Central Administrative Tribunal - Chandigarh
Ravinder Kumar vs Bharat Sanchar Nigam Limited on 17 February, 2025
1- O.A. No. 645/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/645/2020
Pronounced on: 17.02.2025
Reserved on: 17.01.2025
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Ravinder Kumar (Retd. Office Superintendent (P) Group "C" Service),
aged about 61 years, resident of H. No.749, Block D, Palam Vihar,
Pakhowal Road, Ludhiana-141013.
.... Applicant
By Advocate: Mr. Arvinder Singh
Versus
1. Bharat Sanchar Nigam Limited through its General Manager, Harish
Chandra Mathur Lane, Janpath, New Delhi-110001.
2 Deputy General Manager (DGM) (Finance), Office of Chief General
Manager (BSNL) Punjab Circle, Sanchar Sadan, Plot No.2, Sector 34-A,
Chandigarh-160022.
3 Divisional Engineer Phones (Admn.), Office of General Manager
Telecom District BSNL, Patiala-147001.
4 Accounts Officer (Estt.), Office of General Manager Telecom District
BSNL, Ludhiana-141001.
... .Respondents
By Advocate: Mr. K.K. Thakur
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:
i) Issue directions to the respondents to immediately release the entire amount of Rs.2,33,184 to the applicant that has been withheld on account of recovery from the applicant on the ground of wrong fixation/re-fixation of pay, along with an 2- O.A. No. 645/2020 interest of 18% P.A. from the date of deduction to the date of actual payment.
(ii) Quash the Memo Dated: 28-05-2019 (ANNEXURE A-5) vide which the above said amount of the Applicant has been with held by the respondents on account of Recovery on the ground of wrong fixation of pay.
2. The factual matrix of the case is that applicant was a regular Employee of the Bharat Sanchar Nigam Limited (BSNL) and when he was working as a Senior Telephone Office Assistant (Sr. TOA) Respondent No.4 vide its letter dated 12.04.2016 (Annexure A-1) wrote to respondent No.4 that his pay was wrongly fixed w.e.f. 01.12.98 therefore the same be corrected. In pursuance of the above said letter Respondent No.4 vide its letter dated 06.06.2018 (Annexure A-2) re- fixed the pay of applicant and thereafter again vide letter dated 19.06.2018 (Annexure A-3) pay of the applicant was again re-regulated. Thereafter, the respondent No.4 vide its letter dated 24.04.2019 (Annexure A-4) wrote to Respondent No.2 that since the employee is going to retire on 31.05.2019 therefore take necessary action regarding deduction of excess payment made to the official. Then, vide letter dated 28.05.2019 (Annexure A-5), the applicant was informed by the Respondent No.4 that sanction from the competent authority has been received to pay the employee his due of Leave Encashment amounting to Rs. 7,39,410/- and an amount of Rs. 2,33,184 has been withheld from his leave Encashment on account of wrong fixation of pay. The applicant sent a Representation dated 16.12.2019(Annexure A-6) to the Respondent No.2 for the release of the amount. The respondent No.4 vide letter dated 17.01.2020 (Annexure A-7) asked the Respondent 3- O.A. No. 645/2020 No.2 to issue necessary action regarding deduction of excess payment made to the official due to wrong fixation of pay at an early date, but till date nothing has been done.
3. The contention of the applicant is that the impugned recovery is illegal in view of law settled by the Hon'ble Supreme Court of India in the case of State of Punjab and others etc. Vs Rafiq Masih (White Washer) (Civil Appeal No. 11527 of 2014 decided on 18-12-2014) (Annexure A-8.
4. The respondents have filed written statement. It has been stated therein that the pay fixation was done on the basis of DE Patiala letter dated 12.4.2016 by then A.O. (Estt.) Ludhiana vide memo dated 06.06.2018 and based on revised fixation the over payment of Rs.2,33,184/- has been calculated by A.O (Pay) Ludhiana vide letter dated 31.7.2018. The recovery of Rs.2,33,184/-was conveyed to Circle Office, Chandigarh in desired Performa for waiver of recovery in reference to Circle Office letter dated 27.8.2018 by SDE (HRD) Ludhiana. It has been contended that if a mistake had been committed earlier, even then the employee has a right to retain a benefit received by him out of such mistake is apparently wrong and cannot be permitted by a court of law. Reliance has been placed upon judgment of the Hon'ble Supreme Court in the case of Sunder Lal and Others Vs. State of Punjab, AIR 1970 P H 241 and a judgment of the Hon'ble High Court of Punjab and Haryana in the case of High Court of Punjab and Haryana & Others Vs. Jagdev Singh (CA No. 3500/20026 decided on 29.07.2016).
5. By filing rejoinder, the applicant has placed on record two letters (Annexures A-9 and A-10) indicating that recovery on account of wrong 4- O.A. No. 645/2020 pay fixation in respect of non-executives cadre of the BSNL has been waived off.
6. We have gone through the pleadings, perused the material available on record and considered the rival contentions of learned counsel for both sides.
7. As evident from the pleadings, the impugned recovery is the result of wrong pay fixation done by the respondents w.e.f. 01.12.1998. The error committed in pay fixation in the year 1998 was noticed by respondent no. 3 vide letter dated 12.04.2016, after lapse of 18 years, who wrote to Respondent no. 4 about this wrong pay fixation. The respondents took further two years to re-fix the pay and calculate the recovery @ Rs.2,33,184/-, vide letter dated 31.07.2018. Without issuance of any show cause notice of the impugned re-fixation and recovery, the respondents withheld the amount of leave encashment of the applicant @ Rs.2,33,184/-, at the time of retirement i.e. 31.05.2019, which is illegal and such action of the respondents is unjustifiable.
8. It is an admitted fact that there was no misrepresentation on the part of the applicant for the said pay fixation. It is also noticed that the respondents waived off the old pending recoveries related to wrong fixation of pay in respect of non executives, vide order dated 29.01.2019. It is also the averment of the respondents that the recovery of Rs.2,33,184/- was conveyed to the Circle Office, Chandigarh in desired profroma for waiver of recovery in reference to Circle Office letter dated 27.08.2018 by the SDE (HRD) Ludhiana. However the outcome of the above communication has not been placed on record by the respondents. It is also not understood when the respondents took 5- O.A. No. 645/2020 the decision to waive off old pending recoveries of non-executives vide letter dated 29.01.2019, then as to why the case of the applicant was not included for waiver despite the fact that he was Group 'C' employee, due to retire in May, 2019, and the recovery related to the wrong fixation done in the year 1998 which is not at all attributable to the applicant, which shows the lackadaisical attitude of the respondents.
9. Considering the facts of the case and in view of law laid by the Hon'ble Apex Court in Rafiq Masih's case (supra), the impugned recovery is not sustainable in the eyes of law. The present case falls within the few situations summarized by the Hon'ble Apex Court where under the recovery as a result of wrong payment by the employers, is impermissible. The relevant extract of the judgment is reproduced hereunder:-
"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 herein above, we may, as a ready reference, summarise 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).
(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."6- O.A. No. 645/2020
10. In view of the discussion hereinabove, the Original Application succeeds. The impugned order dated 28.05.2019 is quashed to the extent the leave encashment amounting to Rs.2,33,184/- was withheld thereby. The respondents are directed to release the withheld amount on account of wrong fixation of pay within a period of two months from the date of receipt of a copy of this order. No costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
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