Central Administrative Tribunal - Delhi
Anita Chopra vs Industrial Policy And Promotion on 11 November, 2024
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Item No. 21/ C-5
C
O.A. No. 2902/2022
OA No. 1440/2022
OA No. 1842/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2902/2022
O.A. No. 1440/2022
O.A. No. 1842/2022
Reserved on 24.10.2024
Pronounced on 11 .11.2024
Hon'ble Mr. Manish Garg, Member (J)
O.A. No. 2902/2022
1. Ms. Anita Chopra R/o 45/6 3rd Floor, East Patel Nagar,
New Delhi-110008.
Delhi
2. Ms. Harsha Prabha Mehta R/o A
A-1/1106 Tower-3
Purvandhal Royal Park, Sector-137,
Sector 137, Noida 201304.
3. Ms. Sandhya Kak R/o A-91
A 91 Amar Colony, Lajpat Nagar
Nagar-4
Delhi
Delhi-110024.
4. Shri Soma Varma KK R/o Kattoor Madam
Madam, Puliyanam
P.O. Angamaly (Via) Ernakulum District, Kerala 683572.
5. Shri Shiv Shankar Maurya R/o D
D-465/5 Sangam Vihar,
New Delhi-110080.
Delhi
Applicant
(By Advocate: Mr. Lily Thomas & Saju Jakob)
V/s
1.Union of India, Represented by Ministry of Commerce and
Industry and Promotion.
through its Secretary, Department of Industrial Policy
Udyog Bhawan, New Delhi-110001
Delhi 110001
2. National Council for Cement and Building Materials
Through its Director-General
Director
Bibekananda Mohapatra
34 KM Stone, Delhi -Mathura
Mathura Road
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Item No. 21/ C-5
C
O.A. No. 2902/2022
OA No. 1440/2022
OA No. 1842/2022
NH-2, Ballabgarh,
NH
Haryana
Haryana-121004, India,
...Respondents
(By Advocate: Mr. Suresh Tripathi)
O.A. No. 1440/2022
1. Shri Satish Kumar Agarwal B5/301 Palm Grove Heights
Sector 52, Ardee City Gurugram 122 003
2. Shri K V Haridasan Knnoth House, Near O.K. U.P. School
P.O. Edakkad Kannur, Kerala 670 663
3. Shri Prashant Kumar Chakraborty Flat No. B
B-2 2nd Floor
170/1A Roy Bahadur Road, Near Adarshapally Club, Behala,
Kolkata 700 034
4. Shri Joshi Narsing Rao H.No. 2-
2-25/12 Indranagar,
Gachibowli Hyderabad 500 032
5. Sh Palwinder Singh H.No.495 Sector 3 Ballabgarh 121
004 Faridabad Dist, Haryana
6. Dr. Devendra Yadav H.No.831, Sector 9 Vasundhara,
Ghaziabad 201012
Applicants
(By Advocate: Mr. Devansh Gupta)
V/s
1. Union of India, Represented by Ministry of Comm
Commerce and
Industry Through its Secretary, Department of Industrial Policy
and Promotion. Udyog Bhawan, New Delhi
Delhi-110001
2. National Council for Cement and Building Materials Through
its Director-General
Director
Bibekananda Mohapatra
34 KM Stone, Delhi -Mathura Road
NH-2,2, Ballabgarh, Haryana 121004, India.
...Respondents
(By Advocate: Mr. Suresh Tripathi)
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Item No. 21/ C-5
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O.A. No. 2902/2022
OA No. 1440/2022
OA No. 1842/2022
O.A. No. 1842/2022
1. Shri Pardeep Kumar H.No. 158 Bhagwat Subzi Mandi
Maujpur, North East Delhi 110 053
2. Dr. SK Breja 74, Sector 17, Faridabad, 121002
3. Shri Rabindra Singh B24/19 FT BPTP Park Elite Floors,
Sector 88, Faridabad, 121 002
4. Shri Mohammed Iqbal Η No. 1931 Sector 77-D, Faridabad
5. Ms. Kaumudi Bhatnagar 13/3628 Regharpura, Karol Bagh,
New Delhi 110 005
6. Shri Arun Sood 8/4 Chanderpuri, Roo
Roorkee, Haridwar
District, Uttrakhand 247 667
7. Shri KS Durga Prasad Flat 001, Block 4, My Home
Vihanga Financial District, Hyderabad 500 046
8. Shri Kapal Kumar Ganger Η.ΝΟ. 1008/7, Amayra Greens
2 (Kharar), Greater Mohali, Punjab 140 301
9. Shri Vir Vikram Arora H.NO. 131, Sector 11 D,
Faridabad,
10.Shri T Mohan Rao Η.ΝΟ. 6-2-97/1,
6 97/1, Flat No. 402, SMR
Square Apartments, New Bhoiguda, Secunderabad, 500 003
Telangana
11.Shri M Selvarajan New No.5/ Old No.2, 12th Cross
Street, Dhandeeswaram Nagar Velacherry, Chennai 600 042
12. Shri Khairul Anam Shah H.NO. 1422, Sector 3
Ballabgarh, Faridabad 121 004
13.Shri S Sridharan
33/38 Mela Madavilagam Thiruvaiyaru, Thanjavur District,
Tamil Nadu
613 204
Applicants
(By Advocate: Mr. Devansh Gupta)
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Item No. 21/ C-5
C
O.A. No. 2902/2022
OA No. 1440/2022
OA No. 1842/2022
V/s
1.. Union of India,
Represented by Ministry of Commerce and Industry
through its Secretary, Department of Industrial Policy
and Promotion.
Udyog Bhawan, New Delhi-110001
Delhi 110001
2. National Council for Cement and Building Materials
Through its Director-General
Director
Bibe
Bibekananda Mohapatra
34 KM Stone, Delhi -Mathura
Mathura Road
NH Ballabgarh,
NH-2,
Haryana
Haryana-121004, India,
...Respondents
(By Advocate: Mr. Suresh Tripathi)
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Item No. 21/ C-5
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O.A. No. 2902/2022
OA No. 1440/2022
OA No. 1842/2022
ORDER
Since a common question of facts and law is involved in the present batch of OAs, they are being disposed of through this common order. However, for the sake of brevity, the facts are being extracted primarily from OA No. 2902/2022.
2. By virtue of the present OA, the applicants are seeking the following reliefs:
relief "(a)
(a) Allow the present application based on the Grievance petition dated 14.10.2021 and on the grounds mentioned herein and declare various impugned letters dated 07.10.2020, 12.11.2020 and 13.11.2020 issued by the Respondent No. 2, refusing our prayers, including the impugned reply given bby the Respondent No. 2 dated 15.11.2021 to be illegal, ineffective, and bad in law.
b) Issue direction to the Respondents to pay the Applicants all the retirement/ service benefits including Gratuity/ Ex Ex- gratia on Gratuity as per the NCB rules, internal rrules, and regulations and terms and conditions of agreement with the applicants/ retirees, since they being the retirees of an autonomous body, and they are not the government employees and hence not applicable to them.
c) Issue a direction to all the respondents, to withdraw the demand letters sent by the Respondent No. 2 to the Applicants/ retirees for the recovery of the amount paid to the Applicants as per the rules prevailing since 1986 and employment agreements, and to waive off such claims of recovery recovery since such a claim of recovery is illegal, arbitrary, perverse and discriminatory, for various reasons on facts and law.
d) Pay/grant the arrears of Gratuity in full including Ex Ex-gratia on Gratuity and all other retirement and service benefits, inclu including Sick Leave Encashment/ privileged leave encashment, and Profit Sharing Incentives along with 10% p.a. interest within 15 Profit-Sharing days upon the final order if allowed in favor of Applicants, as per correct computation method in accordance with the Payment 6 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 of Gratuity Gratuity Act / relevant internal rules and regulation/ with the employment agreement/ contract of the Applicants, which offers the better terms of gratuity and other benefits.
e) Pay / grant all other retirement and service benefits, if anything is due to the the Applicants, in accordance with the prevailing laws / internal rules and regulations / or with the employment agreement which they have signed with the employer.
f) Pass any such order which this Hon'ble tribunal may deem fit and proper."
3. Learned counsel cou for the applicants submit submitted that in the present OA, the applicants have challenged the action of the respondent No. 2 in issuing the recovery letters to the applicants to return the terminal and other service benefits received on superannuation. It is the contentions of the applicants that despite repeated request by them, the respondent No. 2 has not withdrawn withdraw the recovery letters and continued to withhold the terminal benefits including gratuity and service benefits in the pretext of being considering them as government employee whereas the applicants are employees of autonomous bodies. For reference the impugned order orders dated 07.10.2020 Annexure A/1 in respect of the applicant No. 4 is reproduced below :-
"Subject: Recovery of excess payment made during implementation of 7th Central Pay Commission for Superannuated Superannuated NCCBM Officials Dear Sir, This has reference to your representation in response to our letter dated 07 October 2020 regarding recovery of excess paynment made to you on implementation of 7th CPC.7
Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 The break-up break up of retirement benefits paid to you is as under:
NAM GRATUITY AMT EX GRATIA Sick Leave HRA E PAID PAID Encashment Component Paid on placement Paid Sh. 995511 348428 0 0 Soma Verm a KK The payments of Gratuity above notified government limit (if any) and Ex-gratia Ex on gratuity, as per then existing NCB rules, were over and above the payments entitled to government employees on retirement.
Accordingly, you were informed vide our letter dated 07 October 2020 to refund the payment of arrears of pay, DA etc paid as excess amount. You are again requested requested to refund the excess amount within one month of receipt of this letter."
" Subject: Recovery of excess payment made during implementation of 7th Central Pay Commission for Superannuated NCCBM Officials Dear Sir, Kindly take notice that after retiring from the service of the National Council for Cement & Building Materials (NCCBM) w.e.f 30 November 2017, you were paid all retiral benefits immediately as per the then existing rules. As per the record, during the month of April/May 2018, you had elected to be paid as per the pay structure based on 7th CPC. The applicability of revised pay structure to the employees of NCCBM was subject to certain conditions; whereby the NCCBM was to align all service conditions, pay & allowances, with the GOI ruless before such implementation.
It has been noticed that the payment of arrears of pay, DA etc of Rs 297534/ has been made to you in excess on implementation of pay 297534/-
structure of 7th CPC., In the light of the above and the undertaking given by you at the time time of electing the revised pay structure, the excess payment made to you is to be recovered.
Accordingly, the undersigned is hereby directed to inform you through this notice to refund amount of Rs 297534/ 297534/- within 30 days of the receipt of this letter. In case case you wish to make any representation regarding recovery of excess payment; the same shouldreach the undersigned within 10 days of the receipt of this letter.
Please be informed that failure to comply with this notice will render you liable to all consequences, consequences, including levy of penal interest."8
Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022
4. The crux of the respondents' submission is that the recovery was initiated based on an undertaking provided by the applicant applicants, the format of which is uniform. For better appreciation of facts, Annexure R-3 (colly) which includes an undertaking by Ms. Anita Chopra, applicant No. 1 herein, is reproduced below:
"Implementation of 7th Central Pay Commission (CPC) Pay Scale at NCB UNDERTAKING I hereby elect the revised pay structure with effect fr from 1st January 2016 and hereby undertake that in the event of my pay having been fixed in a manner contrary to the provisions contained in these Rules, as detected subsequently, any excess payment so made shall be refunded by me to National Council for Cem Cement and Building Materials (NCB) either by adjustment against future payments due to me or otherwise."
4.1 Learned counsel for the respondents further argue argued that the recovery is justified in light of the Office Memorandum (OM) issued by the Department of Expenditure on 13.01.2017. The relevant paragraph paragraphs of the said OM reads as under:-
"Subject:
Office Memorandum Pay revision of employees of Quasi Quasi-Government Organizations, Autonomous Organizations, Statutory Bodies etc, set up by and funded/controlled by the Central Government regarding. Guidelines The employees working in the Quasi Quasi-Government Organizations, Autonomous Organizations, Statutory Bodies 9 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 etc. set up and funded/controlled by the Central Government, are not Central Government employees and, therefore, the benefits implemented by Central Government in respect of Central Government employees as part of their service conditions, are not directly applica applicable to the employees working in such autonomous organizations. The application of such benefits as given to Central Government employees in respect of employees of such autonomous organizations as well as the manner and conditions governing such applicatio application, including sharing of the additional financial implications arising thereon, requires specific approval of the Central Government. The autonomous organizations are expected to manage their affairs in such a fashion that their dependence on Central Government Government for financial support to meet the extra financial implications is minimal, as such autonomous organizations are expected to be financially self self-sufficient so as not to cause any extra burden on the Central Exchequer.
2. In the above background, the question question of extension of the revised pay scales in terms of the CCS (RP) Rules, 2016 as notified on 25.7.2016 in respect of Central Government employees based on the recommendations of the 7th Central Pay Commission, to the employees of the Quasi Quasi-Government Organizations, Autonomous Organizations, Statutory Bodies, etc., set up and funded/controlled by the Central Government, where pattern of emolument structure, i.e. pay scales and allowances, in particular Dearness Allowance, House Rent Allowance and Transport Transport Allowance, are identical to those in case of the Central Government employees, has been considered by the Government and it has been decided that the revised pay scales as per the Pay Matrix, as contained in Part--A A of the Schedule of the CCS(RP) Rules, 2016 as well as the principle of pay fixation as contained in the said rules, may be extended to the employees of such organizations, subject to the following stipulations:-
stipulations:
(i)The )The conditions of service of employees of these organizations, especially those those relating to hours of work, payment of OTA etc. are exactly similar to those in case of the Central Government employees,
(ii) The revised pay structure shall be admissible to those employees who opt for the same in accordance with the extant Rules.
(iii))
i)) Deductions on account of Provident Fund, Contributory Providers. Fund or National Pension System, as may be applicable, will have to be made on the basis of the revised 10 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 pay w.e.f. the date an employee opts to elect the revised pay structure.
3. The revised revised pay scales contained in Parts B & Part C of the Schedule of the CCS(RP) Rules, 2016, shall not be automatically applicable to the employees of Autonomous Organizations. The concerned Administrative Ministry shall consider such cases keeping in view wh whether these pay scales are justified for the category of staff of Autonomous Organizations based on functional considerations, recruitment qualifications, as well as the applicable pre pre-revised pay scales.
Based on such an examination by the concerned Administrative Ministry, appropriate proposals, if justified, Administrative would be submitted to the Ministry of Finance, Department of Expenditure, through their Integrated Finance.
4. In case of those categories of employees whose pattern of emoluments structure, i.e., pay pay scales and allowances and conditions of service are not similar to those of the Central Government employees, a separate 'Group of Officers' in respect of each of the Autonomous Bodies may be constituted in the respective Ministry/Department. The Financi Financial Adviser of the respective Ministry/Department will represent the Ministry of Finance on this Group. The Group would examine the proposals for revision of pay scales etc. taking into account the views, if any, expressed by the staff representatives of the the concerned organizations. It would be necessary to ensure that the final package of benefits proposed to be extended to the employees of these Autonomous Organizations etc. is not more beneficial than that admissible to the corresponding categories of the Central Government employees. The final package recommended by the 'Group of Officers' will require the concurrence of the Ministry of Finance.
5. In regard to the additional financial impact arising out of the implementation of the revised pay scales, as provided above, the following parameters shall be kept in view:
view:-
(i) In respect of those Autonomous Organizations, which have not been depending upon the Government Grants for their operations or for meeting the cost of salary, including those autonomous organizations which are in a position to meet the additional financial impact from their own internal resources, the additional financial impact shall be met by the concerned autonomous organizations without any financial support whatsoever from the Government.
Government. No financial support shall be given by the Central Government in such cases.
11Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022
(ii)) In respect of the other Autonomous Organizations, which are not in a position to meet the additional financial impact, either fully or partly, on account of the impleme implementation of the revised pay scales, the concerned autonomous organization will take up the proposals with the Financial Advisers of the respective Administrative Ministry/Department, bringing out the extent to which the additional cost could be met internal internally, the shortfall to be made up and the reasons for the shortfall. While giving concurrence to the implementation of the revised pay scales, the Financial Advisers shall ensure that the extent of Government support is kept at the minimum, and in no case the the Government support shall be more than 70% (seventy percent) of the additional financial impact.
(iii) In respect of Autonomous organizations set up under a specific Act of Parliament, not generating adequate internal resources to meet the additional financial financial impact, the extent of Government support may be more than 70% of the additional impact, provided in the opinion of the concerned Financial Adviser the nature of functions and the fund position of the organizations so warrant.
(iv) The mode of payment of arrears, as laid down in Rule 14 of the CCS(RP) Rules, 2016 shall be followed, subject to the overall financial impact and the capacity of the concerned autonomous organization to absorb the cost without putting any avoidable burden on the Governments finances, provided the conditions mentioned above are met.
6. The Central Government has not taken any decision so far in regard to various allowances based on the 7th Central Pay Commission in respect of Central Government employees and, therefore, until further orders the existing allowances in the autonomous organizations shall continue to be admissible as per the existing terms and conditions, irrespective of the revised pay scales having been adopted."
4.2 In response to the aforesaid OM, respondent no. 2, i.e., the National Council for Cement and Building Materials, convened a meeting with its Board of Governors on 23.10.2019. The relevant portion of the discussion from this meeting is provided below:
12Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 "4.11 That the Board of Governor (BOG) in its 115 115th dated 2nd August, 2018, has stated that the 7th Central Pay Commission Implementation - The Board noted that the 7th Central Pay Commission pay structure has been implemented in NCB as directed by DIPP and as per the 114th BOG Minutes (Minute No.1 14.4. 14.4.1), service rules and allowances, which were at variance with Central Government rules, have been revised and implemented aligned in line with central government guidelines with effect from 9h March 2018. Accordingly, the Board noted and directed that payment payment of allowances such as Children Education Allowance, Leave Travel Concession (LTC), TA/DA, House Rent Allowance, Transport Allowance, Gratuity, Ex-gratia, Ex gratia, Contributory Provident Fund, Housing colony accommodation rules, etc as per rules in force before 9 March 2018 is to be settled for the service period till 9 march 2018., Any additional expenditure on the above is to be met through NCB's internal fund generation. The True Copy of Minutes of Board of Governors 115th meeting dated 02.08.2018 is annexed hherewith as ANNEXURE A8."
4.3. The learned counsel for the respondents rel relied upon the table reproduced herein below which contains the details of the officials retiring between 01.01.2016 and 18.09.2017:-
S.No Name Date of Arrears Arrears Arrear of NCB'S TDS Total Superannuation of of HRA PL EPF Amount Arrears wages W.E.F Encashment contributed Deducted from paid on 01.07.17 wages paid 1 2 3 4 5 6 7 8 (4+5+6+7--
8) 9 13 Sh. KP 31.10.2016 75388 0 0 9047 0 84435 Hooda 14 Sh. R.K. 30.11.2016 215977 0 0 25917 0 241894 Goswami 15 Sh. Ashok 30.11.2016 224822 0 0 26979 0 251801 Kumar Mishra 16 Dr. Vishnu 31.12.2017 244974 0 0 29397 0 274371 P Chatterjee 17 Sh. S.C. 31.01.2017 160366 0 0 19244 0 179610 Sharma 18 Sh. R 31.01.2017 132734 0 0 0 0 132734 Padmanabha Rao 19 Sh. 31.03.2017 307641 0 0 36917 0 344558 13 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 Rajendra Singh 20 Sh. Shiv 31.03.2017 82050 0 0 9846 0 91896 Shankar 21 Sh. 30.04.2017 488200 0 0 58584 4660 542124 Ashwani Pahuja 22 Sh. Sanjeev 30.04.2017 315468 0 0 37856 0 353324 Aggarwal 23 Sh. Satish 30.04.2017 318892 0 0 38267 0 357159 Sharma 24 Sh. Manjit 30.04.2017 208820 0 0 25058 0 233878 Singh 25 Dr. Shri 30.06.2017 370308 0 0 44437 0 414745 Harsh 26 Sh. Raj 30.06.2017 133656 0 0 16039 0 149695 Singh 27 Sh. Shree 31.08.2017 135984 13698 0 16318 0 166000 Ram Prasad Total (Table 4124244 13698 0 447735 4660 4581017
1) 4.4. The learned counsel for the respondents also relied upon another table containing the details of the officials retiring between 19.09.2017 and 28.09.2018.
28.09.2018 The said table reads as under:
under:-
S.No Name Date of Arrears Arrears Arrear of NCB'S Total Superannuation of of HRA PL EPF Arrears wages W.E.F Encashment contributed from paid on 01.07.17 wages paid 1 2 3 4 5 6 7 (4+5+6+7-
8) 9 1 Mrs H 31.08.2017 163268 17040 12317 19592 212217 Prabha Mehta 2 Mrs. 30.09.2017 180747 23814 35388 21690 261639 Sandhya Kak 3 Sh. P.K 31.10.2017 188992 35616 87850 22679 335137 Chawla 4 Sh. 30.11.2017 173263 37545 65934 20792 297534 Soma Varma KK 5 Dr. R.S. 31.12.2017 391248 97362 166980 46950 702540 Gupta 6 Mrs. 31.01.2018 239283 59367 99616 28714 426980 Anita Chopra 7 Sh. 28.02.2018 222256 62544 96467 26671 407938 Bhagwan 14 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 Singh Total 1559057 333288 564552 187088 2643985 (Table 2) 4.5. Learned counsel for the respondents referred to the judgment passed by Hon'ble Supreme Court in State of Punjab & Haryana vs. Jagdev Singh.
Singh The he relevant paragraph of which is cited below:
"10 10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible impermissible in law:
"(i) Recovery from employees belonging to Class 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 hhas 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 arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover." (emphasis supplied).
11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present ca case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale scale. He is bound by the undertaking.
12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable installments. We direct that the recovery recovery be made in equated monthly installments spread over a period of two years.
15Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
5. In rejoinder, learned counsel for the applicant applicants relied upon the decisions rendered by the Hon'ble Apex Court in the cases of State of Punjab Vs. Rafiq Masih Whitewasher) and Ors Ors., Thomas Daniel Vs. State of Kerala, Kerala Virender Giri and Ors. Vs Chief Executive Officer Delhii Jal Board and R.K.V Motors & Timbers (P) Ltd , Others Vs Regional Transport Officer and Another.
Another. Reliance is also placed upon the OM dated 02.03.2016 issued by the Govt. of India Ministry of Personnel, Public Grievances & Pensions, DOP&T dated 02.03.2016.
6. Heard eard the learned counsel for the respective parties and perused the records of the case.
7. ANALYSIS 7.1 We are dealing with the facts narrated in O.A. No. 2902/2022 in order to conclusively conclusive determine the issue inn hand.
7.2. Interestingly, we find that no show cause not notice was issued to the applicantss , while passing the impugned order orders. We also find that representation was preferred by the applicants on 07.10.2020. On the same day, i.e., ., 07.10.2020,, the impugned order was passed. Bare perusal of the impugned order shows that it is a non-speaking non speaking and non non-reasoned one. We observe that if if reasons are not recorded while rejecting the 16 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 representation of the applicants,, it cannot be said that it has been disposed of in a quasi judicial manner. In Union of India & Ors. Vs. E.G. Nambodiri & ors., AIR 1991 SC 1216, the Hon'ble Supreme Court considered the contention as to whether a representation against the adverse entry can be rejected by a non-speaking non speaking order or not. It has been held ld by the Hon'ble Supreme Court that:-
"In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reason. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of th the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on th the ground und of absence of reasons. In Governmental functioning before any order is issued, the matter is generally considered at various levels and the reasons and comments are contained in the notes on the file. The reasons contained in the file and even the competent competent authority to formulate its opinion if the order is communicated to the Government servant rejecting the representation does not contain any reason, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always always open to the competent authority to place the reasons before the Court, which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the Court to justify its action."
7.3. Similar view has been reiterated by the Hon'ble Apex Court in Ram Kumar Vs. State of Haryana, Haryana, AIR 1987 SC 2043; Somdutta Vs. Union of India & ors., AIR 1989 SC 414; S.N. Mukherji Vs. Union of 17 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 India & ors., (1990) 4 ASCC 594 and State Bank of Bikaner & Ja Jaipur Vs. Prabhu Dayal Grover, (1995) 6 SCC 279.
7.4. In view of the facts and circumstances, it is seen from the records that the matter is squarely covered by Rafiq Masih (white washer) (supra) followed by recent judgment of Apex Court in Thomas Daniel vs. State Of Kerala, Civil Appeal No.7115/2010 decided on 02 02.05.2022.
7.5. Further, the Hon'ble High Court of Kerala in State of Kerala;
Director Of General Education; Deputy Director of Education Vs. P.V.Priya D/o Prabhakaran decided on 28.06.2021, held as under:
"15. The Division Bench of this Court in the case inState of Kerala & Others v. Vinod Kumar [2020 (4) KerLT 230] in paragraph No.7 thereof has considered the effect of Jagdev Singh's case (supra) on the judgment in White Washer's case (supra). ThThe Division Bench of this Court in Vinod Kumar's case (supra) has held in paragraph No.7 thereof as follows:-
follows:
"7. In the light of the contentions raised before us, it is necessary to consider the law laid down in Jagdev Singh and to see whether this later judgment of the Supreme Court makes a complete departure from the law laid down in Rafiq Masih. In Jagdev Singh, pay revision benefits were extended to a judicial officer (the employee concerned) from time to time. During each of these occasions, as per thee rules applicable to him, he had undertaken to refund any excess payment that may be made. Following the revision of pay scales upon implementation of the First National Judicial Pay Commission ('Shetty Commission') recommendations, the pay of the officer was again revised. The officer was compulsorily retired from service, on January 7, 2002. In February 2004 proceedings for recovery of payments made in excess were initiated against him.
On his writ petition, the High Court came to the conclusion that any excess payment made to him prior to his retirement could not be recovered, there being no fraud or misrepresentation on his part. The judgment of the High Court was reversed by the Supreme 18 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 Court, on a short ground which we will notice after setting out th the law laid down in Rafiq Masih.
(xxx xxx) After noticing the categories of situations set out as (i) to (v) in paragraph 18 of Rafiq Masih, the Supreme Court in Jagdev Singh held in paragraph 11 as follows:-
follows:
"11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking." On a reading of both Rafiq Masih and Jagdev Singh, it is difficult for us to accept the contention of the learned Government Pleader that that Jagdev Singh is a complete departure from the principles laid down in Rafiq Masih. From a reading of paragraphs 10 and 11 of Jagdev Singh, it appears to us that the Supreme Court had only clarified that in the case of recovery from retired employees or employees employees who are due to retire within one year of the order of recovery, there would be no bar in ordering recovery, if the employee concerned had executed an undertaking agreeing to refund any excess payment. We cannot read Jagdev Singh as having laid down down the proposition that in every case where there is an undertaking as aforesaid, recovery can be ordered from the employee concerned whatever be the point of time that such payment was made. We cannot overlook the fact that there is not even a suggestion inin Jagdev Singh that in the event of there being an undertaking to refund excess pay, none of the situations envisaged as items (i) to (v) of Rafiq Masih Masih can be pressed into service.
(xxx xxx)
16. It can thus be seen that the Apex Court in Jagdev Singh's ca case (supra) has not interfered with the directions contained in para No.18 of the judgment in White Washer's case (supra) regarding clauses (i), (iii), (iv) & (v). The sole modification made in the Jagdev Singh's case (supra) was in relation to clause (ii) of the directions issued in paragraph No.18 of White Washer's case (supra).
17. Taking note of the abovesaid extenuating circumstances in this case, we are of the view that the Tribunal was fully justified to hold 19 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 that if the recovery of the excess pay made as per Anx.A8, as permitted in Anx.A12, then the same would be highly harsh, oppressive and iniquitous to such an extent that it would far outweigh the equitable balance of the employer's right to recover.
There cannot be any doubt that the original applicant has not contributed to, in any manner, for the abovesaid error in the initial appointment orders. The applicant has categorically and clearly disclosed all the details of her qualifications and work experienc experience and if the authorities concerned had applied their mind, then the mistake as the one which occurred in Anx.A5, would not have happened. All throughout the applicant was under the bona bona- fide belief that it was a special benefit conferred in her favour by the exercise of discretion by the Government and that too, at the cabinet level and therefore, recovery of the said excess pay for the period prior to the impugned order will be harsh and iniquitous. However, we make it clear that the pay of the applicant will stand regulated on the basis of the impugned order with prospective effect. We make it clear that we are only affirming the directions and orders passed by the Tribunal especially in the matter of interdiction with the excess pay paid to the applicant applicant. In other words, no interference is called for with the verdict of the Tribunal."
7.6 Further we would also draw a reference to the Judgment passed by the Hon'ble High Court of Bombay in State of Maharashtra & Ors. Vs. Rekha Vijay Dubey, WP No.7154/2019 decided on 24.09.2021.
7.7 In a recent decision, the Apex Court in Civil Appeal No(s).
1635 of 2013 Jagdish Prasad Singh versus State oof Bihar and Others decided on 08.08.2024 observed as under :-
:
"24. Recently, this Court in Thomas Daniel v. State of Kerala and Others4, held that the State cannot recover excess amount paid to the ex-employee ex employee after the delay of 10 years.
25. The Government Resolution dated 8th February, 1999 to be specific, the highlighted portion supra is amen amenable to the interpretation that it protects the status and pay of those employees who had received their time bound promotions prior to 31st December, 1995. As a consequence, the Secretary 20 Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 concerned, while rejecting the representation clearly misinterpreted and misapplied the said Resolution to the misinterpreted detriment of the appellant.
26. The learned Single Judge as well as the Division Bench of the High Court of Patna also seem to have fallen in the same error. In addition thereto, we are of the view that any step of reduction in the pay scale and recovery from a Government employee would tantamount to a punitive action because the same has drastic civil as well as evil consequences. Thus, no such action could have been taken against the appellant, more particularl particularly, because hehad been promoted as an ADSO, while drawing the pay scale of Rs.6500-10500 Rs.6500 10500 applicable to the post, way back on 10th March, 1991 and had also superannuated eight years ago before the recovery notice dated 15th April, 2009 was issued. The impugned action directing reduction of pay scale and recovery of impugned the excess amount is grossly arbitrary and illegal and also suffers from the vice of non-adherence non adherence to the principles of natural justice and hence, the same cannot be sustained.
27. The order dated 8th October, 2009 passed by the State Government directing reduction in the pay scale of the appellant from Rs.6500-10500 Rs.6500 to Rs.5500-9000 9000 w.e.f. 1st January, 1996 and directing recovery of the excess amount from him is grossly illegal and arbitrary and is hereby quashed and set aside. The impugned order dated 27th August, 2012 passed by the Division Bench of the High Court does not stand to scrutiny and is hereby quashed. Therefore, the appellant shall continue to receive the pension in accordance with the pay scale of Rs.6500 Rs.6500-10500.
28. In case, if any reduction in pension and consequential recovery was effected on account of the impugned orders, the appellant shall be entitled to the restoration/reimbursement thereof with interest as applicable.
29. The appeal is allowed in these terms. No order as to costs."
8. CONCLUSION:
8.1. This Tribunal is of the considered view that the present OAs deserve to be allowed, allowed keeping eeping in view the fact that no recovery can be effected from an a employee without giving any show cause notice.21
Item No. 21/ C-5 C O.A. No. 2902/2022 OA No. 1440/2022 OA No. 1842/2022 Respondents are, therefore, directed to refund the aamount, if any, already recovered, which has been wrongly adjusted against the retiral dues, contrary to the aforesaid proposition of law. T The Respondents are directed to pay the applicants applicants all the retirement/ service benefits including Gratuity/ Ex-
Ex gratia on Gratuity as per the relevant rules. The consequential relief(s) shall follow thereof.
thereo . These directions shall be complied with by the respondents within a period of two months from the date of receipt of a certified copy of this order, failing which the applicants shall also be entitled to interest at GPF rate rates till the date of actual payment.
8.2. The OA is allowed in the aforesaid terms. Pending MAs, if any shall also stand disposed of.. There shall be no order as to costs.
(Manish Garg) Member (J) /arti/