Central Administrative Tribunal - Delhi
Pardeep Kumar vs Iccr on 11 April, 2023
1
OA No.3749 of 2022
Court No.6 (item No.26)
Central Administrative Tribunal
Principal Bench; New Delhi
OA No.3749/2022
Reserved on: 28.03.2023
Pronouncement on: 11 .4. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Pradeep Kumar
Presently working as Programme Director
S/o Sh. Bhagat Ram, (aged about 56 years)
R/o B-220, Rohini Heights
Pocket GH-IV, Sector -29,
Rohini, Delhi-110042
--Applicant.
(Through Advocate: Sh. Ashwani Kr. Dhatwatia)
Versus
1. Indian Council for Cultural Relations
Through its Director General
Azad Bhawan, IP Estate
New Delhi-110002.
2. Director (Admn.)
Indian Council for Cultural Relations
Azad Bhawan, IP Estate
New Delhi-110002.
3. Ministry of External Affairs
Through Secretary,
Jawaharlal Nehru Bhawan
23-D, Janpath Road,
Rajpath Area, Central Secretariat
New Delhi-110011. -Respondents
(Through Advocate:Sh. M.K. Bharwaj )
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OA No.3749 of 2022
Court No.6 (item No.26)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present Original application has been preferred by the applicant against the Order No.289 dated 29.11.2022 passed by respondent no.2 ordering recovery of USD 21,719.8/- (INR 13,04,994/-) from the salary of the applicant on account of alleged excess payment to the applicant while he was posted as Programme Assistant in Cultural Centre at Emabssy of India , Bangkok during the period 2011-2016.
2. The matrix of the facts relevant to the issues raised in the OA are that the applicant was originally appointed as Library Assistant by Respondent No.2 in October 1985 on Ad hoc basis and he was regularized on the same post after one year. In July 2011, Respodent No.1 decided to depute the applicant as Assistant Programme Officer (APO) ICCR to Indian Embassy at Bangkok. The applicant joined at the ICCR centre at Indian Embassy, Bangkok 16.8. 2011 in the pay scale of PB2 Rs 9300-38800+4600 Grade Pay applicable to assistant level ( group B) officials. The LetterNo. F.No. NCC/Official /Bangkok /2011-12 dated 27.6.2011 from Respondent No.1 stated that the 3 OA No.3749 of 2022 Court No.6 (item No.26) applicant was entitled for Foreign Allowance and other entitlement as per IFS (PLCA) rules. While posted at the Embassy, Bangkok the applicant was promoted to the rank of Programme Officer (equivalent to Section officer) in February 2015. He was granted extension till 28th June 2016 at Bangkok on his own request on account of his childrens' education. He was further promoted to the rank of Programme Director ( equivalent to under Secretary) and subsequently posted at Dhaka and presently working as a Group A officer posted in Delhi.
3. The India Audit Office of CAG at Kuala Lumpur vide its Audit report dated 23.2.2018 detected an excess payment of US$ 21,719.8 (Equivalent to INR 13,04,996/-) over and above the applicant's entitlement of Assistant Level officer. The Audit report pointed out that Respondent No.1 in consultation with the Ministry of External Affairs decided in April 2013 that henceforth the India-based teachers drawing Grade Pay Rs.4,600/- would be treated as Assistant Level and decision had already been implemented since 2013. It further stated in the report that the present applicant was appointed as Programme Assistant, ICC, Bangkok equivalent to Non- 4 OA No.3749 of 2022
Court No.6 (item No.26) representation Gazetted Officer in the Mission. Though assistant Level Officials were entitled US$ 1845 as Foreign Allowance/ Compensatory Allowance (FA/CA), the Embassy allowed the applicant USD 2166 as FA/CA. Based on the said Audit Report, Respondent no.1 vide letter dated 21.01.2021 stated that the Competent Authority had decided to recover excess FA @ 321 US$ per month for 3 years 10 months and 14 days , totaling US$ 21, 719.8 from the applicant. The applicant vide his representation dated 16.11.2022 stated that he was entitled for higher FA as he was posted as Attache by Respondent No.1 and hence no recovery was due from him. Vide office order dated 29.11.2022( impugned order), Respondent No. issused recovery of the said amount in 43 installments @Rs30,000/ per month and remaining amount of Rs14,996/- to be recovered through the 44th installment. Being aggrieved, the applicant has filed the present Original application seeking the following relief:-
"(a) Quash the office order No.289 dated 29.11.2022 passed by respondent No.2 thereby allowing the recovery of Rs. 13,04,996/- from the salary of the applicant in 43 installments @ Rs.
30,000/- p.m. and remaining amount of Rs. 14,996/- through 44 installments w.e.f. December, 2022.
5OA No.3749 of 2022 Court No.6 (item No.26)
(b) Pass any other or further orders/ directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.
(c) Allow cost of the application in favour of the applicant."
4. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his additional affidavit to the same.
5. The applicant in his OA and the learned counsel on his behalf have forwarded the following grounds for seeking the reliefs as prayed above:-
(i) The applicant sought clarification from Respodent No.1 regarding his diplomatic status as Non-gazetted attache vide his mail dated 19th July 2011. Respondent No. 1 vide their e-mail date 19.7.2011 clarified in the following manner:-
In this connection, please refer Dg. ICCR Fax message dated 31. March (copy enclosed ) in which conveyed that the matter is under review and the status quo that prevailed before issued of instructions on 1st March, 2011 may be maintained.
The Foreign Allowance/ Compensation Allowance(FA/CA) applicable to India-based teachers ( 6 OA No.3749 of 2022 Court No.6 (item No.26) same as Assistant Programme Officers ) was that allowed to Attaches in Embassies. Hence, the FA/CA granted to the applicant was as per the decision of Respondent No.1. It was not on the basis of the request of the applicant that he was given a particular amount as FA/CA admissible to Attaches ( in the rank of Gazetted Officers) in Indian embassies. It was granted by Respondents by their own volition.
ii) The Impugned order dated 29.11.2022 is passed in a mechanical manner without going into the facts and circumstances of the case and the series of communications between the applicant, Indian embassy at Bangkok and Respondent no.1.
(iii) The recovery of Rs Rs30,000/ month from applicant's monthly salary is too harsh as it amounts to 40% of his salary.
(iv) The impugned order is in violation of the settled law laid down by the Apex court in State of Punjab vs Rafiq Mashie 2015 (4) SCC 334 wherein it was held employer can make recovery only in cases where the excess amount has been paid to the employee for a period of five years, before the order of recovery is issued. To be specific, the Apex court delineated the 7 OA No.3749 of 2022 Court No.6 (item No.26) situations wherein recoveries by the employers would be impermissible in Law:-
"18. 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 hereinabove, we may, as a ready reference summarise the following few situations, wherein recoveries by the employees would be impermissible in law:
i) Recovery from the employees belonging to Class-III & Class-IV service (or Group-C or Group-D service)
ii) ii) Recovery from the retired employees, or the employees who are due to retire within one year of the order of recovery
iii) iii) Recovery from the 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."
In the instant case, the alleged excess payment was done during 2011-2014 and the recovery order was issued in November , 2022, after more than five years the last excess payment. Secondly, as per Rafiq Masih 8 OA No.3749 of 2022 Court No.6 (item No.26) Case (Supra) the Apex court, stated that when an the employee was wrongly asked to perform the duties of higher post, and if he is paid higher amount, the excess payment shall not be recovered from the employee. In the instant case, the applicant was designated as Attache ( A gazette rank post) by Respondent No.1 and to draw FA/CA allowed to attaches . Hence, as per the settled law by the Apex Court in Rafiq Masih( supra) case, the respondents could not have ordered the recovery from the applicant.
6. The learned counsel for the Respondents assailed the stand taken by the applicant and the learned counsel on his behalf. He drew our attention to the counter affidavit filed by the respondents wherein it has been clarified that the higher scale of FA/CA at US$ 2166 was allowed to Gazetted Officers and US$ 1845 was allowed to non-gazetted Assistant level officers. The higher FA/CA was wrongly granted by the Respondents and when the audit pointed out, the same was ordered to be recovered. Though the applicant was appointed substantially as an Assistant in the pay scale of PB2 Rs 9300-38800+4600 Grade Pay applicable to assistant level ( group B) officials, he drew 9 OA No.3749 of 2022 Court No.6 (item No.26) FA/CA applicable to Section Officer, a rank higher to Assistants.
7. The learned counsel for the respondents further averred that none of the stipulations in Para 18 of the judgment in Rafiq Masih(supra) case is applicable in the instant case. The period for which excess payment was made include 3 years, 10 months and 14 days. In the Rafiq Mashie case, the Apex court has stated that no recovery is permissible when excess payment had been made for a period in excess of five years, before the order of recovery is issued.
8. The counsel for the respondents further argued that as the applicant was substantially posted as an Assistant in the Cultural centre of ICCR at Bangkok, the other condition that he was wrongly required to discharge duties of a higher post and had been paid accordingly is not satisfied. The pay scale and salary drawn by the applicant was that of an assistant and he also discharged the duties of an assistant. It was only that he drew higher allowance than what was permissible for him against substantially an assistant's post.
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9. The counsel for the respondents further argued that the recovery will not put the applicant into significant hardship. He is currently posted as a Group A officer, drawing the salary applicable to an Under Secretary to Government of India. His monthly salary is Rs.1,32,036/-.He has more than three years left for retirement. Hence, the contention of the counsel for the applicant that the recovery will inflict unbearable hardship on the applicant is not tenable.
10. The learned counsel for the respondents drew attention to the order Dated 8.10.2021 of this Tribunal in OA No 020 /00376 of 2020 of Dr.Raghuvir Prasad Mathur Vs Union of India &ors wherein in a similar case, the recovery of excess payment of transport allowance was held to be legal and in accordance with law and rules. The counsel for the respondents cited the order dated 8.10.2021 in OA No 020 /00376 of 2020 in the case of Dr.Raghuvir Prasad Mathur Vs Union of India &ors, passed by the Coordinate Bench of this Tribunal wherein the judgment of the apex court in Syed Abdul Qadir vs. State of Bihar (SCC pp.491-92, para 59 was cited . It was held by the Apex court in the said Judgment that:
11OA No.3749 of 2022
Court No.6 (item No.26) " 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 the wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order the recovery of the amount paid in excess."
The counsel for the respondent averred that the applicant was working as an assistant in the administrative division of ICCR in Delhi and he had the knowledge that the assistant level officers are entitled at a lower level of allowance than that is applicable to Section Officer Level. Moreover, the excess payment was detected within a short period after the applicant drew the excess payment by the Audit Office of CAG at Kuala Lumpur on 16.2.2016.In view of the action of the respondents, in rectifying the wrong payment within a short period after last payment of such excess payment was legal and as per law.
11. The Counsel for the Respondent also cited judgment of the Apex court in Union Territory of Chandigarh & Ors vs Guru Charan Singh&ors, (2014) 13 SCC 598 wherein it was held that:
"11. In view of the aforestated position, in our opinion, the Tribunal was absolutely right in 12 OA No.3749 of 2022 Court No.6 (item No.26) coming to the conclusion that the pay fixation under the order dated 13th October, 1998 was correct because a mistake was committed in the earlier pay fixation under the order dated 2nd September, 1992.
12. Though a submission had been made on behalf of the respondent that no amount should be recovered from the salary paid to the respondent, the said submission cannot be accepted because if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered. It might also happen that the employer might have to pay some amount to the respondent as a result of some mistake and in such an event, even the appellant might have to pay to the respondent. Be that as it may, upon settlement of the account, whatever amount has to be paid to the respondent employee or to the appellant employer shall be paid and the account shall be adjusted accordingly."
12. I have gone through the records of the case thoroughly and heard the arguments carefully. The contention by the applicant that it was the respondents who granted him the excess payment because Respondent No.1 posted him as attaché (normally a post equivalent to section Officer) and it was not on his request and hence he is not liable for payment of the excess amount of FA/CA paid to him is not tenable at all. The applicant had requested vide e-mail dated 19th July 2011 for his diplomatic status and Respondent No.1 clarified that the matter was under 13 OA No.3749 of 2022
Court No.6 (item No.26) review and the status quo that prevailed before issuance of instructions on 1.3.2011 may be maintained. It implies that the exact perks and allowances in respect of of Non-gazetted officer of assistant level officer i.e. the applicant was not finalized. Because of the correspondences, the applicant cannot take recourse that the excess payment to him as an assistant level officer at Bangkok was not in his knowledge. Secondly, the recovery pertains to the period from 17.8. 2011 to 30.6.2015and it was immediately thereafter was detected by Audit vide their report dated 23.2.2016. Hence, the wrong payment was detected within short period after the last payment and cortrective action was initiated and after giving due opportunity to the applicant the final recovery order was issued on 29.11.2022. Hence , I agree with the contention of the counsel for the respondents that the ratios of judgment of the Apex Court in Syed Abdul Qadir (Supra) and in Union Territory of Chandigarh &ors vs Gurubachan Singh &ors (supra ) are applicable in the instant case.
13. The contention of the counsel for the applicant that condition no.(iii) and (iv) under para 18 of Rafiq Masih judgment are satisfied in the instant case cannot be 14 OA No.3749 of 2022 Court No.6 (item No.26) acceptable. The continuous period for excess payment to the applicant was 3 years 10 months and 14 days prior to the recovery was ordered and hence condition
(iii) as mentioned above is not satisfied. The condition no (iv) is also not satisfied as the applicant was not asked to discharge duties of higher post. He was substantially posted as an Assistant with the pay scales and grade applicable to assistants. The perks and allowance of a government servant follows from the substantive post and the scale of pay plus grade pay. Because some excess amount of FA/CA was allowed to be drawn, which was detected as wrongly paid, it can not be said that the applicant was assigned duties of a higher post( that of a Section Officer) though he was in the rank of a junior cadre.
14. The averment by the counsel for the applicant that the recovery of Rs30,000/- pm will put the applicant in financial hardship is also not tenable. The applicant has been a beneficiary of wrong payment ( excess payment) of FA . This Tribunal in the Dr. Raghuvir Prasad vs Union of India ( Supra) has rightly applied the ratio of judgment of the Apex Court in Mahabir Kishore & ors Vs State of Madhya Pradesh on 31 July, 1989 Equivalent citation; 15 OA No.3749 of 2022 Court No.6 (item No.26) 1990 AIR 313,1989 SCR (3) 596 ; wherein it was held:
"The principle of unjust enrichment requires; first, that the defendant has been 'enriched' by the receipt of a "benefit"; secondly. that this enrichment is "at the expense of the plaintiff"
and thirdly, that the retention of the enrichment be unjust. This justified restitution"
15. In the instant case, the applicant drew excess FA allowances and enjoyed it or rather benefited from it. He is liable to pay the excess amount as ordered by the Respondents vide the impugned order. The applicant is a group A Officer and has three more years to go for retirement. Hence, the recovery order is not unduly harsh.
16. In view of the above, the OA lacks merit and hence it is dismissed. There is no order regarding costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /