Central Administrative Tribunal - Patna
Dhirendra Bahadur Singh vs Csir Indian Institute Of Petroleum on 15 November, 2022
-1- MA/051/00502/2022 (In OA/051/00612/2022)
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH, RANCHI
MA/051/00502/2022
[In OA/051/00612/2022]
Reserved on: 17.10.2022
Pronounced on: 15.11.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Dhirendra Bahadur Singh, aged about 59 years, Son of Late Anirudda
Bahadur Singh, Resident of D-5, Vedant Apartment, Manoram Nagar, L.C.
Road, P.O. Nirsa, P.S. Chirkunda, District- Dhanbad (Jharkhand), Pin Code:
826001.
.... Applicant.
By Advocate(s): - Shri Rupesh Singh assisted by Shri Arpan Mishra
-Versus-
1. Council of Scientific & Industrial Research - Central Institute of
Mining & Fuel Research (CSIR-CIMFR), through its Director General,
Anusandhan Bhawan, 2, Rafi Marg, P.O. Rafi Marg, New Delhi-
110001.
2. Financial Advisor, Council of Scientific & Industrial Research- Central
Institute of Mining & Fuel Research (CSIR-CIMFR), through its
Director General, Anusandhan Bhawan, 2, Rafi Marg, P.S. Rafi Marg,
New Delhi- 110001.
3. The Administrative Officer, Council of Scientific & Industrial
Research- Central Institute of Mining & Fuel Research (CSIR-CIMFR),
Barwa Road, CIMFR Colony, P.O. and P.S. Barwa, Dhanbad
(Jharkhand)- 826015.
4. The Controller of Administration, Council of Scientific & Industrial
Research- Central Institute of Mining & Fuel Research (CSIR-CIMFR),
Barwa Road, Dhanbad (Jharkhnad) - 826015.
..... Respondents.
By Advocate(s): - Shri (Dr.) Adish Aggarwal
Shri J.K. Krishinan
Shri Abhay Prakash
Ms. Mohini Gupta
-2- MA/051/00502/2022 (In OA/051/00612/2022)
ORDER
[ON INTERIM RELIEF] Per S.K. Sinha, A.M:- Vide this order we are going to dispose of MA No. 502/2022, wherein prayer for grant of interim relief in OA No. 612 of 2022 is there. The applicant has prayed for interim stay on execution of the notice dated 05.08.2022 (Annexure 9) issued by Controller of Administration, CISR-Central Institute of Mining and Fuel Research(CIMFR) directing the applicant to refund the gross amount of honorarium paid in the month of March 2021 latest by 20th August 2022 failing which recovery would be effected from the salary of August 2022 onwards.
2. Notice was issued on the OA on 12.09.2022, which includes this MA also and respondents have filed a short reply opposing the prayer for interim relief.
3. Short facts leading to the OA are that the CSIR-CIMFR paid honorarium on 25.03.2021 to its 553 employees/staff including the applicant, who is a Senior Scientist. Applicant was sanctioned a gross amount of Rs 8,50,000/- and after deduction of Rs 2,65,200/- as income tax Rs 5,84,800/- was credited to his bank account. On 01.04.2021, Administrative Officer of CSIR-CIMFR issued a notice, on the direction of DG, CSIR, that all the payees/beneficiaries were required to refund the gross amount of honorarium/fee paid to them. Further, on 12.04.2021, DDO of CSIR-CIMFR issued an office memorandum to the applicant (and other beneficiaries) that he
-3- MA/051/00502/2022 (In OA/051/00612/2022) (they) should refund the gross amount of honorarium at the earliest by cheque/DD payable to Director, CIMFR. After more than one year, Controller of Administration of CSIR-CIMFR issued a notice on 05.08.2022, to the applicant (and other beneficiaries) to deposit the gross amount latest by 20th August failing which recovery would be effected from their salaries (Annexure-9). Applicant made a representation against the notice to the concerned authorities on 12.08.2022 and approached the Tribunal with the instant OA.
4. Applicant has pleaded in the OA and the MA that the honorarium was paid to him (and other employees) in terms of the 'CSIR Guidelines for Technology Transfer and Utilization of Knowledgebase - 2017' (Annexure 1) which provides for sharing of part of finances realized from licensing of Intellectual Property, Knowledgebase, consultancy and fees from sponsored research projects/schemes with the concerned staff of the Institute as Honorarium /Fees. Due procedure, as laid down in the guidelines, was observed in sanctioning and distributing the honorarium /fees. Two staff of CIMFR, aggrieved with the notice dated 01.04.2021 and OM dated 12.04.2021 by the respondent authorities directing to refund the gross amount of honorarium/fee, had preferred writ petitions WP(s) No. 1966 of 2021 and 1967 of 2021 before Hon'ble Jharkhand High Court in which interim stay on operation and execution of the aforesaid notice/OM was granted. Subsequently, Hon'ble High Court allowed withdrawal of the writ petition(s) with
-4- MA/051/00502/2022 (In OA/051/00612/2022) liberty to the petitioners to approach the appropriate forum. Applicant has pleaded that since the payment of honorarium was in accordance with the 'CSIR Guidelines', subsequent direction to refund the amount was a violation of the applicant's rights and If execution of the notice dated 05.08.2022 (Annexure 9) was not stayed, it would cause irreparable loss and severe financial hardship to the applicant.
5. In their short reply, respondents have maintained that the payment of honorarium to the CIMFR staff in March 2021 was made without observing the CSIR guidelines provisions at Para 8.1.4 (O) and para 8.2.12. Also, the payment was against the decision of CSIR Hqrs. to put on hold the distribution of monies/ honorarium among staff in all the CSIR Labs till further orders, which was communicated to different labs/units on 26.03.2021.
5.1. Respondents have maintained that according to Para 8.1.4 (O) of the guidelines, the decision of Management Council relating distribution of Honorarium/Fees should be displayed on notice board for thirty days for any representation/objection against the decision before distributing the monies/fees. The meeting of Management Council of CSIR-CIMFR was held on 22.03.2021 and the recommendation of the Management Council was approved on 23.02.2021. However, the honorarium was distributed on 25.03.2021 within three days itself disregarding the guidelines. Para 8.2.12 of
-5- MA/051/00502/2022 (In OA/051/00612/2022) the guidelines also requires Management Council decision in respect of Honorarium for Consultancy Services being displayed on notice board for 30 days before the distribution. Since the distribution of honorarium was made disregarding the provisions of para 8.1.4 (O) and Para 8.2.12 of the guidelines, CSIR Hqrs. decided for recovery of the money under para 8.2.16 of the guidelines. Para 8.2.16 provides that any distribution of honorarium/fee made in disregard to prescribed procedure and guideline would be deemed as unauthorised and liable to recovery with 12% interest. The decision to recover the honorarium distributed on 25.03.2021 was thus in accordance with the CSIR guidelines. The beneficiaries were given notice on 01.04.2021 and issued an OM on 12.04.2021 to refund the honorarium paid to them.
5.2 Respondents have also stated that prior to the Management Council meeting of CIMFR on 22.03.2021 and the distribution of monies/fees as honorarium on 25.03.2021, the Finance wing of CSIR had recommended on 12.03.2021 to put on hold further distribution of honorarium/fees in view of some irregularities. This was approved by the competent authority in CSIR and communicated to all the CSIR Labs/units on 26.03.2021. Finance Division of CSIR also asked the Directors of CSIR Labs on 19.03.2021 to provide by 24.03.2021 the details of money distributed as honorarium and the money which was left to be distributed. CIMFR authorities provided the required
-6- MA/051/00502/2022 (In OA/051/00612/2022) information on 24.03.2021 but did not mention about the Management Council meeting held on 22.03.2021 nor informed about the Management Council's approval to distribute Rs 22.86 crores as honorarium/ fees. After distributing the honorarium amount CIMFR informed the CSIR headquarters about the distribution of honorarium on 25.03.2021.
5.3 According to respondents, the applicant is a senior scientist in higher bracket of salary and hence, his plea for financial hardship was untenable and only to avoid the direction for refund of the honorarium amount. Permitting the applicant to keep the honorarium amount would be misuse of the taxpayers' money.
6. Ld. counsel for applicant, Sh. Rupesh Singh insisted on early hearing on the MA. Heard.
7. Shri Rupesh Singh, learned Counsel for applicant submits that payment of honorarium to the applicant was in accordance with the policy laid down under the CISR Guidelines ( Annexure 1). Para 8.1.4 (l to n) provides for setting up of a Standing Committee by the Director to consider and decide the recommendations of various Project Leader(s) regarding share of various officials. As required under the guidelines the Standing Committee's recommendation was shared with the concerned individuals and displayed at the notice boards on 23.02.2021. After no representation was received within 15 days, the Standing Committee sent its recommendations for
-7- MA/051/00502/2022 (In OA/051/00612/2022) distribution of honorarium to the Management Council on 12.03.2021. The Management Council met on 22.03.2021 and considered the proposal of the Standing Committee and recommended the same for approval and the honorarium was credited to the bank accounts of the payees including the applicant on 25.03.2021. The approval of Management Council was implemented without waiting for the 30 days' notice because there was no objection/representation against the Standing Committee's recommendation. Learned counsel also stated that para 8.2.16 was in respect of distribution of 'honorarium for consultancy services' and it was not applicable for licensing for intellectual property and knowledge base as well as contract R&D and Technical services. The only way the money paid for such job could be recovered was as per the provisions in para 8.1.1 (f).
7.1 Ld. counsel Shri Rupesh Singh also submitted that the agenda and minutes of the meeting of the Management Council was communicated to CSIR headquarters, New Delhi on 25.03.2021. The Office Memorandum from CSIR hqrs. directing all laboratories to keep the distribution of monies/fees in abeyance was received on 26.03.2021 . Hence, there was no violation of the policy guidelines or any disobedience of the directive of CSIR hqrs.
7.2 Shri Singh mentions that Hon'ble Jharkhand High Court had granted interim stay on execution of the notice dated 01.04.2021
-8- MA/051/00502/2022 (In OA/051/00612/2022) and OM dated 12.04.2021 after two of the beneficiaries had filed Writ petitions. Subsequently, the writ petitions were withdrawn and the Controller of Administration, CSIR-CIMFR issued notice on 05.08.2022 to deposit the gross amount of honorarium latest by 20.08.2022. Applicant has made representation against the notice but respondents have started deducting a sizeable part of his salary every month creating financial hardship. Ld. counsel submits that the applicant was not at fault and he should not be penalized for the action of others. Ld. counsel pressed the MA for grant of interim stay on the execution of the notice dated 05.08.2022.
7.3 Learned counsel for applicant put reliance on the judgements of Hon'ble Supreme Court in M.P. Medical Officers Association Vs. The State of Madhya Pradesh &Ors.[ Civil Appeal No. 5527/2022], Krishna Mohan Medical College and Hospital and another Vs. UOI [(2017) 15 SCC 719], Voltas Limited Vs. Tahsildar, Thane &ors. [(2012) 13 SCC 165], Olga Tellis and Others Vs. Bombay Municipal Corporation &Ors. [(1985) 3 SCC 545] and Mohinder Singh Gill & Another Vs. The Chief Election Commissioner, New Delhi [(1978) 1 SCC 405].
8. Dr. Adish Agrawal, Senior Advocate appearing for respondents reiterated the respondents' submissions in the short reply and asserted that the Management Council and the competent authority of CIMFR did not observe the provisions of 8.1.4(O) of the guidelines
-9- MA/051/00502/2022 (In OA/051/00612/2022) as they did not display the decision of Management Council on notice board and wait for 30 days for any representation /objection. They distributed the money within three days of the Management Council meeting. Ld. counsel argued that if the CIMFR authorities had followed the provisions of para 8.1.4 (o) of the guidelines, the distribution of Rs 22.86 crores would not have been possible because of the decision of CSIR Hqr. to keep any such distribution in abeyance which was communicated on 26.03.2021. He submitted that CIMFR authorities had got whiff of the impending direction and rushed to distribute the money disregarding the guidelines provisions. He mentioned that this incident was viewed seriously by the GoI and CBI also conducted a raid on CIMFR on 2nd-3rd August 2021 in this regard.
8.1 Ld. counsel for respondents refuted the argument of applicant that para 8.1.1 (f) of the guidelines was meant for recovery of honorarium from the beneficiaries. Dr. Agrawal averred that para 8.1.1(f) is meant to deal with legal action/dispute requiring refund/payment of money/fees by the CSIR to the client and in that eventuality the amount paid to the staff is recoverable. 8.2 Learned counsel for respondents stressed that as the distribution of honorarium was in contravention of guidelines and against the decision of the CSIR Hqrs., the beneficiaries had no legal claim on the money paid to them. Honorarium is a bounty on behalf
-10- MA/051/00502/2022 (In OA/051/00612/2022) of the organisation to motivate its staff/officials and incentivise better performance. The applicant was trying to keep the taxpayers' money which was distributed without fulfilling the guidelines. 8.3 Sh. Agrawal vehemently contested the applicant's claim that no show cause notice was issued to the applicant and hence, there was violation of principle of natural justice as. Shri Agrawal mentioned that CIMFR administration had issued notice on 01.04.2021 and an OM on 12.04.2021 directing the applicant (and other beneficiaries) to refund the money. The order of recovery was passed by respondents more than a year later on 05.08.2021. Hence, the applicant's claim that no notice was issued to him before the order or recovery was totally incorrect.
8.4 Shri Agrawal submitted that grant of interim relief as prayed for in the OA and MA will be an injustice to all those beneficiaries who have returned or are willing to return the money. It will also create a wrong precedence and justify a mala-fide action. Learned counsel, however, conceded that the order for recovery of gross amount of honorarium was a mistake as the income tax was already deducted before making the payment to the applicant.
9. After hearing the rival counsel, we have considered their submissions and materials on record.
-11- MA/051/00502/2022 (In OA/051/00612/2022)
10. Applicant has relied upon the judgement of Hon'ble Supreme Court in M.P. Medical Officers Association Vs. State of Madhya Pradesh (supra) and some other cases as mentioned at Para 7.3. In M.P. Medical Officers Association case supra, Hon'ble Apex Court held that the respondents were within their right to withdraw a circular issued earlier extending some financial benefits. However, the Hon'ble Supreme Court set aside the order of recovery of the money paid to the officials during the currency of the circular. 10.1. In Krishna Mohan Medical College & Hospital (supra), Hon'ble Supreme Court held that a party should be given reasonable opportunity of hearing.
10.2. In Voltas Limited Vs. Tahsildar Thane (supra), Hon'ble Supreme Court held that no penal order can be passed without giving any notice and hearing to the affected person.
10.3. In Mohinder Singh Gill Vs. Chief Election Commissioner (supra), the emphasis of Hon'ble Supreme Court was on observance of the principle of natural justice.
11. We are at this stage concerned about the prayer for interim stay and propriety warrants to refrain from making any observation which may prejudice interest of either party to lis and hence we are
-12- MA/051/00502/2022 (In OA/051/00612/2022) not inclined to pass any comments which may affect the merits of the OA. However, it is trite to say that honorarium is not a condition of service and an employee is granted honorarium as incentive/ reward for better performance. An employee has no legal right to claim for payment of honorarium which is contingent upon the performance and fulfilment of guideline norms.
12. The order to recover the amount from salary was passed on 05.08.2022 more than one year after the payment of honorarium. Further, the honorarium money is still with the applicant and recovery has been started from his salary because he declined to refund the honorarium money despite the notice and direction by the CIMFR administration.
13. Applicant has pleaded that a total 553 staff / employees were paid the honorarium/fees of which 490 staff had still not refunded the amount (Para 1.31, Annexure 6). It clearly implies that some staff have refunded the amount.
14. One of the prime contention of applicant that no notice was given to the applicant before starting recovery and this assertion has vehemently been refuted to by respondents. Parties to lis stuck to their rival claim, qua notice. It is a factual aspect and it would be better to adjudicate it at final stage because any observation at this stage may become prejudicial to the parties.
-13- MA/051/00502/2022 (In OA/051/00612/2022)
15. For grant of ad-interim stay three factors, viz. prima facie case, balance of convenience in favour of applicant and reasonable apprehension of irreparable loss to the applicant, are of vital importance. In instant case it cannot be said that if stay is not granted any irreparable loss would be caused. The ground of financial hardship as has been advanced from the side of applicant is untenable as the honorarium money is still with the applicant and he was given notice/direction within a month of the payment to refund the amount and the order to recover the amount from salary is because of applicant's refusal to refund. Further, ld. counsel for respondents has argued that any interim relief to the applicant would be injustice to the staff/employees who have already refunded the amount. Counsel for applicant has argued that Hon'ble Jharkhand High Court had granted interim stay on execution of the notice dated 01.04.2021 and OM dated 12.04.2021 in Writ Petitions No. 1966 of 2021 and 1967 of 2021. Said Writ Petition has since been withdrawn and any interim relief granted thereon has lost its sanctity. Further, the order of Hon'ble High Court does not reflect that the fact of several of the beneficiaries refunding the honorarium/fees was brought to their notice. We feel that granting interim stay would complicate the matter and may prompt those who have already refunded the amount to approach the Tribunal for fresh payment.
-14- MA/051/00502/2022 (In OA/051/00612/2022)
16. Taking the entirety and factual and legal scenario discussed above, we feel that it would not be appropriate to grant interim stay as has been prayed for. The MA thus stands dismissed.
[Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.