Central Administrative Tribunal - Kolkata
Pulak Kumar Dutta vs M/O Defence on 31 October, 2022
read CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA OA. 350/140/2018 Date of order: 3h i821 - Present 'Hon'ble Ms. Bidisha Banerjee, Judicial Member Shri Pulak Kumar Datta, son of late Manoranjan Datta, aged about 65 years, superannuated w.e.f. 30.09.2013 while working for gain as Junior Works Manager, under the DGOF & Chairman, OFB, Kolkata 'and residing at 6 A, Hari Charan Chatterjee Street, Ariadah, Kolkata- 57. sesenseusonene Applicant. -versus- 1. The Union of India service through the Secretary, Ministry of Defence, Dept. of Defence Production, having its office at South Block, New Delhi- 110011. 2. Ordnance Factory Board service through the DGOF & Chairman, OFB, 10-A, S. K. Bose Road, Kolkata- 01. 3. The Director/HOrs. OFB, 10-A, S. K. Bose Road, Kolkata- 01. 4. The Staff Officer/HOrs. OFB, 10-A, S. K. Bose Road, - Kolkata- 01. wae RESPONdents. Cor the Applicant : Mr. N. P. Biswas, Counsel For the Respondents : Ms. P. Goswami, Counsel ORDER (Oral)
Per Ms. Bidisha Banerjee, JM:
x This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub section (6) of Section 5 of the Administrative Tribunal Act, 1985 and as no complicated question of law is involved this matter is taken up for disposal with the consent of both the parties.
2. _ Heard Id. Counsel for both sides.
3. The applicant in this OA has sought for following reliefs:
"la) -- Toissue an order/direction to cancel, withdrawn and/or rescind the impugned order vide Daily Order Pt. If No. 1572, dated 12,12:2017, issued by the Staff Officer/HQrs. for Director General, Ordnance Factories, directing that three advance increments granted to Shri Pulak Kumar Datta, retired Junior Works Manager of OFB, for acquiring higher qualification, i.e. AMIE, w.e.f. 26.06.1986 is withdrawn and as contained at Annexure -- A/13.
(b) To issue an order/direction to cancel, withdraw and/or rescind the impugned order vide No. 2185/PKD/JWM/2015-HQ/GB, dated 17.10.2017, issued by the Director/HQrs. for Director General, Ordnance Factories, Kolkata directing that the applicant is not entitled for 3 advance increments for acquiring higher qualification on 26.06.1986 and further directing recovery of excess payment for grant of 3 advance increments w.e-f.
26.6.1986 and as contained at Annexure A-13.
(c) To issue an order/direction to the respondents and each of them, their subordinates and/or agents, not to revise the pension and any of the retiral benefits and to make any recovery from the pension of the applicant.
(d) To-issue an interim order as prayed herein paragraph 9 of the application.
(e) To direction the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of points at issue.
(f) . Topass any other just and equitable order or further order or orders and/or direction or directions, which may be considered appropriate, in the facts and circumstances of the case.
(g) To award cost pertaining to this application."
4. The admitted facts are the following:
Thata scheme of granting advance increments to the civilian employees for undergoing higher qualification was introduced vide MOD OM No. 96850/V/1967/DTTA/884/D (Civ.l}) dated 04.02.1969. It ceased to exist on 01.12.1973 vide MOD OM No. 3(1)/73/73/2236/D (Civ. |) dated 18.03.1974. The :
DoPT, vide its OM dated 28.06.1993 replaced the scheme of giving advance increments by the scheme of granting lump sum amount as incentive, subject to certain guidelines mentioned therein. The scheme was effective from the financial year 1993-94.
Further, an OM dated 31.01.1995 was issued by the DOPT that inter-alia requested all ministries and departments to convert the existing increment based incentive already sanctioned to their employees into one lump-sum incentives with immediate effect.
The applicant Shri Pulak Kumar Datta had not placed any claim for grant of incentive for undergoing higher qualification. In spite of that, he was granted -a lump-sum amount of Rs. 4000/- (Rupees Four Thousand only) in terms of DOPT OM dated 28.06.1993 vide D.O.Pt. Il No. 245 dated 18.06.1996. The said lump-sum amount was duly accepted by the applicant. In the year 1999, the Ernakulam. Bench of CAT allowed an OA being No. 755 of 1997 filed by Shri S. Ramamswamy for grant of three advance increments. However, Shri $. Ramamswamy unlike the applicant had 'not accepted the lump-sum scheme for undergoing higher qualification. In the year 2004, the applicant sought for by way of a representation for grant of three advance increments in terms of the scheme which had ceased to exist since 1973. His request was duly considered and the matter was referred to Ministry of Defence. The Ministry of Defence, anticipating the applicant's case to be similar to OA. 755 of 1997, directed Ordnance Factory Board to extend similar benefits to the applicant vide MoD ID dated 18.08.2010. Thus, vide Order No. 2185/HO/GB dated 10.09.2010 the same j.e. the benefits of MoD Circular No. 96850/V/1967/DTTA/884/D (Civ . |) dated 04.02.1969 were extended to the applicant w.e.f. 1986 without taking into account the fact that the said scheme had ceased to exist since 1973. However, MoD vide order dated 26.07.2016 (Annexure y A-11 to the OA) issued a clarification on the issue in which it was emphatically stated that "the scheme of advance increments introduced vide OFB OM dated 04.02.1969 ceased to exist w.e.f. 01.12.1973'. It was further clarified in para 9 of the said order that "there was no existing sanctioned scheme in force in the -
Ministry of Defence after the scheme of 03 advance increments ceased to exist wef, 01.12.1973 in terms of OM No. 3(1}/73/73/2236/D (Civ. 1) dated 18.03.1974."
The Ministry therefore directed re-examination of the case of the applicant in the | light of instructions/clarifications issued by DOPT.
Under such re-examination in light of DOPT instructions/clarifications it was found that the grant of three increments to the applicant, considering his case to be similar to OA. 755 to 1997 was erroneous, since the scheme of granting advance increments to the civilian employees for undergoing higher qualification had ceased to exist on 01.12.1973 vide MOD OM No. 3(1)/73/73/2236/d (Civ. I) dated 18.03.1974. A letter dated 17.10.2017 was issued to the applicant giving him the opportunity in accordance with the principles of natural justice to make representation against the proposal of withdrawal of three advance increments granted to him erroneously.
The applicant submitted a representation dated 03.08.2017 with a request 'not to withdraw the three increments granted to him. The said request of the applicant was duly considered and a reply dated 17.10.2017 was issued to him 'giving in detail why it was necessary to withdraw the increments granted to him erroneously, that the scheme of three advance increments had ceased to exist for '01.12.1973 and therefore he was no entitled for the same. That corrective action being the only rational corollary of erroneous action that said erroneous. --
increments granted to the applicant were withdrawn vide DO Pt. Il No. 1572 dated 12.12.2017. Aggrieved the instant OA has been filed by the applicant.
5. The respondents would allege that the applicant has tried to mislead this Tribunal by deliberately concealing the true facts that the applicant had been granted a lump-sum amount of Rs. 4,000/- in terms of DOPT OM dated 28.06.1993 on 18.06.1996 which he had quiescently accepted.
6. The applicant on the other hand would claim that the incentive in the form of 3 increments ought to have been given to him in 1986 itself but for no fault of his, he was denied the same for ten years. In consultation with D (Civ) Section, MoD/D(FY.II), vide ID No. 483/US (OS) ID (FY.11)/08 dated 18.08.2010 at Annexure - A/9, page 37 to the OA ordered that the case is similar to the OA. 755/97 and Shri Dutta was entitled to get three increments in the year 1986 itself as he had | informed the office about acquisition of the higher qualification and the same was | recorded in his service book. Shri Dutta is, therefore, eligible for grant of benefits of the order dated 4.2.69 which may now be extended to him and the lump sum amount already paid to him may be recovered. Accordingly, order was issued but . OFB vide Memorandum dated 10.09.2010 (Annexure A-10, page 38 of the OA, and _ the applicant's pay was re-fixed by granting three advance increments w.e.f. 26.06.1986 vide order dated 03.12.2010, at Annexure A-10; page 39 of OA.
The applicant retired from service with effect from 30.09.2013. Now, after seven years of the above order and four years after superannuation, the respondents have issued the impugned orders that the applicant is not entitled to advance increments and has withdrawn the three advance increments granted to the applicant with effect from 26.06.1986.
6That, the CAT, Ernakulam Bench, (OA. No. 755/97) as well as this Hon'ble Tribunal (OA. No. 327/2013) have clearly laid down the ratio that in case an employee has acquired Section 'A' & 'B' course of AMIE before the effective date i.e. 01.04.1993 of the new incentive scheme as mentioned in OM dated 28.06.1993 is entitled to three advance increments in terms of the order dated 4.2.69 and thus, the respondents were directed to grant three advance increments from the date he acquired the qualification by the applicants therein. That the Hon'ble CAT, Principal Bench, vide order dated 07.02.2017 in OA. No. 164/2015 (Satish Kumar v. Union of India) also accepting the above ratio has allowed the OA filed by the applicant therein. The Department's appeal before the Hon'ble High Court of Delhi at New Delhi, in W.P.( C) No. 1817/2019 and CM Nos. 8501/2019 and 8594/2019 was dismissed by an order dated 07.03.2019 and the order of the Hon'ble CAT, Principal Bench, has been upheld. Similar views have been held by other Benches of Tribunal and High Courts. In view of this legal position, it was fervently urged that the respondents cannot take away the benefits of three advance increments. That the increments were granted to the applicant from 26.06.1986 after extensive examination in various levels, recovery after seven years from the order and four years after retirement is impermissible according to the law laid down by the Apex Court in State of Punjab & Ors etc. vs. Rafiq Masih (White Washers) etc. (2015) 4 SCC 334 and as articulated in the DoPT OM F. No. 18/03/2005-Estt. (Pay.|), dated 24 March, 2016.
The respondents, after such a long time cannot ignore or overrule the established law by an administrative decision. The order dated 07.10.1999 in OA. No. 755/97 by the Hon'ble Ernakular Bench, has been followed by Hon'ble Principal Bench of Tribunal in OA. 164/2015 (Satish Kumar vs. Union of India) and the order = 7 of the Principal Bench has attained 3 finality being upheld by Hon'ble High Court of Delhi at New Delhi, in W.P. (C) No. 1817/2019 and CM Nos. 8501/2019 and 8594/2019 vide order dated 07.03.2019.
In view of such legal position, the impugned orders passed by the respondents are unsustainable and deserve to be quashed and set aside with an order for cost to the applicant.
7. In OA. 164/2015, the Principal Bench of this Tribunal was examining the correctness of grant of two advance increments on passing of Section 'B' of AMIE where the applicant had not received the lump-sum of Rs. 4,000/- according to circular dated 28.06.1993. The said applicant had referred the case of Pulak Kumar Dutta i.e. the present applicant. The Tribunal considered the order passed in OA. 327/2013, titled Dushmanta Nag vs. Union of India & Ors. which was disposed of on 19.06.2014, where similarly placed persons had sought for grant of 3 advance increments in terms of Ministry of Defence Circular dated 04.02.1969 and the order passed by the Ernakulam Bench in OA. 755/1997 for grant of advance 3 increments on acquiring of higher qualification in terms of 1969 Scheme as the qualification was earned prior to introduction of 1993 Scheme. The applicants were granted -
benefits by the Tribunal.
8. The respondents had taken a plea therein that the case of Satish Kumar, the 'applicant in OA. 164 of 2015 stood on a different footing vis-a-vis Pulak Kumar Dutta as Pulak Kumar Dutta in OA. 755/1997 had informed his office about acquiring of higher qualification and the same was recorded in his service book through the due process, which was not the case in the case of the applicant. It is in his background that orders dated 14.08.2014 and 06.10.2014 have been issued on the representation of the applicant rejecting his claim as the claim was not made ' 8 within six months from the date of acquisition of higher qualification. In fact order dated 14.08.2014 was issued to be General Manager, Ordnance Factory, directing -
him that advance increment granted to the applicant along with two others be revoked immediately and over drawal of Pay & Allowances adjusted accordingly --
under limitation to this office.
The Tribunal recorded the following:
"11. The whole case of the respondents is that since the applicant did not prefer his option within six months of issuance of letter dated 16.5.2008, he is not entitled to the advance increments w.e.f. 05.02.1978. The issue in our opinion is very simple. Both the Ernakular Bench and the Calcutta Bench have clearly laid down the ratio that in case an employee had acquired section 'B' course of AMIE before the effective date, namely, 01.04.1993 mentioned in OM dated 28.06.1993 and the respondents were directed to grant three advance increments from the date he acquired the qualification. This ratio squarely applies in this case as well and the advance increment cannot be denied to the applicant on the sole ground that he did not opt for the incentive within six months of Circular dated 16.05.2008. The applicant had informed the Department in 1978 itself, the department slept over it. In fact, the Hon'ble Supreme Court in $.R.Bhanrale Vs. Union of India and Others (1997) (1) SU 14, have held that in case it is the Government's fault then limitation will not apply. in any case, the applicant has filed this OA only after the order dated 14.08.2014 was issued by which the advance increment granted have been withdrawn. In our opinion there is no question of limitation applying in this case.
Further more, the respondents themselves have issued a letter dated 28.01.2015 seeking to examine afresh all such left over cases in which the applicant could not be granted these benefits.
12. We, therefore, allow this OA quash the orders dated 14.08.2014 and 06.10.2014 and direct the respondents to fix the pay of the applicant in accordance with orders dated 2.04.2013 and 17.08.20213 extending the benefits of advance increment for acquiring higher qualification w.ef. 5.02.1978 and revise the retirement benefits of the applicant accordingly. It is made clear that all consequential benefits i.€. arrears of pay etc. would be paid to the applicant. We grant 90 days time from the date of receipt of a certified copy of this order for compliance of this order by the respondents."
9. Therefore, the respondents having on one hand supported the grant of benefits of the present applicant i.e. Pulak Kumar Dutta, the applicant in OA. 755 of 1997 cannot turned around volte-face to deny the benefits which have attained a finality by virtue of the order passed in the previous round. --
Moreover, in view of the law laid down in State of Punjab & Ors. vs. Rafiq Masih (White Washer), recovery from retired employee towards over payment =.
| | where over payments are not as a result of in fraud or misrepresentation on the part of the employee is impermissible. In Rafiq Masih supra, the Hon'ble Apex Court have formulated the following situation where recovery would be impermissible.
He citing the decision of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 where the Hon'ble Apex Court.
postulated as under:
oon vereetosenes following few situation, wherein recoveries by the employers would be impressible in law:-
(i)
(ii)
(iii)
(iv)
(v) .
Recovery from employee belonging to class-III and class
-IV service (or "Group -- C and Group- D" service).
Recovery from retired employees, or employees who are due to retire within one year of order of recovery.
Recovery from employees, when the excess payment has been made fora period i in excess of five years, before the order of recovery is issued.
Recovery in cases where an employee has wrongfully.
been required to discharged duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against and inferior post.
n any. other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh of arbitrary to such an extent, as would for outweigh the "equitable of the employer's right to recover."
10. In view of such and in the aforesaid backdrop, the order dated 12.12.2017 directing the recovery of advance increments etc. are quashed. The recovered amount is directed to be refunded without any revision of pension and other retiral benefits as was already granted to the applicant at the time of his retirement.
11. Thus, the OA would stand disposed of. No costs.
od (Bidisha Banerjee) | Member (J)