Central Administrative Tribunal - Delhi
Sri Krishan vs Mahanagar Telephone Nigam Limited on 14 March, 2024
1
OA 1214/2020
C-4/item-22
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./1214/2020
Order reserved on :07.02.2024
Order pronounced on :14.03.2024
Hon'ble Dr. Chhabilendra Roul, Member (A)
Sri Krishan, Aged-62 Years,
S/o Late Sh. Tek Chand,
R/o 811, Main Road,
Dichaon Kalan,
South West Delhi, Delhi-110043
Earlier Working as Driver
With GM East, Karol Bagh,
Mahanagar Telephone Nigam Limited,
Staff No.DR-11183, Group `C' ...Applicant
(Through Mr. Vaibhav Kalra with Ms. Neha Bhatnagar,
Advocates)
VERSUS
1. Union of India
Through its Secretary,
M/o Communications, Sanchar Bhawan,
Department of Telecom,
New Delhi-110002.
2. Mahanagar Telephone Nigam Limited,
Through the Chairman & Managing Director,
Khurshid Lal Bhawan,
New Delhi-110050
3. General Manager (East)
Karol Bagh Exchange
Telephone Exchange Building,
Pusa Road, New Delhi-110005
4. Accounts Officer (P&A)
Mahanagar Telephone Nigam Limited,
Tis Hazari Telephone Exchange,
Delhi-110054 ...Respondents
2
OA 1214/2020
C-4/item-22
(Through Mr. Chandan Kumar with Ms. Kirti Atri, Mr. S.K.
Tripathi for Mr.Gyanendra Singh, for R-1)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant seeking the following reliefs:
"8. (i) Set aside the orders dated 24.09.2019 and 06.11.2019 issued by the Respondent No. 4 as well as the letter dated 24.07.2019;
(ii) Direct the Respondents to release the amount of Rs. 7,96,939, legally withheld from the retiral benefits of the Applicant in terms of the judgment passed by the Hon'ble Supreme Court in the matter of State of Punjab v Rafiq Masih (White Washer), (2015) 4 SCC 334;
(iii) Release the pension of the Applicant for the period of September 2018 till September 2019 illegally withheld by the Respondents as well as the retiral benefits of the Applicant illegally withheld till date by the Respondents;
(iv) Grant interest @ 18% p.a. on the delayed payment from the date the amount became due till the date the payment is made;
(v) Pass such further order(s) and/or give direction(s) as deemed fit and proper in the facts and circumstances of the case."
2. Brief facts of the case is that the present applicant joined MTNL on 28.07.1984 as a Driver. After serving for more than three decades with the respondents, the applicant retired on 31.08.2018. Vide order dated 24.09.2019, the respondents informed the applicant that his pay has been refixed and accordingly an overpayment of Rs.7,68,111/- 3 OA 1214/2020 C-4/item-22 had been worked out. By the said order, the respondents have stated that the said amount will be recovered from the leave encashment and gratuity of the applicant. 2.1 The applicant received the CPF amount and a monthly pension of Rs.1780/- per month from 1.10.2019 and the remaining retirement benefits were not released to him. Vide letter dated 6.11.2019, the respondents again informed the applicant that an overdue amount of Rs.7,96,939/- was due from him. He was given three days time for submitting objection, if any, in respect of recovery. The applicant also received a copy of the Service Book as well as calculation sheet which reflected that the alleged overpayment was made from November, 1998 till the time of his retirement. Being aggrieved, the applicant filed the present OA seeking the aforementioned relief.
3. Notices were issued to the respondents and they have filed their counter reply, to which the Applicant has also filed rejoinder.
4. The applicant in his OA as well as by his counsel through the arguments has tendered the following grounds in support of the reliefs claimed by him. 4 OA 1214/2020 C-4/item-22 4.1 Learned counsel for the applicant states that no opportunity was given to the applicant before effecting refixation of his pay scale. Only vide letter dated 6.11.2019 the respondents gave three days time to the applicant to file objections, if any, with regard to final amount of recovery issued vide said letter i.e. Rs.7,96,939/-. In view of this, learned counsel `for the applicant avers that the principle of natural justice has been completely violated by the respondents while refixing the pay and effecting recovery of such huge amount.
4.2 The second ground taken by the applicant is that the respondents are barred by law to effect recovery for overpayment starting from 1998. Learned counsel for the applicant cites the judgment in State of Punjab and others Vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC
334. In paragraph 12 of the said judgment, the Hon'ble Apex Court has held that:
"12. it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).5 OA 1214/2020
C-4/item-22
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) 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 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."
4.3 Learned counsel for the applicant states that clauses
(i), (ii) and (iii) of the above quoted paragraph 12 in Rafiq Masih (supra) case are attracted in this case. Subsequently, the judgment in Rafiq Masih case was affirmed by the Apex Court in Thomas Daniel Vs. State of Kerala & Ors. in Civil Appeal No.7115 of 2010. Moreover, the Union of India in pursuance of Rafiq Masih case issued a detailed guideline through DoP&T vide OM dated 2.03.2016 directing all the ministries and departments to deal with the issue of wrongful and excess payment to government servants in accordance with the judgment of the Hon'ble Apex Court in Rafiq Masih (supra) case. Learned counsel for the applicant further refers to the order of this Tribunal in OA No.1858/2019, Sh. Satya Narain Shahni Vs. The Chief Managing Director, MTNL Corporate Office, New Delhi 6 OA 1214/2020 C-4/item-22 and others. In a similar situation, this Tribunal quashed the recovery order in favour of the applicant therein, relying on the ratio of the Hon'ble Apex Court in Rafiq Masih (supra) case. The same was challenged by the respondents in W.P. (C) 10023/2023, Mahanagar Telephone Nigam Limited Vs. Satya Narain Shahni. The Hon'ble High Court of Delhi vide order dated 8.08.2023 upheld the decision of this Tribunal dated 11.10.2022.
4.4 Drawing parallel with the cases cited above, learned counsel for the applicant states that the recovery orders dated 24.09.2019 and 6.11.2019 by the respondents are contrary to the law position and hence illegal. Therefore, the relief sought by the applicant should be granted and the applicant should be granted adequate compensation by way of interest on delayed payment of retirement benefits, which have been withheld vide the impugned orders.
5. Per contra, the learned counsel for the respondents states that there is no illegality in refixation of the pay scale of the applicant. The applicant has failed to substantiate that any irregularity has been committed in refixing the pay scale of the applicant with effect from 1998. The applicant has enjoyed excess payment of public money which is often considered as tax payers money. Such tax payers money 7 OA 1214/2020 C-4/item-22 does not belong to the applicant. The excess payment may be due to a bonafide mistake but nevertheless this excess payment is tax payers money. Any amount paid and received without the authority of law can always be recovered barring in a few exceptional cases of extreme hardship. However, such exceptional hardship cases cannot be invoked as a matter of right in cases of recovery effected by the authorities from its employees. In support of his argument, learned counsel for the respondents cites Rules 71 and 73 of CCS (Pension) Rules, 1972 which read as follows:
"71. Recovery and adjustment of Government dues (1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement.
(2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of the '[retirement gratuity] becoming payable.
(3) The expression 'Government dues' includes -
(a) dues pertaining to Government accommodation including arrears of licence fee [as well as damages for the occupation of the Government accommodation beyond the permissible period after the date of retirement of the allottee)] if any;
(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961)."
xxxx xxxx xxxx xxxx "73. Adjustment and recovery of dues other than dues pertaining to Government accommodation 8 OA 1214/2020 C-4/item-22 (1) For the dues other than the dues pertaining to occupation of Government accommodation as referred to in Clause (b) of sub-rule (3) of Rule 71, the Head of Office shall take steps to assess the dues [one year] before the date on which a Government servant is due to retire on superannuation or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.
(2) The assessment of Government dues referred to in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of the retirement of the Government servant.
(3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of (retirement gratuity] becoming payable to the Government servant on his retirement."
5.1 Learned counsel for the respondents states that the Rafiq Masih judgment of the Hon'ble Apex Court has never considered the issue regarding the statutory position contained in Rules 71 and 73 of the aforesaid Rules. In view of the judgment of the Hon'ble Apex Court in Chandi Prasad Uniyal & ors. Vs. State of Uttarakhand & ors., Civil Appeal No.5899/2012, when there is a statutory provision of recovery of irregular or excess payment, the government has every right to recover this amount.
5.2 Learned counsel for the respondents further states that the applicant has not approached the Tribunal after exhausting the administrative remedies available to him. He has directly approached the Tribunal without submitting any representation to the respondents. This is violative of 9 OA 1214/2020 C-4/item-22 the statutory provision contained in Section 20 of the Administrative Tribunals Act, 1985. In such cases, the Courts have rejected the OA. In support of his argument, the learned counsel for the respondents has cited the judgment of the Tribunal in TA 22/2011, P. Jayaprakash Vs. Union of India and others decided on 26.09.2011. Particularly, he refers to paragraphs 9, 10 and 12 of the said judgment which read as follows:
"9. As we find that the respondents counsel has taken a preliminary objection that the present application has been filed without exhausting the appellate remedy and, therefore, the present application is pre-mature and is not maintainable, it would be necessary to deal with this aspect of the case first.
This Tribunal is the creature of a statute viz. the Administrative Tribunals Act, 1985. Section 20 of the Act provides as under:
"20. Application not to be admitted unless other remedies exhausted-
(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.10 OA 1214/2020
C-4/item-22 (3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
In a recent Judgement of the Hon'ble Apex Court in the matter of D.C.S. Negi v. of India decided on 07.03.2011 in SLP (C) No. 7956/2011 (CC No. 3709/2011) Apex Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act "cannot abdicate its duty to act in accordance with e statute under which it is established." Therefore, in our view, the provisions of the Administrative Tribunals Act, 1985 have to be strictly followed, and we are duty bound to first consider whether the application filed by the applicant is within the provisions of the Administrative Tribunals Act, 1985. As already observed above, Section 20(1) mandates that an application should not be admitted (ordinarily) unless the applicant has availed of all the remedies available to him under the service rules.
10. We find that the applicant has not appealed to the higher authority with regard to the grievance raised by him in this TA, and has thus approached this Tribunal without exhausting the available remedy to him. The learned counsel for the respondents has stated, across the Bar, that under the service Bye Laws of Lalit Kala Akademi, there is a provision for an appeal to the Chairman of the Akademi. The applicant needs to take recourse to the remedy of appeal, which is available to him, before approaching this Tribunal. Therefore, in our view, as per Section 20 of the Administrative Tribunals Act, 1985, the application is not maintainable being premature.
xxxx xxxx xxxx xxxx
12. In view of the above, without expressing any of our opinion on the merits of the case, the OA is dismissed as premature, but the applicant is given liberty to first exhaust the remedy available within a reasonable period and thereafter, if any grievance survives, to approach this Tribunal, if so advised, in accordance with law. No costs." Learned counsel for the respondents avers that on account of violation of the provisions of Section 20 of the Administrative Tribunals Act, 1985, the present OA should be dismissed.
11OA 1214/2020 C-4/item-22
6. I have heard arguments of the learned counsels for the parties and perused the record of the case thoroughly. 6.1 I do not agree with the contention of the learned counsel for the respondents that the Apex Court in Rafiq Masih case (supra) has not considered the judgment in Chandi Prasad Uniyal (supra) case. Rather it is the other way round. While the Division Bench was seized of the Rafiq Masih case, a reference was made to a Three Judge Bench of the Apex Court to find whether there was a conflict between the judgment in Chandi Prasad Uniyal case, on the one hand and Shyam Babu Verma Vs. Union of India, (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana, 1995 Supp (1) SCC 18, on the other. The Three Judge Constitution Bench of the Apex Court in the said reference in Rafiq Masih case, vide its order dated 8.07.2014, clarified that there is no conflict between Chandi Prasad Uniyal case (supra) invoking Article 136/141 of the Constitution of India and Shyam Babu Verma (supra) and Sahib Ram (supra) invoking Article 142 of the Constitution of India. The Chandi Prasad Uniyal case (supra) has stated that in certain cases the State has the right to recover excess amount in case the payment is due to any misrepresentation or fraud on the part of the recipient. In para 17 of the judgment in Chandi Prasad Uniyal case (supra), it has been stated that: 12 OA 1214/2020
C-4/item-22 "We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered."
The Rafiq Masih (supra) case has expanded few instances as mentioned in Chandi Prasad Uniyal case (supra) and said that in the instances and circumstances mentioned in the said case, it is impermissible in law to recover excess amount paid to the government servant on account of irregular or wrong pay fixation or allowances. The judgment of the Apex Court in Rafiq Masih (supra) case has further been reiterated and reaffirmed by the Apex Court in Thomas Daniel (supra) case. The ratio of the judgment in Rafiq Masih (supra) and Thomas Daniel (supra) case is squarely applicable in the instant case.
6.2 In the instant case, the issue pertains to payment of retirement benefits to a group `C' employee of the MTNL.
Non-payment of retirement benefits after his superannuation in violation of the settled law of the Apex Court has created an extreme hardship case to the applicant. In view of this, the technical objection raised by the learned counsel for the respondents that the applicant should have exhausted all the administrative remedies before approaching this Tribunal for seeking any relief is negated. However, a plain reading of Section 20 of the AT Act, 1985 shows that the 13 OA 1214/2020 C-4/item-22 Tribunal shall not ordinarily admit an application. The word used is `ordinarily' which implies that the Tribunal has discretion to allow such OAs in exceptional cases. In this case, non-payment of retirement benefits to a group `C' employee like the present applicant is an extreme case of hardship and it falls under the category of exceptional cases. Hence, the averment made by the learned counsel for the respondents is not accepted.
6.3 In view of the above, the impugned orders dated 24.09.2019, 6.11.2019 as well as letter dated 24.07.2019 qua recovery of excess payment to the applicant are quashed. The respondents are directed to release the withheld retirement benefits of the applicant and refund the amount of Rs.7,96,939/- deducted from his retiral benefits, within a period of eight weeks from the date of receipt of a certified copy of this order.
7. The OA is disposed of in the above manner. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /dkm/