Central Administrative Tribunal - Cuttack
Kashinath Pradhan vs Survey Of India on 29 April, 2022
O.A. No.121 of 2019 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA 121 of 2019 Present: Hon'ble Mr.Swarup Kumar Mishra, Judicial Member Kashinath Pradhan, aged about 63 years, son of late Uchhab Pradhan, permanent resident of Vill./PO Angargaon, PS Kodala, Dist Ganjam - 752031.
......Applicant VERSUS
1. Union of India, represented through its Secretary to Govt. of India, Ministry of Science & Technology, Technology Bhawan, New Mehrauli Road, New Delhi - 110016.
2. The Surveyor General of India, Surveyor General's Office, Hathibarkala Estate, Post Box No. 37, Deheradun, Uttarakhand - 248001.
3. The Director, West Bengal & Sikkim Geo Spatial Data Centre, 13 Wood Street, Kolkata 700016.
......Respondents
For the applicant : Mr. S. K. Ojha, Counsel
For the respondents: Mr. A. C. Deo, counsel
Heard & reserved on : 18.04.2022 Order on : 29.04.2022
O R D E R
Per Mr.Swarup Kumar Mishra, J.M.
The applicant retired Officer of Survey of India has filed this OA under Section 19 of the Administrative Tribunals' Act, 1985 inter alia assailing and challenging the order under Annexure A/1 dated 09.05.2017 and under Annexure A/4 dated 22.06.2017 with the following prayers :
a) To admit the OA;
b) To quash the order/letter dated 09.05.2017 (Annex. A/1) and order/letter dated 22.06.2017 (Annex. A/4) holding the same as illegal and unjustified;O.A. No.121 of 2019 2
c) To declare that the Respondent No. 3 is not permitted to re-fix the pay of applicant in view of clear declaration made in Annex. A/2 and cannot recover Rs. 2,24,284/- showing excess payment made to the applicant;
d) To direct the respondent no. 3 to release the differential pensionary benefits which became admissible due to revision of pension after 7th CPC is implemented.
e) To direct the respondents no. 3 to release all such differential pensionary benefits with permissible interest till actual payment is made;
f) To direct the Respondent No. 2 to recover the interest amount from the pay and allowances of the Respondent No. 3 in the event it is so directed by the Hon'ble Tribunal;
g) And further be pleased to pass any other order/orders as deemed fit and proper.
2. According to the applicant on 30.06.2016 he retired from service on reaching the age of superannuation. On 09.11.2016, Respondent No. 2 issued order for refixation of pay with further instruction not to reopen file of retired employees. On 07.03.2017 the applicant requested for payment of differential pensionary benefit due to recommendation of 7th CPC. In letter dated 09.05.2017, the applicant was called on to deposit Rs. 2,24,284/- wrongly paid to him on account of refixation of pay in Gr. II service to enable the department to release his dues as admissible to him under rules. On 01.06.2017, the applicant submitted representation praying dispensation of the decision of recovery of the face of the letter dated 09.11.2016. In letter dated 22.06.2017 the said representation of the applicant was rejected and communicated to him. On 02.09.2017, the applicant submitted representation against the order of rejection dated 22.06.2017 to the Surveyor General of India followed by two representations dated 24.04.2018 & 28.06.2018. Thereafter alleging non consideration of his representation he has filed this instant OA on 18.02.2019 seeking the aforesaid relief. O.A. No.121 of 2019 3
3. It is the case of the respondents in the counter that as per the order under Annexure R/1 dated 28.10.2003, the benefit of FR 22 (1) (a) (I) if availed by any employee/officer upto becoming Grade II shall stand withdrawn before availing the benefit of ACP scheme and recovery, if any, shall be effected wherever applicable. As per the instruction refered to above the overdrawl due to fixation of pay was necessitated for recovery and accordingly the rest of the amount which was entitled to the applicant consequent upon his retirement released in his favour except minus the overdrawn amount of Rs. 2,24,284/- in compliance of order dated 27.03.2019 of this Tribunal. It has been stated that as per rule and law excess payment if any made to Govt. servant is recoverable either prior or after retirement. It has been stated that the respondent department in letter dated 28.08.2019 has made it clear that the cases of retired govt servant need not be reopened as stated in letter dated 09.11.2016 means the govt servants who have retired prior to 18.10.2003 need not be reopened and the present applicant having retired on 30.06.2016, the said circular is not applicable to the applicant in the present case. Further according to the respondents there being no illegality in the decision making process of recovery of amount wrongly paid to the applicant this OA is liable to be dismissed.
4. The applicant has filed rejoinder in which it has been stated that when a conditional offer is made, the offeree has a right either to accept or reject both or to make the counter offer. Once the offer is accepted it is presumed that the condition attached to the offer is accepted. In this regard he has placed reliance on the decision of Hon'ble Apex Court in the case of FCI Vrs O.A. No.121 of 2019 4 Ramakesh yadav (2007) 2 SCC (L&S) to state that letter dated 09.11.2016 which is the basis of making the recovery notwithstanding the clear cut mentioning that cases of retired govt servant need not be reopened is bad in law and to buttress his stand it has been stated that a similar matter came up under judicial scrutiny before CAT, Gauhati Bench in OA No. 166/2019 (Shri Ajendra Nath Sarma versus Union of India) wherein Gauhati Bench declared the recovery from retired govt servant is bad in law vide order dasted 22.07.2020. Further it has been stated that since the applicant retired from govt service on 30.06.2016, recovery in the name of wrong fixation of pay alleged to have been occasioned much before his retirement is not permissible. In this regard he has placed reliance on the decision of Hon'ble Apex Court in the case of State of Punjab & others vs Rafiq Masih (white washer) & others 20105 (4) SCC 334 and the circular issued by DOPT dated 02.03.2016 to that effect.
5. In course of hearing, Learned counsel for the respondents has submitted reply to the rejoinder after serving copy thereof to other side inter alia stating therein that applicant is estopped under law to raise any objection for the recovery of the amount wrongly paid to him in view of the undertaking submitted by him on 15.06.2004 and 18.10.2010 as a precondition for fixation of pay to the effect that "I hereby undertake to refund to the Govt. the excess amount if any paid to me due to wrong fixation of any on my promotion/up gradation". It is further submitted that when the over drawn comes to the notice of the Drawing & Disbursing Officer, it has been rectified and no recover is made from pension of the applicant but recovered from the arrears of applicant's DCRG of the 7 th CPC. O.A. No.121 of 2019 5
6. Learned counsel for the applicant relied on few citations including the following.
a) Hon'ble Apex Court in the case of FCI Vrs Ramkesh Yadav (2007) 2 SCC (L&S) 559.
b) CAT Guwahati Bench, in OA No. 166/2019 (Shri Ajendra Nath Sharma vrs Union of India & others.
7. Learned counsel for the respondents relied on few citations including the following:
a) Hon'ble Apex Court in the matter of High Court of Punjab & Haryana vs Jagdev Singh.
b) CAT Jodhpur Bench in OA No. 481/2018.
8. Thoughtful consideration was given to the arguments advanced by the respective parties and perused the record vis-à-vis the citations relied on by the parties concerned. Admitted fact of the matter is that the applicant was given ACP benefit in the year 2003 and MACP benefit in the year 2009 and that the applicant had never misrepresented any fact and any undertaking at that point of time. The undertaking the respondents are relying on is of 03.02.2017 (Annexure R/4) that is after close to 6 months of his retirement i.e 30.06.2016. It is the stand of the respondents that the applicant having signed the undertaking dated 03.02.2017 is estopped from challenging the recovery of amount because of wrong fixation. The applicant on the other hand submitted that the said recovery dated 03.02.2017 was obtained at the time of fixation of pay/DCRG after implementation of 7th CPC and that in no way relates to the fixation of pay done back in the year 2003 and 2009 and as per the ration decided by Hon'ble Apex Court in State of Punjab O.A. No.121 of 2019 6 versus Rafiq Masih (white washer) AIR 2015 SCC 1267, the recovery from the applicant is illegal.
9. Recovery on wrong fixation of pay has been a subject matter of close scrutiny by the judiciary and principles have been enunciated by Hon'ble Apex Court in plethora of cases like Rafiq Masih (supra)(relied on by the applicant) and High Court of Punjah & Haryana vrs Jagdev Singh (2016) 14 SCC 267 (relied on by the respondents). Hon'ble Apex Court in the case of Rafiq Masih (supra) had held:
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
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."
Hon'ble Apex Court while deciding on the matter of recovery in Jagdev Singh (supra) had held:
"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 O.A. No.121 of 2019 7 refunded. The officer furnished an undertaking while opting for the revised pay 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 instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.
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.
10. Hon'ble High Court of Chhatisgarh in Shankar Narayan Chakrawarty vs State of Chhattisgarh in its order dated 30.01.2020 had held as under:
"4. The reliance placed by the State in case of High Court of Punjab & Haryana v. Jagdev Singh (supra) would show that in such case the Supreme Court permitted the recovery to be made on the basis of undertaking given earlier. In the said case, the respondent was appointed as Civil Judge and Rules governing the service were namely Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001. Under those Rules, each of the officers were required to submit an undertaking that any excess which may be found to have been paid will be refunded to the Government either by adjustment against future payments due or otherwise. Therefore, there was a mandatory requirement under the Rules itself. The Supreme Court while deciding the said case emphatically referred to the service rules and held that undertaking given in such circumstance would be executable and observed it that the ratio of State of Punjab & Ors. v. Rafiq Masih (supra) cannot be applied uniformly. It was held in case of High Court of Punjab & Haryana v. Jagdev Singh (supra) that 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. Consequently, the officer furnished an undertaking while opting for revised pay-scale.
5. In the instant case, as per Annexure P-2, the recovery has been sought to be made for the period of revised pay scale from 1986 till 01.07.1913. The undertaking on which the State placed reliance is of 01.07.2017 i.e. much after the amount of revised pay-scale was calculated and paid. Reading of undertaking further would show that the petitioner was put to notice that the excess payment made after 1 st January, 2016 i.e. one other revised pay scale and thereby consented and undertook to make the payment, if it has been made excess. The undertaking was specially for the specific period starting from 01.01.2016; consequently, it cannot take into sweep the past payment O.A. No.121 of 2019 8 made from 1986 till 2013. The law laid down by the Supreme Court in High Court of Punjab & Haryana v. Jagdev Singh (supra) also clearly marks a distinction as in that case, the officer in the "first instance" was placed on notice that in case excess amount is paid then it would be recovered on account of revised pay scale paid. In the instant case, for the payment made from 1986 to 2013, no such undertaking exists which postulates that petitioner was put on guard and was noticed that excess payment made would be recoverable. Therefore, it cannot be stated that the revised pay scale when was given in 2017, it would include the past pay scale which was paid uptill 2013 as it cannot be applied retrospectively.
6. Therefore, the ratio of judgment of High Court of Punjab & Haryana v. Jagdev Singh (supra) will not be applicable to the case of the petitioner as also the ratio laid down by the Hon'ble Division Bench of this Court in W.A. No.376 of 2019 cannot be applied universally to the facts of case of the petitioner...
7......
8. Therefore, the ratio of judgment rendered in case of State of Punjab & Ors. v. Rafiq Masih (supra) would be applicable. To conclude, it is observed that the undertaking given by an employee cannot be used uniformly when the recovery of dues is done after his retirement or otherwise there cannot be a straight jacket formula for such recovery. Rather the execution of undertaking, the time when it was executed would be relevant factor to evaluate whether the State can be allowed to act upon on such undertaking. In the facts of this case, the undertaking given by the petitioner in the year 2017 cannot be allowed to stand to recover the dues for the payment made from 1986 to 2013."
11. From the decisions referred to above, makes it crystal clear that there is no straight jacket formula for recovery of dues from the applicant after his retirement or otherwise and the time of execution of the undertaking will be the relevant factor. In the case of the applicant, the proposed recovery is being sought to be done for wrong fixation of pay at the time of granting benefit of ACP/MACP in the year 2003/2009 and the respondents are relying upon the undertaking given in the year 2017, after the employee retired in 2016 to justify their action, which is not permissible. O.A. No.121 of 2019 9
12. On the basis of judgment of Hon'ble Apex Court in Rafiq Masih (supra) DOPT had issued OM dated 02.03.2016 on the subject of "Recovery of wrongful/excess payments made to Government servants". Para 4 of the OM is quoted below:-
"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.
(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
13. The DOPT OM dated 02.03.2016 has not been superseded by any further OM on the subject and therefore still in force. All the Ministries/Department are required to follow the OMs/Circulars issued by the DoPT, Ministry of Personnel, Public Grievances and Pensions being the nodal Ministry.
14. In view of the above discussion, settled position of law and DOPT OM cited above, this Tribunal is of the opinion that the recovery proposed by the O.A. No.121 of 2019 10 respondents is not permissible in view of para 4 (ii) & 4(iii) of DOPT OM dated 02.03.2016 as the applicant had already retired and that the period of recovery is from the year 2003, i.e. more than 5 years. This Tribunal in the facts and circumstances of this case is of the opinion that the same will be inequitable and will cause undue hardship to the applicant. The citations relied upon by learned counsel for the respondents are not applicable to the facts and circumstances of this case. Accordingly the impugned order dated 09.05.2017 (Annexure A/1) & dated 22.06.2017 (Annexure A/4) is quashed and set aside. There shall be no recovery from the amount withheld by the respondents from his DCRG and the amount of DCRG held by the respondents be disbursed to the applicant within a period of 90 days from the receipt of copy of this order.
15. The OA is accordingly allowed. But in the circumstances without any order to cost.
(SWARUP KUMAR MISHRA) MEMBER (J)