memorandum dated 29.08.2008 making therein a provision for drawl of the Transport Allowance @ Rs. 7,000/- per month + D.A. thereon for the officers drawing Grade Pay of Rs. 10,000/- and Rs. 12,000/- and those in the HAG scale who were entitled to use official cars in terms of earlier Office Memorandum dated 28.01.1994.
3. The applicant was also in the Grade Pay of Rs. 10,000/- w.e.f. 01.04.2012. However, the said Grade Pay of Rs. 10,000/- was allowed to him as Non Functional Upgradation. It is the pleaded case of the applicant that he had been continuously drawing the Grade Pay of Rs. 10,000/- from 01.04.2012 to 31.08.2013 i.e. the date of his superannuation. The respondents allowed the Transport Allowance to applicant @ Rs. 7,000/- per month + D.A. from 01.04.2012 to 31.08.2013 and the said amount was paid to him as arrears in the month of September, 2014.
4. However, the respondents issued a communication to the i applicant on 16" October, 2015 directing him to deposit an amount of Rs. 1,13,506/- drawn by him as Transport Allowance. The said communication was followed by another letter dated 03.05.2016 wherein the applicant was again directed to deposit OA No. 291/630/2016 with MA No. 291/389/2017, 4 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017 the amount of Rs. 1,13,506/- allegedly drawn by him in excess towards Transport Allowance. The applicant submitted a representation dated 23.07.2016 and by referring the Government of India, Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training, Office Memorandum dated 02"° March, 2016 opposed the aforesaid recovery. However, the respondents issued a letter dated 03.05.2016 (Annexure A/1) threatening the applicant that in case he failed to deposit the aforesaid amount of Rs. 1,13,506/- then the same shall be recovered from his pension. Aggrieved by the aforesaid action of the respondents, the instant O.A. has been preferred by the applicant under Section 19 of the Administrative Tribunals Act, 1985.
5. The respondents by way of filing a joint reply, joined the defence and opposed the O.A. It has been pleaded that the applicant was allowed the Grade Pay of Rs. 10,000/- as Non Functional Upgradation and since it was not an actual Promotion, therefore, he was not entitled to draw the Transport Allowance. pursuant to CHQ, GSI circular No. G-14011/1/Circular/Ac- 1/2015 dated 01.10.2015, the issue was re-examined and the recovery of excess amount paid to the applicant was Ordered. The action in affecting the recovery has been sought to be justified on the ground that the applicant was not entitled to draw the Transport Allowance as he was not granted the actual promotion in the Grade Pay of Rs. 10,000/-. It has further been asserted that some of the other officers who had drawn the said Transport Allowance in excess have already deposited their due amount and also the recoveries have been made from the OA No. 291/630/2016 with MA No. 291/389/2017, OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017 With these assertions, the respondents salaries of the officers.
have opposed the O.A. and prayed for dismissal of the same.
Heard learned counsels for the parties and perused the
6. record.
7. Learned counsel for the applicant contended that the applicant stood retired on 31% August, 2013 and the amount in question was paid to him as arrears by the respondents in the month of September, 2014 while relying upon O.M. dated 29.08.2008. He contended that in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer) and Ors. (2015) 4 SCC 334 : (2015) 2 SCC (L&S) 33, no recovery can be affected from a retired He further contended that while relying upon the employee.
principles laid down in the case of State of Punjab & Ors. vs. the Government of ih (White Washer) and Ors. (supra), Rafiq Mas India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, has also issued an Office Memorandum dated 02" March, 2016 and in view of the said O.M., no recovery can be affected from the applicant. He, thus, submitted that the order of recovery against the applicant cannot be sustained and the same deserves to be set aside.
8. Per contra, learned counsel for the respondents argued that the applicant had wrongfully drawn the benefit of Transport Allowance and, therefore, the respondents are within their rights to affect the recovery of the said amount. He further contended that in view of an undertaking given by the applicant on ma] + i OA No. 291/630/2016 with MA No. 291/389/2017, 6 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017 06.04.1987, he is liable to refund the amount of excess payments made to him. He relied upon a judgment of the Hon'ble Supreme Court in the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh AIR 2016 Supreme Court 3523, and contended that in view of the undertaking given by the applicant, the respondents are within their rights to affect the recovery of the amount of excess payments made to him towards Transport Allowance. With these contentions, he prayed for dismissal of the O.A.
9. Considered the aforesaid contentions of learned counsels for the parties. The controversy herein earlier also came up for consideration before this Bench of the Tribunal in OA No. 291/00202/2016 (Ashok Prim vs. Union of India & Ors.). A two Member Bench of this Tribunal at Jaipur in the aforesaid case vide order dated 30.05.2016 had taken a view that being a Group 'A' officer, the applicant should have known that he is not entitled to the Transport Allowance because as per para 3 of OM dated 29.08.2008, he is not entitled to use the official car as he was drawing Grade Pay of Rs. 10,000/- on the basis of Non Functional Upgradation. This was also noticed from the record that regarding entitlement of Transport Allowance there were several clarifications and views sought at different levels and the picture remained unclear for considerable time. In the said order dated 30.05.2016, after holding that the applicant was not entitled to draw the Transport Allowance as per OM dated 29th August, 2008, the order of recovery was held to be bad and the same was quashed, in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq OA No. 291/630/2016 with MA No. 291/389/2017, 7 OA No. 291/631/2016 with MA No. 291/390/2017 & OA No. 291/632/2016 with MA No. 291/391/2017 Masih (White Washer) and Ors. (supra). However, the learned counsel for the respondents sought to draw a distinction by referring an undertaking given by the applicant on 06.04.1987 and the judgment of the Hon'ble Supreme Court in the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh (supra) The argument of learned counsel for the respondents is without any substance as a perusal of undertaking dated 06.04.1987 reveals that the same was given by the applicant more than two decades ago with regard to refund of any excess payments that may be found to have been made as a result of fixation of pay. The OM dated 29.08.2008 pursuant to which the payment towards Transport Allowance was made to the applicant cannot be construed as a subject matter of said undertaking. Equally untenable is the argument of the learned counsel for the respondents when he relies upon the judgment of Hon'ble Supreme Court in the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh (supra) in order to seek a departure from the principles laid down by the Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafig Masih (White Washer) and Ors. (supra). In the case of High Court of Punjab & Haryana & Ors. vs. Jagdev Singh (supra), the employee had Opted for revised pay scale and while submitting that option, he had furnished an undertaking to the effect that he would be liable to refund any excess payment made to him. While relying upon the said specific undertaking, the Hon'ble Supreme Court took a view that the recovery of amount of excess payment was justified. In the instant case, the applicant had retired on 31.08.2013 and he was made the payment of Transport Allowance as arrears by the respondents in the month of September, 2014 while interpreting the Office Memorandum dated 29% August, 2008 in his favour. Neither there was any misrepresentation on the part of the applicant nor he had played any fraud upon the respondents in order to claim the said allowance. Under these circumstances, it will be difficult to take a different view than the view earlier taken by this Bench of the Tribunal in OA No. 291/00202/2016 (Ashok Prim vs. Union of India & Ors.).
10. In the conspectus of discussions made in the foregoing paras, the orders of recovery pursuant to communication dated 16.10.2015 in all the aforesaid three OAS deserve to be quashed.
11. Consequently, the orders of recovery pursuant to communication dated 16.10.2015 in O.A. No. 291/630/2016, O.A. No. 291/631/2016 and 0.A. No. 291/632/2016 are hereby quashed.
12. Accordingly, O.A. No. 991/630/2016, 0.A. No. 291/631/2016 and O.A. No. 291/632/2016 stand allowed to the extent indicated hereinabove. In view of the order passed in the OAs, all the MAS are rendered infructuous and disposed of accordingly. However, there shall be no order as to costs.
4poo seme eee 4 (SURESH KUMAR MONGA) JUDICIAL MEMBER Kumawat