Central Administrative Tribunal - Madras
B Prabavathy vs M/O Information And Broadcasting on 31 March, 2023
1 OA 676/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.676/2016
Dated Friday, the 31st day of March, Two Thousand Twenty Three
CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER
&
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
B.Prabavathy, UDC Retired,
Doordarshan Kendra, No.40/30,
Everest Colony, Mugappair (East)
Chennai 600 037. ...Applicant
By Advocate M/s Paul & Paul
Vs.
1.Union of India,
Rep., by Secretary, Ministry of Information and Broadcasting,
A wing, Shastri Bhavan, New Delhi 110001.
2.The Director General,
All India Radio, Akasvani Bhavan,
Parliament Street, New Delhi 110 001.
3.The Deputy Director General (E),
All India Radio & Doordarshal Kendra,
Chepauk, Chennai 600 005.
4.Pay & Accounts Officer,
Doordarshan, Chepauk,
Chennai 600 004. ...Respondents
By Advocate Mr.M.Kishore Kumar SPC
2 OA 676/2016
ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"(i)for quashing of the order Nos.F.No.Misc.1/330/2012-PPC dated 31.12.2015 of the 2nd respondent and DDK/CHE/27(2)2014-A1/GK dated 21.01.2016 of the 3rd respondent as illegal and void and
(ii)for a consequential direction to the respondents to restore the pay of the applicant as originally fixed in terms of the 2nd respondent's letter dated 03/04.10.2012."
2. The brief facts of the case as stated by the applicant are as follows:
The applicant joined the services as LDC on 26.12.1983 in the office of the respondents. Subsequently she was promoted as UDC on 30.05.1991 in the pay scale of Rs.4000-6000(pre-revised) and upon completion of 24 years, she was granted financial upgradation under ACP scheme from 26.12.2007 in the pay scale of Rs.5500-9000(pre-revised). The applicant was granted 3rd financial upgradation under MACP scheme w.e.f 26.12.2015 in the pay scale of Rs.9300-34800 with GP Rs.4600 and she retired as a UDC on the said pay scale on 29.02.2016.
2.1 After introduction of the VI CPC, after the merger of the pay scales of Rs.5000-8000, Rs.5500-9000 & Rs.6500-10500, into the pay scale of Rs.6500-10500, the basic pay of the applicant has been fixed by taking into the pre-revised scale of Rs.5500-9000 to arrive the basic pay in the revised pay structure w.e.f 26.12.2007 as per her option. Pursuant to the said merger, a doubt has aroused whether the pre-revised scale or the merged scale has to be taken for fixing the basic pay in the revised pay scale. The 3rd respondent office had issued a clarification dated 04.10.2012 the pay fixation will be made as per illustration 4A in accordance with Note 2A below Rule-7 of the VI CPC gazette notification. Based on the said instruction, the applicant's pay was 3 OA 676/2016 refixed by way of proceedings dated 03.10.2012, wherein the merged/upgraded scale of Rs.6500-10500 was taken for the purpose of arriving the basic pay in the revised pay structure. Again vide clarification dated 31.12.2015 it has been pointed out that the existing pay as on 01.01.2006 has to be multiplied by a factor 1.86 and rounded the resultant figure to the next multiple of ten. Accordingly, an order dated 04.01.2016 along with a consequential order dated 21.01.2016 was issued revising her pay from 26.12.2007 by withdrawing the earlier fixation thereby the applicant was entitled only to the pay of Rs.19060 instead of Rs.20870. After revision of the pay vide order dated 21.01.2016 as per differential pay, the applicant had received from 26.12.2007 till 29.02.2016, the total amount worked out to be Rs.2,11,993. The grievance of the applicant is that the DCRG and other pensionary benefits has not settled to her in view of the above development and she was given to understand by the office of the 3rd respondent that from her retirement benefits, the so called excess payment of Rs. 2,11,993 would be deducted and balance would be paid to the applicant. Since no notice has been issued to the applicant she is not aware of the exact circumstances, under which the impugned revision is effected. Hence the applicant has submitted her representation to the 2nd respondent on 18.02.2016 followed by another representation dated 21.03.2016 but till date there is no reply for the same.
The applicant has further submitted that though the Prasar Bharati, Chennai Office vide communication dated 22.03.2016 to the Director General, AIR, New Delhi has recommended her case for waiver of recovery as done in similarly situated employee Sri.A.S.Rajagopal, her case has not considered for waiver of recovery. Aggrieved she has filed the present OA.
3. After notice the respondents have appeared through their counsel and filed their counter in detail refuting the claim of the applicant and contended that the pay fixation of the applicant is not done according to the CCS(RP) 4 OA 676/2016 Rules 2008, but by wrong interpretation of rules which resulted in unlawful gains to the applicant. The applicant cannot stake claim for benefits which is legally not valid. They have further stated that the case of the applicant is different from the other category of employees referred to by the applicant and in their cases matter is still under consideration and necessary action will be taken as and when clarifications are received from the competent authority and hence recovery is not being made from their terminal benefits. In support of their contentions, they has relied upon the decision of the Hon'ble Supreme court in the matter of Chandi Prasad Unniyal 2012 (8) SCC 417 wherein the Apex court has clearly held that any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. In such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. They have also relied upon the judgment of Hon.Apex court in the matter of High court of Punjab & Haryana Vs. Jagdev Singh in C.A.No.3500/2006 dated 29.07.2016, order of the Principal Bench of CAT in OA No.1854/2014 dated 01.06.2016, order of CAT Bangalore Bench in OA 813/2016, order of Patna Bench of CAT in OA 71/2016 dated 10.10.2017, etc. Hence the recovery made is justifiable in the eyes of law and prayed for dismissal of the OA.
4. In support of her contention, the applicant relied upon the following Supreme court judgments:
(i) The decision of the Hon'ble Supreme court in (2006) 11 SCC 709 in the matter of Co.BJ Akkara (Retd.) Vs. Govt of India & Ors.
(ii) The decision of the Hon'ble Supreme court in (2009) 3 SCC 475 in the matter of Syed Abdul Quadir and Ors. Vs State of Bihar & Ors.
(iii) The decision of the Hon'ble Supreme court in the matter of Chandi Prasad Unniyal 2012 (8) SCC 417
(iv) The decision of the Hon'ble Supreme court in (2015) 4 SCC 334 in the matter of State of Punjab & Ors Vs. Rafiq Masih & others.
(iv) The decision of the Hon'ble Supreme court in (2016) 14 SCC 267 in the matter of High court of Punjab & Haryana & Ors Vs. Jagdev Singh.5 OA 676/2016
The applicant also relied upon the cases of similarly situated employees S.Athi and S.Parthasarthy in OA 1045/2016 & OA 1693/2019, vide orders dated 20.12.2018 & 30.10.2018 respectively wherein this Tribunal has granted the same relief prayed in the present OA. The orders of this Tribunal were upheld by the Hon. High court of Madras in WP No.13690 & 14032 of 2019 dated 09.03.2020. Since the respondents have not complied with the said orders, the said S.Athi and S.Parthasarthy have filed Contempt Petitions in C.P.No.194/2022 and C.P.No.220/2022 which is still pending.
5. Heard Mr.Muthukumaran for the applicant and Mr.Su.Srinivasan, SCGSC for the respondents and perused the OA along with relevant records.
6. The main plea raised by the applicant is that the applicant is a Group C employee/UDC and as per the direction issued by the Hon. Apex court of India in the matter of Rafiq Masih Para 18(i) of the said judgment applies to the case of the applicant, since the refixation has been carried out in the year 2016, just before her retirement. Though the applicant is not agitating against the refixation carried out by the department in the year 2016, however she is agitating her claim against the recovery only as such the said action of the respondents is against the direction issued by the Hon'ble Apex court in various pronouncements as well as particularly in Rafiq Masih and to settle the excess payment recoveries in respect of Class 3 & 4 employees thereby accepting the same the DOPT has issued Oms dated 06.02.2014 & 02.03.2016 and directed all the authorities under the Central Government to act according to the directions of the Hon'ble Apex court of India.
7. In support of her contention the applicant has placed various pronouncements passed by the Hon'ble Apex court of India as well as the Hon. High courts and co-ordinate tribunals and also she has placed reliance over the order passed by this Tribunal in the matter of similarly situated persons 6 OA 676/2016 from the very same respondents' office. She also contended that in one of the orders against the recovery, the co-ordinate bench of this Tribunal at Bangalore has passed the order which attained finality when the respondent department tested the same before the Hon. High court and Apex court. Therefore the applicant contended that the action initiated by the respondents is bad in law and against the law settled by the Hon. Apex court.
8. On the other hand to justify the said recovery under the excess payment made by the respondents, learned counsel for the respondents has relied upon the following judgments:
(i) In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 it is held that : -
"15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. 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."
(ii) The decision of Principal Bench of CAT in OA 1857 of 2014, wherein one of 7 OA 676/2016 the similarly situated employee Mr. P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been taken that wrong fixation of pay, recovery thereof. While dealing into the issue, the CAT-Principal Bench have gone into the interpretation of illustration 4A in accordance with note 2A below Rule 7 of 6th CPC gazette notification. The relevant paras are reproduced as under:-
"2. According to the applicant, as per Section II of Part B of the Gazette Notification, notifying the CCS (Revised Pay) Rules, 2008, revised pay scale of `6500-10500 has been recommended for Stenographer Grade II in PB-2 + Grade Pay of `4200/-. It is also stated that the Government has provided the procedure for initial pay fixation as on 01.01.2006 in Note 2A below Rule 7 of the Notification, which is reproduced below:-
"Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indicated in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance with Clause (A) (i) and (ii) of Rule 7 by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. The grade pay corresponding to the upgraded scale as indicated in column 6 of Part B or C will be payable in addition.
Illustration 4A in this regard is in the Explanatory Memorandum to these Rules."
3. It is further stated in Rule 7 (1) (A) (i) & (ii), which reads as follows:-
"(A) in the case of all employees:-
(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
(ii) if the minimum of the revised pay band/pay scale is more than the amount arrived at as per (i) above, the pay shall be fixed at the minimum of the revised pay band/pay scale."
4. In paragraph 4 (i) of the O.A., the applicant has stated that the Government, vide their Notification, has recommended the benefit of one 4 increment after bunching for every two stages so bunched. In fact, the applicant has also purportedly quoted the abstract of the Report as follows:-
"Where, in the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching."8 OA 676/2016
5. First of all, what is contained in the Report is not important but the Notification of Government of India, based on the Report, is to be followed. Secondly, at Annexure A-4, the applicant has enclosed paragraphs 3.1.13 and 3.1.14, perhaps of the Report of 6th Central Pay Commission, which does not mention anything about bunching and as pointed out by the respondents in the impugned order, there is no provision for bunching in the Report. In fact, at Annexure A-10, the applicant has annexed a clarification from Ministry of Finance, Department of Expenditure issued on 14.12.2009, in which the first point raised and the clarification given thereto read as follows:-
Point raised Clarification
(a) The manner in which pay The pay in the pay band of
of Assistants/ Pas in position Assistants/Pas working as on
on 1.1.2006 is to be fixed as 1.1.2006 will be fixed with
per the provisions of CCS reference to the fitment table
(RP) Rules, 2008. Whether of the prerevised pay scale of
there will be any bunching in Rs.5500-9000 annexed with
this case. this Department's O.M.
No.1/1/2008-IC dated 30th
August, 2008 and they will be
granted the grade pay of
Rs.4600. Since the minimum
pay in the pay 5 band in the
revised pay structure
corresponding to the stage of
Rs.5500 (pre-revised) scale of
Rs.5500-9000) is more than
the minimum of the pay band
PB-2 i.e., Rs.9300, no benefit
of bunching is admissible n
this case.
Therefore, from the above, it is clear that there is no provision of bunching while fixing the pay as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that was an error, which is rightly rectified by the respondents.
6. The pay of the Government servant has to be fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay) Rules, 2008 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade. This is exactly what the respondents have clarified in their affidavit filed on 18.01.2016 and also placed before us an Office Memorandum dated 28.07.2015 (Annexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimum of the corresponding stage of `6500/- of the pre-revised scale of pay of `6500-10500.
We are, therefore, clear in our opinion that there is no inconsistency or error in the impugned orders dated 12.04.2014 and 21/22.04.2014 and 6 these are issued as per the instructions of the Government of India contained in CCS (Revised Pay) Rules, 2008.
7. The O.A. is, therefore, completely misplaced and on an absolute misunderstanding 9 OA 676/2016 of the Rules/instructions. It is accordingly dismissed. Respondents are at liberty to recover any excess amount paid to the applicant. No costs. "
iii. The Patna Bench of this Tribunal, in a similar context in OA 24 of 2016, reiterated the same ratio and dismissed the said OA.
iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking a similar relief as under :-
"......The applicant would say that even at the time of erroneous fixation in 2012, he was a Group-B (Non-Gazetted) officer and with effect from 2017, he became a Group-B(Gazetted) officer. The applicant would claim that since erroneous fixation is with effect from 1.1.2006 and the excess has been paid for more than 5 years, as per the White Washer judgment, this cannot be recovered from him. As already seen, the wrong fixation was done on 13.12.2012 and this was corrected on 23.2.2016. Therefore, it cannot be said that he was drawing this excess pay for more than 5 years since it had been modified within four years of the original wrong fixation. Further, the Annexure-A13 which was issued in February 2016 was not challenged by the applicant at all. This leads to the suspicion that the refixation was done correctly and that prima-facie the applicant had no objection to it. We fail to understand as to how the respondents did not take any action to recover whatever the excess that had been paid to him between 2012 and 2016. It is possible that being an Accountant in the same office, the applicant could have had juncture in the nonrecovery also. Be that as it may, it is clear that he is clearly not eligible for nonrecovery based on the White Washer judgment. His other contentions relating to the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3rd MACP etc., do not deserve any consideration since the concerned instructions are not relevant in his case. His citing the case of one more person also namely Sri Sadashiva has also been replied to by the respondents in para-25 of the reply statement wherein they had shown that Sri Sadashiva was actually drawing the Basic Pay of Rs.7250 as on 1.1.2006 while the applicant was drawing Rs.5675 on the same date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed. No costs. "
9. Learned counsel for the respondents further submitted that against the 6th Central Pay Commission (CPC) recommendations pay fixation in the matter of applicant has been carried out in the year 2008 and the applicant's pay has been fixed according to the instructions. However some of the employees have raised their grievances against the wrong fixation whereby they have not received proper pay, therefore at the headquarter level the authorities have decided to fix the pay uniformly and give the benefit to all the employees with a rider that if any excess payment has been made to any the employees it would be recovered from the concerned employee. As such at the time of 10 OA 676/2016 first pay fixation against the 6th CPC recommendation in the year 2008 all the employees have given an undertaking thereby the pay has been refixed and arrears released. However, subsequently the Ministry of I & B examined the issue in consultation with the Department of Expenditure (ID Note dated 12.08.2014 and clarified vide their letter dated 20.08.2014 that the pay of the Head Clerks, Assistants and Stenographers Grade II in AIR & Doordarshan were to be fixed as per Note 2(B) of Rule 7 of CCS(RP) Rules 2008 as pre illustration 4(B). Again the matter was taken up by the Ministry of I&B with the Department of Expenditure and the Department of Expenditure in their ID Note dated 19.02.2015 advised as under:
"The provision of the Rule 7, read with Note 2A and 2B below this are quite clear. The same may be invoked based on the facts of this case and the provision of the CCS(RP) Rules 2008. But it may be ensured that fixation of pay in the applicable pay band will be done by multiplying the existing basic pay drawn in the pre-revised pay scale as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of 10 and thereafter the applicable grade pay will be payable. In the said OM dated 28.07.2015 wherein after careful consideration, it is stated that the instructions issued by the Prasar Bharti Secretariat vide their letter dated 18.06.2015 granting minimum of the corresponding stage of Rs.6500/- of the pre-revised scale of pay of Rs.6500-10500 is not in confirmity with the CCS Revised Pay Rules 2008.
10. Therefore in the implementation of the said instructions, refixation has been carried out as per orders dated 04.01.2016 & 21.01.2016 revising the pay of the applicant w.e.f 26.12.2007 by withdrawing the earlier fixation. and the same has been corrected. According to the learned counsel for the respondents this has been effected within a year and the said refixation has been done within 3 years 2 months which is very short span of time.11 OA 676/2016
12. For better appreciation of facts at par with the pronouncements relied upon by the applicant and the respondents, it is necessary to consider the basic facts in the matter. It is not in dispute that after the 6th CPC recommendation first time pay fixation was carried out for the applicant on in the year 2008 and the same has been accepted by the applicant as she knew the calculations are correct, thereby she has not raised any grievances over the same. Against the grievances of some of the employees, the department decided to refix the pay of all the employees with a rider if excess payment has been made the same would be recovered. Accordingly undertaking has been given by the employees. Therefore the said exercise of refixation of pay has been carried out by the department in the case of the said employees including the applicant also. As noticed and mentioned in the above paragraph when the matter has reached the Department of Expenditure to verify the said refixation, the Department of Expenditure after careful consideration by letter dated 18.06.2015 have observed that there is a mistake while releasing the said payment thereby after realising the fact that pay fixation has not been carried out according to the illustration in view of the provisions of the CCS Revised Pay Rules 2008, that the instructions issued by the PB, Secretary to give a minimum of corresponding stage of Rs.6500 in pre-revised scale of pay of Rs.6500-10500 is wrong and need to be rectified immediately thereby steps have been taken and it has been informed to All India Radio by letter dated 31/12/2015 & 04.01.2016 that the pay of the employees has to be fixed as per the pay as on 31.12.2005 multiply by 1.86 only. The pay of the concerned Head Clerk/Accountant/Asst. may be fixed accordingly and pension case may be submitted immediately for further necessary action at that end. Thereafter vide order dated 21.01.2016, the applicant's pay has been refixed as Rs19060 in stead of Rs.20870/-12 OA 676/2016
13. It is to be noted that immediately after the said order, the applicant by request letter dated 18.02.2016 addressed to the Director General, S-II Section, AIR, New Delhi requested not to revise the fixation of pay done. However, the said exercise of refixation has been carried out according to the instructions dated 05.01.2016 and the same has been effected in the matter of the applicant on 21.01.2016 accordingly. Thereafter the applicant has submitted another representation dated 21.03.2016 to the Director General,S-II Section, AIR, New Delhi requesting not to effect any recovery from her pensionary benefits and to settle all her dues. The Prasar Bharati, Chennai Office vide communication dated 22.03.2016 to the Director General, AIR, New Delhi has requested to instruct PAO, DDK Chennai to release the gratuity payment of the applicant without any recovery as done in the case of Sri.A.S.Rajagopal, her case has not considered for waiver of recovery.
14. It is to be noted that after the direction of the Hon. Apex court in the matter of Rafiq Masih, DOPT by their OM dated 02.03.2016 have instructed to the authorities in respect of recovery of wrongful excess payment made to the Government servants wherein considering the all observations of the Hon'ble Supreme court as under:
"4. The Hon'ble Supreme Court while observing that 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 has summarized 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.13 OA 676/2016
(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."
15. As far as concerned to the recovery also if matter is covered under the Rafiq Masih in a plain reading, then the matter has to be referred to the Department of Expenditure. It is to be noted that it was well within the knowledge of the applicant that after refixation recovery was going to be effected. Therefore after the refixation order dated 21.01.2016 immediately on 18.02.2016 she has submitted a detailed representation through proper channel to the Director General and raised her grievances over the action of the respondents in effecting refixation/recovery. Again after her retirement on 29.02.2016, she has made another representation on 21.03.2016 wherein she has requested not to effect any recovery and to settle the pensionary benefits and all her dues.
16. It is to be noted that as observed by the Hon. Apex court of India in Rafiq Masih's case while dealing into the said issue by considering the orders passed by the predecessor in various pronouncements, the Hon'ble Apex court of India has considered the issue at length and observed thus:
7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding 14 OA 676/2016 right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment;
abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.
10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99."(emphasis is ours)
13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference 15 OA 676/2016 because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
14.In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."(emphasis is ours) It is apparent, that in Shyam Babu Verma's case (supra), the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under:
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, 16 OA 676/2016 it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation.
17.Last of all, reference may be made to the decision in Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under:
"4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant 17 OA 676/2016 had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."
It would be pertinent to mention, that Librarians were equated with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma's case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of "equal pay for equal work". This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post. While concluding the issue the court considered various pronouncements under the facts and circumstances of the particular case and came to the conclusion and issued various directions and has noted that "We are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post." It was concluded that in the cases where excess unauthorized payment is deducted within a short period of time it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. After observing all these aspects considering the facts and circumstances, the Hon. Apex court passed the order:
18. 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).18 OA 676/2016
(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.
18. It is to be noted that the case of the applicant is not covered by the order passed by the Hon'ble Supreme court in the matter of Rafiq Masih on the ground that merely saying the applicant belongs to Group C, it is well within the knowledge of the applicant that her pay fixation may not be correct since clarifications have been sought by the Prasar Bharathi from the Ministry of Finance Department of Expenditure regarding the refixation of pay of its employees. When first time against the 6th CPC recommendation pay fixation was carried out for the applicant in the year 2008 the same has been accepted by the applicant as she knew the calculations are correct, thereby she has not raised any grievances over the same. However, subsequently the pay fixation has been done by the respondents against the instructions issued in the year 2012 and her pay has been refixed. The applicant was aware that it is the excess payment made to her and according to the clarification issued by the Department of Expenditure dated 28.07.2015, the same has been corrected and refixation has been effected on 21.01.2016 within a short period of time. Though in her first representation the applicant has requested not to refix/recover the pay/excess payment, in her second representation she has requested only for exemption from recovery thereby she has accepted that refixation has been done properly. Ultimately the effect of the refixation is to correct her pay and if she is in receipt of any excess payment that has to be recovered, since it is exchequer's/tax payer's money and in the interest of 19 OA 676/2016 public at large and to run the administration, it is necessary that the respondents have to give effect to the recovery. Moreover, in the applicant's case, only on the clear clarification issued by the Department of Expenditure in the year 2015, the refixation of pay and recovery of excess payment has been ordered.
19. While applying the ratio laid down by the Hon'ble Supreme court in the matter of Rafiq Masih, it is necessary to look into the facts and circumstances of the case and as recorded above the same is not applicable in the present case, since excess amount which was received under said refixation and paid in the year 2012 has been revised and refixed after consultation with the Ministry of Expenditure in 2015. Therefore in our considered opinion, the action on the part of the respondents is justified and hence no interference is called for.
20. The OA being devoid of merit is dismissed with no order as to costs.
(Lata Baswaraj Patne) (T. Jacob) Member (J) 31.03.2023 Member (A) MT