Central Administrative Tribunal - Delhi
Dr Suchita Ninawe vs Science And Technology on 10 May, 2023
1
O.A. No.2944/2022
Item No.43
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2944/2022
Order reserved on 27th March, 2023
Order pronounced on 10th May, 2023
Hon'ble Mr. Mohd. Jamshed, Member (A)
Dr. Suchita Ninawe
d/o Shri L J Sherke,
aged 56 years
Scientist 'G', Department of Biotechnology
Ministry of Science & Technology, New Delhi
Union of India
r/o House No.B 17
Block B, Type V-B
Hudco Place, New Delhi - 110 049
...Applicant
(Mr. Ankit Jain, Advocate)
Versus
Union of India
Through its Secretary
Department of Biotechnology
Ministry of Science & Technology
Block -2, 6th to 8th Floor
CGO Complex, Lodhi Road,
New Delhi - 110 003
...Respondent
(Mr. Pradeep Kumar Sharma, Advocate)
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O.A. No.2944/2022
Item No.43
ORDER
The applicant was appointed as Scientist 'G' under the modified Flexible Complementing Scheme (FCS) w.e.f. 29.06.2013. It is submitted that as Scientist 'G', the applicant has been drawing transport allowance (TA) @ Rs.7000/- plus dearness allowance (DA) per month. Subsequently, an audit inspection was conducted by the audit team, who, vide Audit Memo No.39 dated 12.08.2016, found that the overpayment of TA was made to Scientists/officers of the level of Joint Secretary and above having Grade Pay of Rs.10000/-. A clarification was issued by the Department of Expenditure (DoE), vide O.M. dated 19.08.2016, clarifying that the officers, who are not entitled for use of official car for commuting between the residence to office and back, are not eligible to opt for drawl of TA @ Rs.7000/- plus DA per month, even though they are drawing Grade Pay of Rs.10000/- in Pay Band 4. The respondents, however, clarified to the audit that the post of Scientist 'G' with Grade Pay of Rs.10000/- is a Joint Secretary equivalent post and hence, the facility of 3 O.A. No.2944/2022 Item No.43 TA @ Rs.7000/- + DA per month is being provided to Scientist 'G'.
2. It is further submitted that DoE subsequently, vide notification dated 21.09.2017, has approved the grant of TA at a higher rate to Scientist 'G' equivalent to Senior Administrative Grade (SAG) level promoted under FCS w.e.f. 01.09.2017. As a result of this subsequent order, the applicant along with other Scientists 'G' is now receiving the enhanced TA at a higher rate w.e.f. 01.09.2017. However, based on the audit report, the respondents have decided to initiate the process of recovery of excess payment made towards TA from Scientists 'G', who have been getting the same since their promotion till August, 2017. List of such officers, who were granted TA, was prepared, including those who have been receiving such TA from September, 2008 to August, 2017. The respondents prepared a final list and sent a proposal to DoE to waive off the overpayment as detected by the audit team towards TA with detailed justifications. Many of those featuring in the list were considered for non-recovery. 4 O.A. No.2944/2022 Item No.43 The DoE confirmed that on scrutiny of the names sent by the respondents, many are found to have retired from service, relieved from those posts and some of them are on the verge of retirement. Accordingly, their names were deleted from the list of those against whom the recovery of overpayment was proposed.
3. The applicant's case was, however, not considered and order of recovery was passed on 31.12.2021, indicating that a recovery of overpayment of TA amounting to Rs.4,06,467/- may be made in 47 monthly instalments of Rs.8500/- each and 48th instalment of Rs.6,967/-. This recovery is to be made for the overpayment of TA for the period from July, 2013 to August, 2017. The applicant is aggrieved by the said order and has filed the present O.A. seeking the following relief:-
"a) declare the impugned OM dated 31.12.2021 as illegal, arbitrary, discriminatory, unreasonable, unjust, inequitable and quash and set aside the same and direct the Respondent to waive off overpaid Transport allowance made to the applicant amounting to Rs.4,06,467/-, and refund 5 O.A. No.2944/2022 Item No.43 the amount already recovered from the applicant till date with interest;
b) direct the Respondent to declare the post of Scientist G in the Department of Bio-Technology is equivalent to the rank of Joint Secretary.
c) direct the Respondent to amend its Recruitment Rules to include the fact that in-situ promotion in Department of Bio-Technology is not an NFU (Non-Functional Upgradation), but a functional upgradation;
d) grant monetary compensation to the applicant on account of mental harassment, and legal expenses;
e) pass any other order(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present application."
4. The above mentioned relief sought by the applicant is not only for staying the recovery, but also for refunding the amount, which has already been recovered. The relief is also sought in terms of declaration that the post of Scientist 'G' in the Department of Bio-Technology is equivalent to the rank of Joint Secretary and to amend the Recruitment Rules to include the fact that in situ promotion in the Department of Bio-Technology is not Non-Functional Upgradation (NFU) but a functional upgradation. 6 O.A. No.2944/2022 Item No.43 Learned counsel for applicant has submitted that relief 8 (a) is the primary relief being sought.
5. The respondents have filed counter affidavit opposing the O.A. It is submitted that in terms of DoE O.M. dated 29.08.2008, officers drawing Grade Pay of Rs.10000/- and who are entitled to use of official car in terms of O.M. dated 28.01.1994, are to be given the option to avail of the existing facility or to draw the TA @ Rs.7000/- per month + DA thereon.
6. It is further submitted that DoE, vide order dated 21.09.2017, has decided to extend the facility of the use of official car for journeys from residence to office and back in terms of O.M. dated 28.01.1994 or in lieu of staff car, TA @ Rs.15,750/- per month + DA thereon to Scientists 'G' promoted under FCS in SAG.
7. It is also submitted that the proposal, recommending to waive off the overpayment made towards TA, has been turned down by the DoE. It is further submitted that in terms of the Department of 7 O.A. No.2944/2022 Item No.43 Personnel & Training (DoPT) O.M. dated 02.03.2016, the case of the applicant does not fall in any of the categories and, therefore, the recovery has been rightly effected from the salary of the applicant.
8. The respondents, in support of their arguments, relied upon the judgment of the Hyderabad Bench of this Tribunal in Dr. Raghuvir Prasad Mathur v. The Union of India & another (O.A. No.376/2020) decided on 08.10.2021, wherein similar relief sought has been rejected.
9. The applicant, on the other hand, has relied upon the following orders/judgments of this Tribunal and Hon'ble High Court of Delhi:
Tribunal
i) Dileep Kumar Jain & others v. Union of India (O.A. No.497/2015) decided on 01.08.2017,
ii) S P Singh & others v. Union of India (O.A. No.1882/2015) decided on 28.09.2018, 8 O.A. No.2944/2022 Item No.43
iii) Gulshan Raj & others v. Union of India (O.A. No.1502/2018) decided on 30.11.2018; and
iv) P M Scott v. Union of India (O.A. No.173/2018) decided on 11.03.2019.
Hon'ble High Court
i) Union of India & another v. J S Sharma & others (W.P. (C) No.5555/2013) decided on 04.09.2013,
ii) Union of India & another v. S P Singh & others (W.P. (C) No.23/2021) decided on 06.01.2021; and
iii) Union of India & another v. Gulshan Raj & others (W.P. (C) No.11015/2020) decided on 06.01.2021.
10. Heard learned counsel for the parties and perused the material placed on record.
11. The applicant was promoted as Scientist 'G', which is Joint Secretary level post with Grade Pay of 9 O.A. No.2944/2022 Item No.43 Rs.10000/- on 29.06.2013 w.e.f. 01.07.2013 under modified FCS in the Department of Biotechnology, Ministry of Science & Technology. Being in the SAG / Joint Secretary level post, she was drawing a Grade Pay of Rs.10000/-. She was also availing the TA from July, 2013 to August, 2017. During the audit inspection in 2016, it was detected that the overpayment of TA has been made to the Scientists / officers of the level of Joint Secretary and above for which they are not entitled. A list was prepared in respect of all those officers, who were drawing the TA at a higher rate between 2008 and 2017. It is relevant to mention here that subsequently DoE, vide order dated 21.09.2017, decided to extend the facility of the use of official car for journeys from residence to office and back in lieu of staff car @ Rs.15,750/- per month + DA thereon to Scientists 'G' promoted under modified FCS in SAG, and the same was admissible w.e.f. 01.09.2017. It is, thus, obvious that although the applicant was promoted as Scientist 'G' in 2013 and availed of TA, equivalent to that of SAG / Joint Secretary level post, but on the basis of audit objection this was considered to be an 10 O.A. No.2944/2022 Item No.43 unauthorized excess payment and recovery was ordered vide the impugned order.
12. It is also on record that list of many similarly placed Scientists, who had availed of the said TA, was forwarded to DoE, which, in turn, decided not to recover any amount from a number of similarly placed Scientist in view of the fact that they have retired or about to retire.
13. It is further indicated that the decision not to recover the overpayment from a number of such Scientists was taken on the basis of the directions given by the DoPT vide O.M. dated 02.03.2016. It would, thus, be necessary to consider the relevant paragraphs of said O.M., which read as under:-
"4. The Hon'ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-11 O.A. No.2944/2022
Item No.43
(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.
5. The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No.11527 of 2014 (arising out of SLP (C) No.11684 of 2012) in State of Punjab and others etc vs Rafiq Masih (White Washer) etc. However, wherever the waiver of recovery in the above- mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department's OM No.18/26/2011-Estt (Pay-I) dated 6th February, 2014."
12O.A. No.2944/2022 Item No.43
14. It has also been noted that the Hon'ble Supreme Court in State of Punjab & others etc. v. Rafiq Masih (White Washer) etc. (Civil Appeal No.11527/2014) did not stipulate all the situations and, therefore, technically the applicant may not be covered by the conditions as she has not retired or about to retire within one year; and the period for which such allowance has been paid to the applicant was not more than five years.
15. This further brings the Tribunal to the submissions made by the respondents in paragraph (8) of the counter affidavit clearly stating that the Scientist 'G' post comes under the pre-revised scale of Pay Band 4 with Grade Pay of Rs.10000/- and that the Department extended the facility to avail staff car / TA @ 7000/- + DA per month to these Scientists. Obviously, the respondents were aware of the status of these Scientists and their equivalence vis-à-vis SAG / Joint Secretary level officers.
13O.A. No.2944/2022 Item No.43
16. It has also been observed from the counter affidavit filed by the respondents that repeated efforts have been made in sending the case of the applicant to DoE and DoPT seeking clarifications whether the Scientists 'G', who have been promoted under modified FCS, can be treated at par with Joint Secretary. Paragraphs 14 to 20 of the counter affidavit read as under:-
"14. That the matter was discussed with Department of Personnel & Training (DoPT) Officials in Oct 2016, and it came to light that a list of Joint Secretary and JS equivalent officers is available on the website of DoPT and outside that list, no other officer were to be considered as Joint Secretary equivalent. The list did not contain the names of Scientists 'G' of any Department (Annexure R-5).
15. That DoPT was requested to clarify vide DO letter No.A-19011/01/2015 dated 11th November 2016 whether the Scientist 'G' who were promoted under Modified Flexible Complementing Scheme (MFCS) can be treated at par with Joint Secretary or not. DoPT on 31st January 2017 vide DO letter No.1208883/16/CR suggested to refer the matter to DoE for seeking necessary clarification. (Annexure R-6).
16. That the practice in different scientific ministries regarding payment of Transport Allowance (TA) to Scientists was quite different from each other. Department of Science & Technology was allowing TA @ 7000/- + DA pm. Ministry of New & Renewable Energy was 14 O.A. No.2944/2022 Item No.43 allowing TA @ 7000/+ DA but was not giving facility of staff car to officials. Council of Scientific & Industrial Research and Indian Council of Medical Research were allowing TA @ 3200 + DA. Ministry of Earth Sciences after clarifications from DoE was allowing TA @ 3200+DA to Scientist 'G'. (Annexure R-7).
17. That DoE was requested on 17th February 2017 to clarify if said directives of para 2 of OM No.21(2)/2016-E.II (B) dated 19.08.2016 about dynamic ACP & NFU are applicable to Scientists promoted under MFCS or not. (Annexure R-8).
18. That DoE on 21.9.2017 vide ID No.21/2/2016-E.II (B) (Annexure A-8) of O.A.) decided to extend the facility of the use of official car for journeys from residence to office and back in terms of DoE's OM dated 28th January 1994 OR in lieu of staff car, Transport Allowance at the rate of Rs.15,750/- per month plus dearness allowance thereon to Scientists 'G' promoted under Flexible Complementing Scheme (FCS) in Senior Administrative Grade (SAG) drawing pay in Pay Level 14 and made it admissible with effect from 1st September 2017.
19. That thus in view of the clarifications by DoE and the audit observations, this Department decided to take appropriate action for payment /recovery wherever required.
20. That on 20.12.2017, a list was prepared of those Officials against whom the excess payment was made from Sep 2008 to Aug 2017 in lieu of the overpayment of transport allowance. The list included the names of Scientists & Statistical Advisors either retired, relieved or in service. However, the list had some flaws and the same was rectified upon checking relevant records on 04.01.2018. A total of 20 Officials were listed against whom the excess payment was made from 15 O.A. No.2944/2022 Item No.43 Sep 2008 to Aug 2017 in lieu of the overpayment of transport allowance (Annexure A-9 of O.A.)"
17. This O.A. is for a very limited relief. The respondents are at liberty to decide and declare the post of Scientist 'G' equivalent to the rank of Joint Secretary or to amend the Recruitment Rules; the same is also not within the purview of the Tribunal. The O.M. dated 31.12.2021, indicating recovery of overpayment of TA amounting to Rs.4,06,467/- from the applicant, has to be viewed in the light of the orders passed by the Tribunal and the judgments of Hon'ble High Court, which have clearly held that no recovery of TA can be made against the very fact that the amount paid to the applicant is on the basis of any misrepresentation or fraud on her part.
18. The respondents have looked at only the limited situations, as indicated in their O.M. dated 02.03.2016, whereas the Hon'ble High Court of Delhi in Union of India & another v. J S Sharma (supra) have dealt with the case of similarly situated officers, who were 16 O.A. No.2944/2022 Item No.43 granted Grade Pay of Rs.10000/- under Non- Functional Upgradation Scheme and relying upon the decision of Hon'ble Supreme Court in Chandi Prasad Uniyal & others v. State of Uttarakhand & others (2012) 8 SCC 417, it was held as under:-
"8. This court notices that the case, however, was with relation to wrong / irregular pay fixation whereas in the present case the pay had already been fixed and the monies were paid to the Grade Pay Officers without any misrepresentation on fraud played by them. This court further notices that the case further involved a specific service condition that read "In the condition of irregular / wrong pay fixation, the institution shall be responsible for recovery of the amount received in excess from the salary/pension". The Supreme Court had held that the said condition bound the parties therein. However, no such condition has been pleaded or relied on in the present case.
9. Furthermore, this court is of the opinion that the case of the grade pay officers falls in the exceptional category - which exception even the Chandi Prasad Uniyal case recognized the existence of - that would have the benefit of the ratio of Syed Abdul Qadir (supra):
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a 17 O.A. No.2944/2022 Item No.43 particular interpretation of rule/order, which is subsequently found to be erroneous.
"58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248] , Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara (Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar wpc 5555.13 Page 7 [(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National Bank v. Manjeet Singh [(2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16] and Bihar SEB v. Bijay Bhadur [(2000) 10 SCC 99 : 2000 SCC (L&S) 394]."18 O.A. No.2944/2022
Item No.43 Similar view has been taken in other relied upon orders/judgments of this Tribunal and Hon'ble High Court.
19. Apart from the technicality that the applicant does not fall in any of the situations enlisted in O.M. dated 02.03.2016, the respondents have obviously not considered the fundamental premise of law laid down by the Hon'ble Apex Court that the payments, erroneously made by the employer in excess of entitlement, cannot be recovered.
20. It is also evident that such TA was permitted to be drawn by the respondents and was never objected to till the audit team itself has proved that there was no irregularity on part of the applicant to draw the TA. In the counter affidavit, this aspect has been accepted. I have also noticed that the efforts were made repeatedly by the respondents to seek clarifications and recommend the case of the applicant for waiving off to DoE and DoPT in terms of O.M. dated 02.03.2016. Going by the aforementioned judgments and the settled 19 O.A. No.2944/2022 Item No.43 law, the recovery of TA provided to the applicant is improper and impermissible.
21. Accordingly, the O.A. is allowed to the limited relief of recovery of excess amount of TA. The impugned order dated 31.12.2021 is quashed and set aside and the respondents are directed not to recover any amount towards TA provided to the applicant for the period from July, 2013 to August, 2017 and also to refund the amount already recovered from her, within a period of three months from the date of receipt of a copy of this order.
There shall be no order as to costs.
( Mohd. Jamshed ) Member (A) /sunil/