Central Administrative Tribunal - Mumbai
Kesho Ghanshyam Tarodekar vs India Meteorological Department New ... on 18 April, 2024
i OA No.2137/2020 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, CAMP AT NAGPUR - QRIGINALAPPLICATION Wo.2137 OF 2020 Dated this Thursday, the 18 day of April, 2024 CORAM : SHRI RAJINDER KASHYAP, MEMBER (A) Keshao Ghanshyam Tarodekar, - S/o Late Ghanshyam Ramkrishna Tarodkar, Age 60 years, Occupation : Pensioner, Rio 298, H.B.Estate, Sonegaon, oe a Nagpur 440 025. | ee ~ Applicant (By Advocate Shri R.K.Shrivastava) VERSUS 1, The Union of India, Through the Secretary, . Ministry of Earth Sciences, Mausam Bhavan, Lodi Road, ; New Delhi 110 003. | BR 2, The Director General, _ India Meteorological Dept., Lodi Road, New Delhi 110 003. 3, The Deputy Director General, Meteorology, Airport, Nagpur 440 025. 4. The Pay and Accounts Officer, India Meteorological Dept. . Shivaji Nagar, Pune 411 005. ~ Respondents (By Advocate Shri P-H.Khobragade) Reserved on 22.02.2024 Pronounced on 18.04.2024 GEOR, cS SS See' 2 | OA No.2137/2020 ORDER
The above OA is filed under Section 19 of the Administrative Tribunals Act, 1985. The following reliefs have been sought:
"@q), To quash and set aside the impugned order dated 28.10.2019 and 18.12.2019 {Annexure A-1 of the OA) to the extent of recovery of Rs.73,079/- has been ordered. g(ii). To. direct the Respondents to refund the recovered, amount of overpayment in view of Hon'ble Supreme Court Judgment.
giii), To grant him interest @12% P.A. on such recovered amount, 8(iv). To grant him all other consequential benefits including the cost of O.A."
3. The OA is filed against the impugned order of the respondents dated 28.10.2019 wherein it has been mentioned that . p the 7° MACP given to the applicant on 01 09.2008 was not in order as he did not complete 30 years of service on 0/11/2012. The pay fixation was done as per the revised date of grant of 3° MACP and the excess paid amount was recovered.
3. The facts of the case in brief are that the applicant was appointed as Observer on 06.11.1982. He was promoted as Senior Observer on 05.03.1988, The post of Senior Observer was merged with new designation as Scientist Assistant. The second financial upgradation under ACP scheme was given to the applicant on NA x oe et 3 OA Na.2137/2020 01.09.2008 which was modified as 06.11.2006. 3" financial upgradation under MACP was given to the applicant with effect from 01.09.2008, On 28.10.2019, the respondent No.4 informed the respondent No.3 that the 3° financial upgradation granted to the applicant with effect from 01.09.2008 was wrong. Applicant retired on superannuation on 31.16.2019. Respondent No.4 in its order dated 18.12.2019 deducted the amount of Rs.73,079/- (Rupees Seventy Three Thousand and Seventy Nine only) from the total gratuity of Rs.14,34,362/- (Rupees Fourteen Lakhs Thirty Four Thousand Three Hundred and Sixty Twe only) and paid the remaining amount of gratuity to the applicant. The ahove recovery was termed as over payment of pay and allowance due to incorrect grant of 3° MACP to the applicant. The applicant represented against the wrongful recovery to the respondents on. various dates j.e, 06.01.2020 (Annexure A-7), 03.02.2020 (Annexure A-8) and 01.06.2020 (marked in OA again as Annexure A-8), no reply was given by.the respondents. The applicant in his representation dated . 01.06.2020, categorically stated that the fixation of pay was checked by PAO, Pune and no discrepancy was observed at that time. He further stated that in view of the judgment of Hon'ble Supreme Court in the matter of Rafiq Masih Vs. Union of India, it Sa nana aaa anne 'Sse' 4 OA No.2137/2020 + has been stated that no recovery of pay should be initiated from the.
pensioner. Therefore, the applicant submitted that the recovery of Rs.73,079/- (Rupees Seventy Three Thousand and Seventy Nine only} may be refunded to him at the earliest. Due to non-receipt of any response from the respondents, the applicant filed this present OA, | 4, The respondents filed their reply on 03.08.2021 and denied sach and every statement, contentions, submissions and allegations and averments made in the application. The respondents submit that the applicant was promoted as Senior Observer on 05.93.1988 (is Snincial upgradation). The applicant as per the brief service particulars and recommendation of Screening Comfnittee's Report forwarded by RMC Nagpur was given 2" financial upgradation under MACP Scheme on 15.10.2010, effective from 01.09.2008 (i.e. date of implementation of MACP Scheme). The same was later recti fied on receipt of recommendation of review screening cormmittee for pre-poning it to 06.11.2006 on completion of 24 years under ACP Scheme of August, 1999 (2% ACP), 5, They further submit that on the basis of brief service particulars and recommendation of DSC forwarded by RMC Nagpur, the applicant was granted 3° Financial upgradation under i Mwy U4 § CHA No.2137/2020, MACP Scheme wet 01.09.2008 vide office order dated :
19.07.2011, instead of 06.11.2012. This 3 Gnancial upgradation was granted before the corrigendum for 3"! financial upgradation issued on 07.10.2011. The applicant was to retire on 31.10.2019.
But he did not completed 30 years of regular service on O1 09,2008 and, hence, wag ineligible for 3° financial upgradation under MACP Scheme wef. 06.11.2012 (on completion of 30 years) instead of 01.09.2008.
6. The respondents contends that the respondent No.3 received a letter from PAO, Pune for recovery due to non-grant of 3° MACP after retirement of applicant. The applicant submitted a representation dated 07.01.2020 which was sent to PAO Pune, the respondent No.4 for consideration. Thereon, PAO Pune replied that, the recovery was correct and as per rules. The OM as mentioned is not applicable in this case as the applicant was holding a Group 'B' (Gaz.) post Le. Meteorologist 'AY, Moreover, as per Rule 71(@2) and (3)() and mule 73Q) of CCS (Pension) Rules, 1972, Government dues which come to fotice subsequently and remain outstanding till the date of retirement of the Government servant shall be adjusted against the arnount of the . « | retirement. A vp ou _--
i €@B» RS te Sat.
&s . See! : A OPPO 2 ec 6 OA No.213 7/2020 7, The case of the applicant was reviewed by DGM, Headquarters and modified MACP order was given on 16.03.2021, The respondents contend that a bonajide mistake can be corrected at any point in time if it is brought to the notice of the authorities. They state that the respondents have given benefit of 3° financial upgradation to the applicant by bonafide mistake and as per this law settled by the Hon'ble Supreme Court, a bonafide mistake can be cniseated at any point in time. They further mentioned that the applicant at the time of submitting pension papers has also been "undertaken to refund the excess paid pension and other retirement benefits if any subsequentlycomes to notice. Therefore, recovering the wrongful payment made from the applicant is just and proper. They have also mentioned that the judgment of Hon'ble of Supreme Court in the matter of State of Punjab & Ors. Vs. Rafiq Masih (White Washer), 2015 (2) SCC 151 decided on 18.12.2014 is not applicable in the matter as the applicant does not belong to that eroup for which the Hon'ble Apex Court has given the judgment.
8. They further states that the applicant is not entitled for any relief whatsoever as claimed in the present Original Application as the applicant has failed to point out any ground whatsoever in his favour in the instant QA and, therefore, the OA is liable to be Ae Awe cent sss: : ec : SN SSS SSE os) OA No.2137/2029 dismissed.
9, The applicant has submitted rejoinder to the reply submitted by the applicant. Applicant contended that he was appointed as Observer on 06.11.1982 and not on 24,04,1992 as stated by the respondents... Applicant stated that the reply given by the respondents is factually 'meorrect as the reply does not contend any number or date of notice given to the applicant for overpayment. Further, the representation dated 07.01.2020 of applicant against the illegal recovery of DCRG also does not contend any mention of | any notice.
10. Applicant further states that the judgment of Hon'ble Siptonie Court in the case of Rafig Masih (supra) iseapplicable in the case of the applicant as the judgment prohibits any recovery of overpayment from retired employee and also when the excess payment has been made for a period in excess of five years before the order of recovery is issued. The above conditions are applicable in the case of the applicant. The applicant states that the Principal Bench of this Tribunal in the case of Balbir Singh Vs. Delhi Transport Corporation Ltd., reported in AISLE 2019 (1) 254 has held that "where a retirement dues were paid over a long period the overpayment cannot be recovered despite undetaking 8 OA No.2137/2020 giving consent for recovery, If any, excess payment is noticed." The applicant claims that the ratio of this order is applicable in his case, it. Heard the learned counsels for the applicant and the respondents,
12. The applicant was appointed as Observer on 06.11.1982. He was given promotion. as Senior Observer on 05,03.1988. On 15.10.2010, second financial upgradation under ACP scheme was given to him with effect from 01.09.2008 which was subsequently modified on 06.11.2006. 3" financial upgradation under MACP was given to the applicant on 19.07.2011 with effect from 01.09.2008. The applicant retired from service on superannuation on 31.16.2019. On 28.10.2019, the respondents found that the third Rnancial upgradation was wrongly given to the applicant wef 01.09.2008 and promoted recovery of Rs.73,079/- (Rupees Seventy 'Three Thousand and Seventy Nine only) from his gratuity which WAS paid t him on 18.12.2019.
13. It would be appropriate to state five situations laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) mn is judgment dated 18.12.2014 "() Recovery from employess belonging to Class-IT] and Class-
TV service Cor Group 'C' and Group 'D' Service}.
| of judgment in the case of Rafiq Masih (supr 9 OA No.2137/2020
(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."
i4. In view of above, the case of the applicant is squarely covered under point (ii) of para 13 above wherein it has been stated that "recovery from the retired employees, or employees who are due ta 3 retire within one year from the order of recovery would be impermissible in law. Further, the 3" financial upgradation under MACP was given to the applicant on 13.07.2011 with effect from 01.09.2008, whereas, the respondents on 28.10.2019 found thar 3"
2financial upgradation under MACP has been wrongly given to the applicant. "The applicant continued to be paid higher salary as 38 financial upgradation gi ' | upgradation given to him on above-mentioned dates. Para (if)
a) under para 13 above is also applicable in this case.
10 OA No.2137/2020
13. In view of above, the following order is issued ;
(a). The orders dated. 28.10.2019 and 18.12.2019 (Annexure A-]) is quashed and set aside to the extent of recovery of Rs.73,079/- (Rupees Seventy Three Thousand and Seventy Nine only).
ib}. The respondents are directed to refund the recovered amount within eight weeks from the date of receipt of a certified copy of this order.
{c}. While calculating and making repayment, the respondents shall pay interest on the recovered amount of Rs.73,079/- (Rupees Seventy Three Thousand and Seventy Nine only) at the rate as applicable to the GPF.
{d). There shall be no order as to costs.
(Rajinder Kashyap) Member (A) kmg* OC memewnieieec