Central Administrative Tribunal - Cuttack
R K Pattnaik vs D/O Post on 30 June, 2022
1 O.A.Nos. 260/00216 of 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.Nos. 260/00216 of 2018
Reserved on 22.06.2022 Pronounced on 30.06.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Ramesh Kumar Pattnaik, aged about 58 years, S/O
Rahas Bihari Patnaik, of Vill-Kuahara PO-Jaganath
Prasad, Via-Khandapadagarh Dist-Nayagarh, at present
working as GDSMD/MC, Baunsiapada BO, Via-Itamati,
Dist-Nayagarh
..... Applicant
For the Applicant : Mr. T.Rath, Counsel
-Versus-
1. Union of India represented through its Secretary
Department of Posts, Dak Bhawan, New Delhi-110001.
2. Chief PMG, Odisha Circle, At/Po-Bhubaneswar GPO-
751001, Dist-Khurdha.
3 Director of Accounts Postal, Mahanadi Vihar, Cuttack -
4.
4. Senior Supdt. of Post offices, Puri Division,
At/PO/Dist-Puri-752001.
..... Respondents
For the Respondents: Mr. G.R.Verma, Counsel
2 O.A.Nos. 260/00216 of 2018
ORDER
Swarup Kumar Mishra, Member (J):
The case of the applicant in nutshell is that while he was working as GDSMD/MC, Baunsiapada BO under Itamati SO in Time Related Continuity Allowance (in short, TRCA) at the slab Rs. 1740-30-2640/- as on 31.12.2005, revision to TRCA was made vide DG (Posts) O.M. dated 09.10.2009 (Annexure-A/1) and, according to him, as per this revision his TRCA was correctly replaced in the revised TRCA slab of Rs. 4220-75- 6470/- and he was disbursed 40% of the arrears by 31.03.2009 and rest 60% was paid subsequently after the stipulated date for verification of correctness of fixation of TRCA. However, his TRCA was reduced to the slab of Rs. 3330-60-5130 vide impugned order dated 08.11.2011 under Annexure-A/5 and respondents started recovery from his TRCA @ Rs. 1000/- per month w.e.f. June 2012. He had challenged the said action of the respondents before this Bench in O.A. No. 197/2014 and the said O.A. was disposed of on 27.03.2014, in compliance of which, the respondents considered the representation but rejected the same under Annexure-A/12 dated 12.09.2017. Hence, he has filed the second O.A. praying inter alia as under:
"(a) To quash the order contained in Annexure-A/5 & Annexure-A/12.
(b) To respondents may be directed to restore the TRCA of the applicant in the TRCA slab of Rs. 4220-75-6470/- and refund the amount already recovered.3 O.A.Nos. 260/00216 of 2018
(c) Grant the benefit of judgment rendered in the case of "State of Punjab and others etc. V. Rafiq Masih (White Washer) etc in the case of (2015 AIR SCW 501) and direct for refund the amount already recovered from the applicant.
(d)And pass appropriate orders as may be deemed fit and proper..........."
2. Respondents filed their counter opposing the case of the applicant inter alia stating therein that whatever action was taken which is the subject matter of challenge in this O.A. was in accordance with the Directorate letter dated 09.10.2009 (Annexure-R/1) wherein it was instructed to fix the TRCA of all GDS with reference to their existing workload as on 01.01.2006 and cent percent verification of fixation of TRCA to be carried out by the Circle Post Account Office. In compliance of the instruction of the Directorate TRCA of the employees concerned were fixed and arrears paid upon furnishing undertaking by the employee concerned. Thereafter, verification of workload of the concerned GDS of the BOs was undertaken and on strict compliance of the instructions, the excess payments made to the GDSs were sought to be recovered from them. In the instant case, the workload of the applicant was found to be 1 hour 34 minutes whereas his TRCA was fixed for a GDS employee whose work load is 3 hrs 45 minutes. Hence, on calculation, it was determined that an amount of Rs. 9824/- was paid to the applicant in excess between 01.01.2006 to 30.09.2009, which was sought to be recovered as per letter 4 O.A.Nos. 260/00216 of 2018 dated 08.11.2011 (A/5). The refixation and recovery of the excess payment was ordered strictly in accordance with the rules. The representation of the applicant was duly considered with reference to the instruction discussed above and having found no illegality in the decision, the representation of the applicant was rejected and reason of rejection was communicated to him. Accordingly, respondents have prayed that there being no injustice caused to the applicant in the decision making process, this O.A. is liable to be dismissed.
3. The applicant has also filed rejoinder, the stand therein would be discussed while dealing with his argument infra.
4. According to the Ld. Counsel for the applicant, the impugned order reducing the TRCA and recovering the amount alleged to have been paid in excess, is not legally sustainable because the applicant was drawing TRCA in the pre-revised TRCA slab of Rs. 1740-30-2640/- since 01.01.1996 corresponding to existing workload of more than 3 hrs 45 minutes. On revision, his TRCA was rightly fixed at Rs. 4220-75-6470/-. As per D.G. Post letter dated 04.01.2010 (A/4), the revised TRCA for GDS working as on 31.12.2005 will be in the replacement slabs only. The CPMG(O), Respondent No.2, in his D.O. letter dated 17.05.2012 clarified that in respect of GDS officials engaged up to 31.12.2005, their TRCA shall be fixed in the corresponding stage w.e.f. 01.01.2006 and for that no statistical data is required to be collected. It has been stated that the statistics collected 5 O.A.Nos. 260/00216 of 2018 through SDPI for creation of additional post of GDSMD, Jagannathprasad BO whereas the said statistics was taken for payment of the TRCA. The statistic so collected was meant for creation of additional post of GDS MD which has no bearing about the workload of the applicant and the same has been arbitrarily utilized to refix the TRCA in lower slab corresponding to pre-revised TRCA slab having workload of less than 3 hours and 45 minutes instead of entitled TRCA slab and directed recovery in violation of the statutory provisions. The respondents misinterpreted the instruction to the disadvantage of the applicant and based on the statistics collected during March, 2005 for creation of additional post was utilized against the applicant and accordingly the TRCA was reduced, which is bad in law. The next submission of the Ld. Counsel for the applicant is that all over the country, except Mayurbhanj and Puri Division under Odisha Circle, followed the procedure of fixation of revised TRCA of GDSs engaged prior to 01.01.2006 by replacing their revised TRCA slab corresponding to pre- revised TRCA slab as stipulated in para 2.2 of Annexure-A/1 but the applicant was debarred his entitled TRCS. Last but not the least, it has been submitted that the applicant being a low paid employee, recovery would cause him immense financial hardship and, therefore, as per the DoP&T O.M. dated 2.3.2016, which was issued in compliance of the order of the Hon'ble Apex Court in the State of Punjab & Ors. Vs. Rafiq Masih (White Washer) CA No. 11527 of 2014 (Arising out of SLP(C) No. 11684 of 2012), 6 O.A.Nos. 260/00216 of 2018 recovery is bad in law. Accordingly, it has been submitted by the Ld. Counsel for the applicant that since miscarriage of justice was caused to the applicant in the decision making process of the matter, the Tribunal may interfere and grant the relief as prayed for in the O.A.
5. On the other hand, Ld. Counsel for the respondents drew our attention to the instruction issued by the respondents from time to time based on which after making a thorough investigation on workload of the applicant when it was found that the TRCA allowed to the applicant based on the workload is not correct, the same was rectified and as per the undertaking furnished by the applicant recovery of the excess payment made, to which he was not entitled to, was ordered to be recovered. Insofar as workload is concerned the department is the best authority to decide as per the strength of the work and, therefore, judicial intervention in such matter is not warranted. There being no injustice in the decision making process of the matter and the entire action was taken strictly in accordance with the instruction and workload the scope of judicial interference is not required. Accordingly, he has prayed for dismissal of the O.A.
6. The submission of the rival parties was considered and perused the records.
7. It may be recorded that the work, hour of work, manpower required, is the prerogative of the authority concerned manning the department and the court and Tribunal is not equipped to decide and determine the same. 7 O.A.Nos. 260/00216 of 2018 The judicial interference is limited to the extent of any illegality or miscarriage of justice caused in the decision making process of the matter. In the instant case, according to the respondents, the reduction of TRCA was taken effect on evaluation of statistical data of workload which was found to be 1 hour and 34 minutes. Trite is also the position of law that there should not be any discrimination while payment of wages. Mandate of constitution does not permit the employer to pay to a section of its employees doing the same work or a work of a similar nature lesser pay to others by applying the principle in different manner. The report of the workload taken by the authority concerned has not been produced by the respondents. The counter is also conspicuously silent relating to the fact that except the Mayurbhanj and Puri Division of Odisha Circle, followed the procedure of the fixation of revised TRCA of GDS engaged prior to 01.01.2006 by replacing the revised TRCA slab corresponding to pre-revised TRCA. It is also seen that the respondents sought to recover the excess payment made between 01.01.2006 to 30.09.2009 vide order dated 08.11.2011 without affording him any opportunity in compliance with the basic principles of natural justice. It is noted that fair play is part of public policy and a guarantee for justice to citizens. In our system of Rule of Law, every social agency conferred with power is required to act fairly so that social action would be just, and there would be furtherance of the well-being of citizens. Further, natural justice generally require that persons liable to be directly 8 O.A.Nos. 260/00216 of 2018 affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representation on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they had to meet [K.I. Shephard & Ors. Vs Union of India & Ors, 1988 AIR 686]. It is seen that based on the workload collected during 29.07.2010 for seven days of workload of the year 2005, the TRCA of the applicant has been reduced, which appears to be illegal, arbitrary and irrational and, based on such statistics, reduction of TRCA is not justifiable.
8. The applicant, in the present case, is a low paid GDS employee and, thus, recovery would certainly cause him undue financial hardship, which is contrary to law laid down by the Hon'ble Apex Court in various decision and the leading decision in the case of Rafiq Masih (supra)/DoP&T circular referred to above. In view of the discussions made above, for the ends of justice the following direction is issued.
(a) By following the law and DoP&T order, recovery is declared as bad in law and the respondents are directed the return the recovered amount within a period of 30 days from the date of receipt of this order.9 O.A.Nos. 260/00216 of 2018
(b) The Respondents shall reverify the workload statistics once again to redetermine applicant's TRCA after giving due opportunity to the applicant in this regard. The result of the compliance of the direction as above be communicated to the applicant in a reasoned order within a period of four months of receipt of a copy of this order.
9. In the result, the O.A. is allowed to the extent as above. No costs.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS