Central Administrative Tribunal - Chandigarh
Naresh Kumari vs Bharat Sanchar Nigam Limited on 10 August, 2023
1 (OA No. 060/437/2021)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Chandigarh, this 10th day of August, 2023
OA No. 060/437/2021
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
1. Naresh Kumari, aged about 58 years, Retd.,
Office Superintendent (G)-Telecom Service (Group
"C" Service), Punjab Telecom Circle, Unit-Patiala TD,
now resident of # B-6/22 Gajjan Singh Colony, Near
22 No Phatak, Patiala-147001.
2. Chander Kanta Dhawan, aged about 60 years,
Retd., Office Superintendent (T)(Group "C" Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of # 61, KSM Road, Opposite NTC School No.3,
Rajpura-140401 (District Patiala).
3. Hardev Singh, aged about 58 years, Retd.,
Office Superintendent (P), (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of House No. 93, Sector 4-B, Shashtri Nagar, Mandi
Gobindgarh-147301 (District Fatehgarh Sahib).
4. Manjit Kaur, aged about 56 years, Retd.,
Office Superintendent (G), (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of # 15, Deep Nagar, Tripuri, Patiala-147004.
5. Paramvir Singh, aged about 59 years, Retd.,
Office Superintendent (G), (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of VPO-Gajewal, Tehsil-Samana, District Patiala-
147101.
6. Sukhwinder Singh, aged about 56 years,
Office Superintendent (G), (Group "C"Service),
2 (OA No. 060/437/2021)
Punjab Telecom Circle, Unit- Patiala TD, now resident
of # 325, Street No.4, Abchal Nagar, Patiala-147003.
7. Ena Kamboo, aged about 57 years, Retd.,
Office Superintendent (G), (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of House No. 292, Street No. 18, Guru Nanak Nagar,
Patiala 147001.
8. Meena Rani, aged about 56 years, office
Superintendent (G)(Group "C"Service), Punjab
Telecom Circle, Unit Patiala TD, now resident of
House No. 60/336 Village Karheri, Vidya Nagar, Gali
No. 1 K. Opposite Punjabi University, Patiala-147002.
9. Angrej Singh aged about 56 years, Retd.,
Office Superintendent. (G) (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of # 543, Hargobind Colony, Near Tata Mobile Tower,
Seel Road, Bahadurgarh-147021 (District Patiala).
10. Kuldeep Singh, aged about 57 years,
Retd.,Office Superintendent (P) (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of House No. 3033, Street No. 12, Shaheed Udham
Singh Nagar, Sirhind Road, Patiala-147004.
11. Neelam Arora, aged about 59 years, Retd.,
Office Superintendent (G)(Group "C"Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of VPO
Shambhu Khurd, Tehsil Rajpura, District Patiala-
140417.
12. Harjeet Kaur aged 58 years, Retd., Office
Superintendent (G) (Group "C"Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of
House No. 159, Ranjeet Nagar, Bhadson Road,
Patiala- 147005.
13. Pargat Singh,aged 57 years, Retd., Junior
Engineer-Telecom Service (Group "C"Service), Punjab
Telecom Circle, Unit Patiala TD, now resident of
House No. 28-6.Block-E, Street No. 12, SUS Nagar,
Jhill Road, Patiala-147004
3 (OA No. 060/437/2021)
14. Promila, aged 57 years, Retd... Office
Superintendent (G)(Group "C" Service), Punjab
Telecom Circle, Unit Patiala TD, now resident of #39
Gandhi Colony, Rajpura, District Patiala-140401,
15. Santosh Kumari aged 57 years. Retd., Office
Superintendent (P) (Group "C" Service), Punjab
Telecom Circle, Unit Patiala TD, now resident of
House No. House No. 185, Sector 25-B, Street No.2,
Dashmesh Colony. Mandigobindgarh, District
Fatehgarh Sahib- 147301
16. Veena Rani aged 58 years, Retd., Office
Superintendent (G)(Group "C" Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of
House No. 211, Street No. 2, Gurbax Colony, Patiala-
147003
17. Amardeep Kaur aged 57 years, Retd.,
Assistant Office Superintendent (P)(Group
"C"Service), Punjab Telecom Circle, Unit- Patiala TD,
now resident of House No. 127-A, Street No.5, Teg
Colony Patiala-147001.
18. Krishna Devi aged 59 years, Retd., Office
Superintendent (G) (Group "C" Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of
House No. 44, SST Nagar, Patiala-147003.
19. Mandip Kaur aged 59 years, Retd., Office
Superintendent (TL) (Group "C" Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of
House No. 61-D, Partap Nagar, Patiala-147001.
20. Raj Kumar aged 59 years, Retd., Office
Superintendent (TL)(Group "C" Service), Punjab
Telecom Circle, Unit Patiala TD, now resident of
House No, 118, Jai Jawan Colony, Badungar, Patiala-
147001
21. Daya Krishan, aged 58 years, Retd.,
Telecom Technician (TT) (Group "C" Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of
Sarain Patti Chowk. Telephone Colony, 132/3
Samana-147101. District Patiala.
4 (OA No. 060/437/2021)
22. Lachhman Singh aged 59 years, Retd.,
Retd., Telecom Technician (TT) (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of # 50, Bagrian Road, Ward No. 38, Opposite 66 KV
grid, Dhuri-Sangrur-148024.
23. Jasbir Singh aged 60 years, Retd., Office
Superintendent (T)(Group "C"Service), Punjab
Telecom Circle, Unit- Patiala TD, now resident of VPO
Saloudi Near Khanna, District Ludhiana-141417.
24. Bhagwan Singh,aged 57 years, Retd.,
Assistant Office Superintendent (T)(Group
"C"Service), Punjab Telecom Circle, Unit- Patiala TD,
now resident of House No. 3878, Ward No. 15,
Railway Road, Sirhind-140406 (District Fatehgarh
Sahib).
25. Jagtar Singh Kharoud aged 54 years, Retd.,
Office Superintendent (G) (Group "C" Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of Village Neelpur, Tehsil Rajpura, District Patiala-
140401.
26. Ranjit Singh,aged 58 years, Retd., Junior
Engineer -Telecom Service (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of Thuhi Road, Sharda Colony, gali No. 2, Near 40
No. Railway Fatak, Nabha-147201. (District Patiala).
27. Pardeep Kumar, aged 57 years, Retd., Junior
Engineer -Telecom Service (Group "C"Service),
Punjab Telecom Circle, Unit- Patiala TD, now resident
of House No. 113, Lal Kurti Bazar, Ambala cantt-
133001.
.........Applicants
(By Advocate : Sh. Arvinder Singh)
VERSUS
1. Bharat Sanchar Nigam Limited through its
Chairman, Harish Chandra Mathur Lane, Janpath,
New Delhi-110001. (E-Mail: [email protected])
5 (OA No. 060/437/2021)
2. Office of Chief General Manager (BSNL) Punjab
Circle, Sanchar Sadan, Plot No.2, Sector 34-A,
Chandigarh-160022 through DGM (Finance). (E-
Mail:cgm [email protected])
3. The General Manager Telecom (BSNL), Telecom
District Patiala-147001.(E- Mail: [email protected])
4. Divisional Engineer Phones (admn.), Office of
G.M.T.D., BSNL, Patiala- 147001.
...Respondents
(BY ADVOCATE: Sh. K.K. Thakur)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief (s):-
"(i) Quash the Letter Memo No. E-306/Sr. TOA/2017/KW/165 dated 05.03.2021 (Annexure A-
5) as the same is illegal, arbitrary and against the ratio of the law laid down by the Hon‟ble Supreme Court of India in Rafiq Masih‟s case (Annexure A-
7).
(ii) invalidate the action of the respondent department to affect recovery from the applicants on account of wrong fixation of salary pay.
(iii) Issue directions to the respondents that in the matter of the applicants follow the ratio of the judgement dated 18.12.2014 (Annexure A-7) passed by the Hon‟ble Supreme Court of India in CIVIL APPEAL NO. 11527 of 2014.
(iv) Issue directions to the respondents to immediately refund the entire amount of recovery in each individual case that has been recovered from the applicants on account of recovery from 6 (OA No. 060/437/2021) the applicants on the ground of wrong fixation/re-
fixation of pay, the details of which are with the department."
2. The factual matrix of the case herein is that all the applicants stand retired as regular Group "C" employees from Bharat Sanchar Nigam Limited (BSNL), Punjab Circle in the year 2020 as they all have taken VRS in January, 2020. In 2002-2004, all these applicants were promoted under OTBP Scheme on different dates giving them the next higher grade of IDA pay scale of Rs. 7100-200- 10100 (Annexures A-1 (i) to A-1(ix) respectively).
3. It is further averred that in the year 2019, respondents issued letters (Annexures A-2 (i) to Annexure A-2 (xviii) respectively) to all the applicants therein intimating them that their pay has been fixed irregularly under FR 22 (1) instead of fixing it under FR 22 (1) (a) (2), therefore, re- fixation of the pay is being done. Thereafter, pay of the applicants were re-fixed in 2019 by way of letters of different dates of 2019 but with effect from different dates way back in 2002-2004. It was mentioned at the bottom of these letters that if any overpayment is detected, then, the same will 7 (OA No. 060/437/2021) be recovered without any further notice. Despite the representations made by the applicants, the respondents went ahead with the recovery and vide Memo dated 05.03.2021(Annexure A-5) passed an order of recovery from the applicants. Thereafter, major part of the total amount of recovery of each applicant has been deducted from the retiral benefits of the applicants and the remaining will be deducted in the due course from the remaining retiral benefits (Annexure A-6(i) to Annexure A-6(xxvii).
4. The applicants relied upon State of Punjab Vs. Rafiq Masih (White Washer), 2015 (4) SCC 344 and submitted that as per the ratio of the said judgement, recovery from Group "C" employees is impermissible under the law. Moreover, recovery of an amount due beyond five years cannot be made. The applicants further relied upon the Apex Court judgement in Shyam Babu Verma & Ors. Vs. UOI & Ors., 1994(2) S.C.C. 521 and Col. B.J. Akkara (retd.) Vs. Govt. of India and Ors., 2006(11) SCC 709 and Syed Abdul Qadir & 8 (OA No. 060/437/2021) Ors. Vs. State of Bihar and others 2009(3) SCC 475.
5. The applicants further submit that where there is no fraud or misrepresentation on the part of the employee in pay fixation, then, the recovery from Group C & D employee on that ground is impermissible in law. Hence, the applicants are fully covered by Rafiq Masih‟s case (supra).
6. The applicants further allege that the department is using the policy of pick and choose as it is evident from the letter dated 29.01.2019 (Annexure A-8) that the department in some of the cases has waived off the recovery which amounts to total discrimination.
7. The respondents have filed the written statement justifying their action and submitted that the pay fixation of the applicants under FR 22(1)(a)(2) is lawful.
8. The respondents further submitted that the applicants consciously gave undertaking for refund of any excess payment arising out of wrong fixation at the time of opting for VRS 2019 and thus, their case is not at all covered by the ratio of 9 (OA No. 060/437/2021) Rafiq Masih‟s case (supra) and rather the action of respondents to effect recovery is fully supported with decision of Jabalpur Bench of this Tribunal in the matter of N.K. Nandanwar Vs. CMD BSNL & Ors. as in this case, the applicants consciously given their undertakings of refund in case of excess payment. The respondents further relied on a judgement passed by Hon‟ble Punjab and Haryana High Court in High Court of Punjab & Haryana Vs. Jaidev Singh (2016) 14 SCC 267 which held that the principle of non-recovery from retired employee would not apply in the case of employee put on notice at the time of payment that any excess payment would be required to be refunded. Thus, the applicants are stopped to raise any hue and cry on the issue.
9. The applicants have filed the rejoinder reiterating her stand as stipulated in the Original Application. They further submitted that in the present case, the re-fixation of pay is not in dispute rather only recovery on account of refixation of pay is in dispute. Moreover, as far as giving of separate undertaking by individual applicants is concerned, 10 (OA No. 060/437/2021) these undertakings are neither specific nor was given at the time when the alleged increment was given to the applicants way back between 2002- 2004. As far as the reliance of respondents on the judgement in Jagdev Singh‟s case (supra) is concerned, the applicants referred to the the OA No. 60/729/2017 titled Labh Singh and Ors. Vs. UOI & Ors. decided on 30.05.2018 (Annexure A-9). The relevant paragraph No. 8 of the said judgement is reproduced as herebelow:-
"8. We are afraid that the respondents can apply ratio laid down in the case of Jagdev Singh (supra) in the present case because the undertakings which the respondents are relying upon were not given by the applicants when they were given higher pay i.e. in the year 2001. The undertakings are of 2015, which the applicants had given at the time of their retirement. It is undisputed truth that every employee is under obligation to give an undertaking at the time of retirement as if at that point of time, office commits any mistake then department may not suffer. Thus, undertaking given in 2015 cannot be used as tool to effect recovery of amount which they paid from 2001 to 2004, therefore, ratio laid down in the case of Jagdev Singh (supra) is not applicable."
The above judgement has not been challenged by the respondents anywhere and has been complied with and therefore, the same has attained finality and the respondents are bound by it.
10. I have heard the learned counsels for the parties and have carefully gone through the pleadings on 11 (OA No. 060/437/2021) record and also the case law relied upon by the parties.
11. The issue involved in the present OA is no longer res integra. It is an admitted fact that the applicants herein are Group „C‟ employee. Moreover, it is also an admitted fact that there was no misrepresentation of facts or fraud attributable on the part of the applicants. The applicants themselves admit that they are not against the refixation of pay, but the recovery on account of refixation is not permissible from the Group C employees.
12. In a latest judgement by the Apex Court in Thomas Daniel Vs. State of Kerala & Ors. in Civil Appeal No. 7115 of 2010 decided on 02.05.2022, 2022(2) S.C.T. 722, the Hon‟ble Supreme Court held that if excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying wrong principle for calculating pay/allowance or on the basis of particular interpretation of rule/order which is subsequently found to be erroneous, such excess 12 (OA No. 060/437/2021) payment of emoluments or allowances are not recoverable.
13. Undoubtedly, the excess amount that has been paid to the applicants was not because of any misrepresentation or fraud on his part and the applicant does not seem to have any knowledge of the excess amount of salary being paid to them. Applicants being Group "C" employees are fully covered by the Apex Court judgement in Rafiq Masih (supra) and no recovery of excess amount paid to them can be made.
14. The present controversy has also been decided by this Tribunal in several cases including Labh Singh (supra) and Prem Chand Sharma & Os. In OA No. 060/1069/2018 decided on 24.07.2023 and the Bench has allowed these OAs by delivering a comprehensive judgement on the issue.
15. In view of the law discussed hereinabove, the present Original Application is allowed. The action of the respondents in affecting recovery from the applicants is declared illegal and arbitrary. The letter dated 05.03.2021 (Annexure A-5) is hereby quashed and set aside. The respondents are 13 (OA No. 060/437/2021) directed to refund the amount already recovered from the applicant forthwith.
16. However, there shall be no order so as to costs.
(RAMESH SINGH THAKUR) Member (J) ND*