Central Administrative Tribunal - Cuttack
K C Adhikari vs Aviation Research Center on 27 April, 2023
2 OS 408 of SOP?
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH No. OA HM of 2017 Present:
Hon'ble Mr.Pramod Kumar Das, Administrative Member Kanbu Charan Adhikari, aged about 64 years, S/o Late Gorachand Adbikari, At/PO-Agrahat, Via-Charbstia, PS. Chaudwar, [District-Cattack, eStation Offeer, Aviation Research Centre, ARC. Charhatia, At/PO-Charatia, [Nstrict -
Cuttack-?S4y284.
w coe ADT ECANE VERSUS L. Union of India, represented through its Cabinet Secretary, Cabinet Secretariat, Department of Defence, New Delhi, Pin-
Tigo), p ACR r secretary, Aviation Research Centre Headquarters, Directorate, General of security, Cabinet Secretariat, East Block-V, R.A Puram, New Delhi-T 10066,
3. DHrector of Accounts, Cabinet f Secretariat, East Block-1-¢, Level-Vill. R.K Puram, New Delhi, 4 Deputy Director (Admini istration), Air Wing Aviation Resear ch Centre (A.R.C), At/PO-Charbatia, District-C uttack FOOLS.
5. Assistant Director (PERS), Alp Wing Aviation Research Centre {A.8.C), AtyPO-Charhada, Nseriet Cuttack-7 50038, ts ww Respondents For the applicant ; MrASwain, counsel Fer the respondents > Mr.B.R. Swain, counsel Heard & reserved on: Pal SOeS Order on: SFO 2633 yy fee si Re Se pee Ros A, it boos bee O RD ER Per Mr. Pramod Kumar Das, AM The applicant has filed the present OA seeking the following reliefs :
"Phe Hon'ble Tribunal may graciously he pleased to quash the arder dated L453. 2017 vide Annexure "Ay 6 and direct to the respondents to refund the armount recovered from the applicant within a stipulated period."
a. The fact in nutshell is thatthe applicant is s retired fre supervisar of Aviation Research Centre, Charbatia, Cuttack and he has led this OA challengimg the order under Annexure A/6 dated ThOS. 2017 with to quash the same and direct the respondents to refund the amount already recovered in pursuance of the said order. According to learned counsel for the applicant the applicant was in ne way respensible for the payment made te him on account of fixation and refinetian af pay, recovery fran his retirement dues after lapse of long time is unwarranted. To buttress and fortify his claim that the recovery fram the retirement dues after such long lapse of time is bad In law, learned counsel for the applicant placed reliance on the decision af Han'ble Apex Court in the case of State of Punjab v Rafiq Masih (white Washer) (Civil Appeal No. 11527 OF 2thi4). The impugned order dated 14.03.2017 reads as under:
"Shri iKanku Charan Adhikeri may please refer to his application dtd. 19/09/2016 on the captianed subjeck The case has been examined by this organization, Shri Kanku Charan Adbikeri, Es Station Officer was granted 2 financial 3 OA 804 of 2OTF upgradation in the scale of Pay Rs. SO00-8000 erroneously which was corrected and issued revised arder granted 2°" Financial upgradation in pay scale of Re 00-0000 in place of pay seale of Rs. 5000-8000. The overpayrient so recevered from retirement gratulty/ieave ancashment fs ag per rule, As such as per existing rales the recoveries made due to aver payment cannot be refit nded.""
Om the ather hand based on the counter stand taken in the cenmter thes learned counsel for the respondents submitted that the applicant refired from Govt. Service on SLOS.2012, An amount of Rs. 50,765 /- was found Sy the Director of Accounts (DACS) to have beer paid to the applicant due to wrong fixation of psy while granting financial upgradation under ACP and the same was recovered from the retirement dues of the applicant. The applicant did net challenge the said recovery and only on 2LO7.21N6 he submitted a representation which was considered and rejected vide order dated 14.03.2017 CAnnesure A/S} Therefore reiterating the factual position as to how there was wrong fixation af the pay of the appheant learned counsel for the respondents submitted that there being no dlegality in the decision making process of the matter, nu Interference in the impuened order is called for, In so far as applirability of Rafiq Masih fsupra} is concerned, learned counse! for the respondent submitted that taking Inte considerstion the law laid down by Han'ble Apex Court, DOPT issued QM relating to recovery on O2.03.2016 and the applicant having retired from service wef SLOS 201g, the decision of Hon'ble Apex Court & OA 404 of ROL?
and DOPT OM referred to above is of no help to the applicant. Hence this OA having no legs to stand is Hable to be dismissed, 4, 'The sum and substance in the rejainder filed by the applicant is that there being no fault or misrepresentation on the part of tie applicant, recovery on alleged wrong fixation of pay hased on observation of DAC note is bad in law. Hence according to the applicant he is entitled to rele? ne clahmed in the OA,
5. Heard b oth sides and perused the recerds. 6 Admittedly the applicant alter introduction of ACP scheme vide DOPT OM dated 09.08.1909 was given P* and 28 financial up-gradation on
3. completion of 12 & 24 years of service. Thereafter, the respondents vide order dated 13.05.2006 indiested that the applicant was only eligile for ane Amancial upgradation Le. the 2° wef 09.08.1999. The applicant had challenged the order dated 12.05.2006 belore this Tribunal ss one of the o~ applicant in OA No. 2802/2006 + batch cases which was disposed of vide arder dated 07.05.2009, The relevant portion af the order is extracted below:
se ULAs is whether the employees been ene fram scale of Rs OSU 1s 2. to Redd SO-toQky'> are enti eek te Ysk Gnencial upgradation ar sit in other werds, whether an PRs 180 widle Asing pay In the higher scale of Rs. uso-1 1800): can be considered as an upgradation and if it is considered. as an upgradation whether they are ontitied ty Is x fnancial upgradation as per the ACP Scheme or set. Farther, the legal question arises in these DAs pa gtes bad te au a fom.
<0 weds, ¢ ae be Mn is whether the app pu canta whe have alresdy retired from service are antitied tu have thelr pensidn revised an the hasis af the two freancial if the arrount he Department : allowed the Pas Rye Shoat Scheme as per arder dated upsrad ations alres dy received by therm ar a Admittedly, as per the B Recruitment Rales various posts in the qartnient iichuding that of Assistant Fire Gticer, fire Qperater ard Pire nervisar Rave heen treate SON rately and an these © pests ¢ have got fiffurent pay scales oe AS CPE et Rules, Be > asi :
ae ralifications, in wh »educat 'onal hand phys sical, aN peveribed ander the | ule as, & yar Rules, the: feumbents equal in rank of Fire Qperatars in Central Gaprernament State Governawat up fo maximum age of 56 belong to the der category and ty the case af five years experience iy the grade easing Pire Sopervisar, the Fire Qnerators with driving Neense autor able repair and haying qual ee ina refresher course is consider ex as the feeder category. Even Chough these pasts ave coming under Graarp C classification, their pay scales were alse a ditter ant and these we have already cansiderad and the Gepartment prioar to implementation of the eromtendations af the 5° CAC had given a financial upgradation to the tof Fire Qperaters by giving an addition of Rs, 10 Nyssa as to fix their "BR SSE (ON ER Hence, those who had completed 12 years armel got Hon on that post have te get a Anancial upgradation. fe *<, whatever sta ated | in the order d dated 8.8.2000 that the pay af those whe have got such mnpal Rs. 100%. is Swed poder RR-Z2U e301} concluding PHnancial apsradation, ifsc, before the introduction oe iy sem QOH veation ¢ of the ACP scheme, such emynleyees who have got such a pramation rather Hmancial upgradation are net entitied for bath the 8 nancial upgesdations on the grourd that they have already received ane pramotion, In the above circumstances, itis to be held that the eniployces who have already received preamotion cannot claim both the Qnsancial upgradations on the basis af the order dated BSL ZOO. In this contest, i is pertinent fagquote hereunder t he point af doubt and clarification thereel against SLNe@. 82 as stipalated in OM. No, 3903487 Eady (ValLiv) dated TO.2.20E a & yg £a ' clerriy indie mat oven in a whaurbig case, the feed er and promotional posts having merged fo wastitute a single level In the Werarchy, the next Hnancial aggradation } heal cadre above the merged levels and if rt ware be given in the rant Alarar re Pp romotion has been alipaed in the past In grastes which stand merged.
fe benored as already clartflerd in ¢ veply te polit of doubt Nod af OM, "lated LOZ2h00, fe means that in rast af merger oft twa scales inte me scale, if is necegsary that the review should be taben up and this is altagetber the ft et ia ~ & OA 404 of 2017 i ay :
cadres reviewed. The clarification further indicates that in the cenarig, kecaing & Hag verarchy the pay shall he fined : he are ovistOns af PR SEU NaN 1) subject fe a miniount Samet of Qs. ga stipudated in comiitien Ne. al ACE Sehemmaf wide BaP, OM. fated 102.2000. Hence, this Trial ts of the view that the action by che Department ay per the order i TES2006 fs fustifielle and tse Departsient have got a right te review the entive matter afresh and re-fis the pay ay rai Hable & £0 2 eae af the een Raving regard te the fact that Yo The iaars fribumal che carder fanvahat Beach has eile the 3 erder of the fun vahatl | Barnch wes 2 t to oe gatice of Sia 3 in OG. wherein the dan proposed to be initiated. That ae are ours a the vinlation of the principles of natura . However, ihe «i dues not suffe fre ab ys, ural iu Ustice BS Ory eee Soy has ae uy eC: ay geaqyhe ge Racy. ye dey anes Se eee one : sf natural fastice carmog be Qetendad ta ries who had got the benefits by virtue of the issaed by the Repartmant oo the uEpe sted : PoPaT OM, No 3584/1 /97-Este(D} dated ASS and subsequently, or receipt of clarlicat on from DoP& Fo che sare Dep actinant rend owed the binelits promotion whisk they had BEET ranted from Bre 'Up eretae ee re Supervisor from scale of Bs.Q30+05 VESO-1SO0%- and in Chat event their pay was Jaunder the praviaton ar FR 2: 20a 1} subject is a minimum benefic af Rs. 100s. fF so, the artes proposed by fhe Respendents Department by theo are der dated 128.2006 Is justifiable arul we sen na ground te interfere with Uret action. ne ETE, an the principles inid by the Apex eel aa at ance a Saanckd benefit has been granted by Nee Departnent, (fis mat proper fe ore der vecouery oF such amount after laps af tine as by that recovery, | led ar proposed from the enplayees cnncernedt Ww could be pat ; frannial burden, we are af the view that recovery of amount ot excess, Y any, al jready received by any of the applicants en the basis so rhe ander dated BE. 2000 should not beeffected, but-the other benesNs and/or determined only on the basis of a4 the ~ obser saitatis ene ' gaorder,
42. The further question te be considered is whethe ythe retired arpployens are uot entitled to ~evision of cieir pay and ather pensiagnary benefits on the basis af the order dated Q.6.2000 er nol. 'This e paint can he fapked into by the Deportiment on the -- sofa Share ef ndings entered by this Tribunal. ¢ any Penh vad apglicant i er ant of Ris SOS ary honetits, § be sp Hved « at ary : abe. within tyres rant the yen HOG nestion of merger of pay scale of ie : Bre § Supers: ewe find he s matter with the Binance : yay oof Fire Supervisars to said preposal fas been hurraad dover. Having regard gets arn? cireumnstances of the case, the point af Dacht s that one tie [te Peon had Deparhsent recommending re Rs SRUUMGSOL-, but he tu the totality af the f 22 pied ot ps oe a om ¢ OA 409 of AL?
Nad and clarification thersal (2 ' cannot he brushed aside, Therefore, is the Gimess of things, we wad al a St 3 ghserve thar though dee action af the Respondents appears to be in consonance with the clarification against Doubt NoS? af che QM. dates! 102.2000, yet the Respondents have not erodoced any record ar made any averrment that h wes inescapable ty stain both feeder and pramotic pnal gyi des as Evo distinct levels in the wee ¢ an, hierarchy bn the same scale of pay, thereby making a provision for allowing promotion toa highs past in the Sane bay scale, >» tn this view of the nutter, we direct the Reus t-Bepart Me the cadre structure af both ml x within 2 period ibe Bov verned by plete a the © bre BR Yfo coy plete the § Sane within 'the period stiptda' a d abor «, the re ty shall be fixed on che erring afflears in that behalf oe . > ¥. s, _ aN eye tS. With rhe above : "rations ard directa, 2 are re diaposed af feaving he parties fo bear their respective te rr ore oo we en ag eed wee ee we fo K The applicant then challenged the said order of this Tribunal bry (ling WP (C} No 12552/8009 and Non'ble Nigh Court vide order dated ~ ZLOB.2018 disposed of the sald writ petition with folowing observations:
After rear s and analysing the questions raised, uliuately the learned a Qn nes su-Departnent to review the cadre Sstractare. af be oth Bre Speracor and F Sagerviser and cornplete the pracess with) ony kate of order and that the applicants spall be | > aoverned yt the at wutcome & ah su wh review, in the event of fadure fo review the said cadre structure and ta complete the same within the period stigulated above, the {lability sha . ve Axed on the erring fees rs bi that behalf.
Lear ned counsel fpr the petitioner subavts that an attempt is being made te Scaver Corral aMouns from he pet loner alleging excess 5 Rayan. Since red Tribunal has already directex dts review the matter with ¢ 'egard es Sy wctare sand the re review bas not yet been made, we direct that e shall nemain stay ad yassed Try the reviewing S governed wy t the Phe writ petitian stands disposed of
7. The respondents in carypliance of order af this Tribunal, had carried out the restructuring vide orders dated 04.11.2010 dated 3 2010 and consequential order was issued vide sotificatien dated 14.06.2011 which oe O8 AOA of GV?
was duly communicated to all units and concerned individuals, Subsequent to restructuring order dated 31.12.2010 it was directed that the past of Fire Supervisor In the grade pay of Rg 1900/- In PB 1 is upgraded to the Grade Pay of Rs. 2000/- in PB -i and renamed as Leading Fireman. [tis the stand of the applicant that the said order was not communicated to him and therefore the respondents could not have effected recovery. It is seen that the said order was issued and contents of the said arder was ordered to be brought to the natice of all concerned individuals. The applicant who was in service at that Hme, could not have taken the stand that there fs na separate communication to him. Therefore, we are not in agreement with the stand talen by the learned counsel for the applicant that the applicant was prejudiced because of non communicalion o the said order to him. 8 So faras recovery is concerned, itis worthwhile to quote the relevant portion of the decision of the Hon'hle Apex Court in the case of State of Punjab & Others vs Rafiq Masib { White Washer) & others, 2015 (4) SCC 334 which reads as under:
"12. Ht ig not possible te postalate all situations af hardship, which would govern employees on the issuc of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as if may, based on the decisions referred to herein above, we may, 85 a ready reference, summarise the following few situations, wherein recoveries by the employers, would be imypermissible in law:
9 OA 404 of 2017 G) Recovery from employees belonging fo Class-Ill and Class-IV service (or Group 'C and Group 'D' service}.
(i) Recovery from retired eniployees, or employees who are due to retire within one year, of the arder of recovery.
{iif} Recovery from employees, when the excess payment has been made for a periad 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."
On the basis of the aforesaid judgment, the DoP&T had issued the Giice Memorandum No. L/0g/2015-Estt. (Pay) dated 02.03.2010 providing therein as under:
"4. The Hon'ble Supreme Court while observing that itis 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 entidement has summarized the following few situations, wherein recoveries by the emplayers weald be ingpermissiiie in law {i} Recovery from employees belunging to Class- {il and ClassIV service (or Groap 'C and Group 'DY' service}.
Af} Recovery fram retired employees, ar employees who are due to retire within ane year, of the order of recovery, ;
EO ' O& 4Ot oF BIE?
isseed.
-ases where an employer has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required fe work against an inferior post.
(iv} Recovery Int , fy) In any other case, where the Court arrives al rhe conclusion, Ural recovery if pradde frany the employee, would be iniquitous or harsh or arbitrary to such an extent, 85 would far eupweigh the equitable balance of the employer's right fo recover.
in 5 The matter has, consequently, been - examined in consuftation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wronefal / Excess payments made fa Government servants in accordance with above decision of the Hon'ble Supreme Court mA Ned bie? of 2014 (arising out of SLP (0) Noises of 2012) in State af Punjab and others etc vs Rafiq Masih (White Washer} etc. However, wherever the waiver af recovery in the above- mentioned situations is consid ered, the same may be allowed with the express appreval of Department af Expenditure i terms af this Department's OM Nov gf26/2011-Estt (Pay-D dated 6th February, 2014"
The applicant belongs to Group €, the recovery is sought to be mad& gor the excess payment made to him on grant of ACP in the year 1999 which ig in excess of five years perind and the applicant has retired in the meantime. Thus the sub clause (2), G2 and THO) of para 12 of Hon'ble Apex it DA $09 of SEY Court In Rafiq Masih {supra} and sub clause {1}, (0) of para 4 of the DOPT meme is applicable to the applicant.
@ In the instant case, admittedly, the applicant was granted the < financial upgradation under ACP vide order dated 08.08.2000 wed 9.08,1909 from Rs, 4000-6000/- to Rs. SO0U-D000/-, The fixation of pay ander 26! ACP was found to be erroneous and, accordingly, the pay of the applicant was refixed and the differential smount ¢ Wf excess payrent made was recovered from the retirement dues of the applicant, who retired fram the gavernment service on reaching the age of superannuation want VL.0G.2012. The applicant did not challenge the refixation of his pay and consequential fixation of pension. His grievance is that shice errencaus fixation of pay and payment, recovery of the differential amount for such erroneous fixation of pay made long back from his retirement dues caused him great financial hardship and, therefore, the recovery being opposed to the law laid down by the Hon'ble Apex Court in the Rafiq Masth and DaP&T GM {supra}. The contention of the Ld Counsel for the respondents ts that the DoP&T issued the OM im pursuance of the decisions in the case of Rafiq Masih on O2.03.2018 whereas the applicant retired from service on 3.082012, thus, accerding to him, the Dop&Y circular having ne retrospective effect has na application in the present case . TRis was countered by the Ld, Counsel for the applicant by stating that the decision wen OA AGA af 2OVF rendered in the case of Rafiq Masih has te be applied in the present case as the applicant belongs to Oreup: 'cc employes, the excess payment relates fc five years before when the recovery was sought to be made from the applicant and, that, the applicant was in no way PTespe ansible for such excess x » payment, This apart nas heen contended that even though oP RT circular does not specifically state that h has retrospective Implementation, itis presumed to have ratraspective application as the same was issued 1s pursuance of the decision of the Hon'ble Apex Court rendered in Rafiq Masih on {RL IOL. Further, it was contended that delay in issuance of the circular by the DoPE&T cannat wash out the decision rendered by the Hon'ble Apes Court in Rafiq Masih because the said decision was int judgment in rem at xd the law declared by the Supreme Court shall be binding en all courts within the territory of india as p yr the mandate enshrined under Article 14 1, Comstination of india. Therefare, the recovery fram the retirement dues far an erroneans payment made to the applicant due to wrong fization of pay under ACP granted to him vide arder dated OB.O8.2O00 CAST) is bay oid ta be held Hiiggal and ar bitrary, Pin force on the submission of the La Counsel for the applicant that 1 the NoeSley cirenfar issued subsequent bo, the decision af the Hon'ble Apex Court direction for dealing with issue of wrongial excess payments Nese Je tg Cavernment servants In accor edance with abows decision of the Hon'hic 43 DA 404 of 2017 Apex Court. Nence a delay in issuance of such circular cannot wipe cut ~ when the Hon'ble Apex Court have specifically held the conditions under which recoveries would be tnpermissibie. More so, when the DoT cironar was issred in pursnance of the said decision even ifin the circular it has not been specifically stated that the same has no retrospective application, the said circular is bound to be made applicable in the instant ease fa view of the above discussion amd the arguments advanced to the above effect by the learned Counsel for the Respendent is bound te be overruled and is hereby overruled. Resultantly, the recovery of Rs. 50,765 /- from the retirement dues towards the di ferential amount drawn due to erroneous fixation of 2°! MACP granted to the applicant long back is held te be not sustainable and by appiving the law laid down by the Hon'ble Apex Court in the case of Rafiq Masih {supra}, the bnpugsned order dated
14.OR017 (Anns.A/6) is hereby quashed and the Respondents are directed to rehind the same amount of Rs. $0,765/- to the Applicant within a period af 30 (thirty) days trem the date of receipt of a copy of this order.
18. In the result, this GA stands allawed ta the extent stated above. There shall be nc order as to casts, ~ }ERAMOD KUMAR DAS) MEM BER R{A} fosk}