Central Administrative Tribunal - Delhi
Smt. Shashi Gupta vs Govt. Of Nct Of Delhi on 28 August, 2015
Central Administrative Tribunal Principal Bench OA No. 4244/2013 Reserved on: 18.05.2015 Pronounced on: 28.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. P.K. Basu, Member (A) Smt. Shashi Gupta, W/o Sh. R.P. Singal, R/o GH-4/325, Meera Apartments, Paschim Vihar, New Delhi-63 Applicant (By Advocate: Shri Yogesh Sharma) VERSUS 1. Govt. of NCT of Delhi, Through the Chief Secretary, Delhi Secretariat, IP Estate, New Delhi 2. Director of Education, Govt. of NCT of Delhi, Civil Lines, Old Secretariat, Delhi-110054 3. Dy. Director of Education, Govt. of NCT of Delhi, District West-B, G-Block, Vikaspuri, New Delhi-18 4. The Controller of Accounts, Principal Accounts Officer, GNCT of Delhi, IP Estate, A-Block, Vikas Bhawan, New Delhi 5. The Pay and Accounts Officer-18, DFS Building, Prasad Nagar, New Delhi-110018 -Respondents (By Advocate: Shri K.M. Singh) ORDER By Honble Mr. P.K. Basu, Member (A):
The applicant was initially appointed to the post of Trained Graduate Teacher (Science) on 07.11.1974; promoted as Post Graduate Teacher (Political Science) on 17.04.1997 and retired from the same post on attaining the age of superannuation on 31.10.2012. The applicant states that till the date of her retirement, neither any order was communicated to her, nor any order of recovery of overpayment was issued to her. Also no such memo or show cause notice was issued to the applicant at any time during her service. On her retirement on 31.10.2012, she was released her GPF amount but other retirement benefits were not released at that time. The applicant was informed that the Pay and Accounts Office had raised certain objections and asked her pay to be re-fixed along with recovery of arrears of pay and allowances from 1.1.1986. She was released her commutation of pension and Death-cum-Retirement Gratuity on 26.02.2013 but after reducing the same after re-fixing the pay. The respondents also recovered Rs. 1,25,136/- for the alleged overpayment.
2. The applicant made a representation dated 14.03.2013 for release of all her retirement benefits. The respondents in response to her representation, vide impugned order dated 06.09.2013, justified their action of re-fixation of pay as also recovery of Rs. 1,25,136/- from the DCRG of the applicant. In that order, the respondents also stated that she was wrongly granted date of increment on her getting the Senior Scale as 1.01.1987, whereas it should have been 1.10.1987. Also it was pointed out that another letter dated 17.06.2013 was issued to the applicant stating that she had agreed for the recovery and the matter, therefore, had been settled. In this background, the applicant has filed the OA praying for quashing of the impugned orders dated 06.09.2013 and 17.06.2013 as well as the orders dated 23.05.2013 and 24.05.2013. The latter two orders of May, 2013 basically state that the applicant had agreed for recovery and that Rs.1,25,136/- was recovered due to wrong date of increment in pay as noted above. The orders also mentioned that the date of grant of Senior Scale was also incorrect and had to be shifted forward due to her being on 288 days EOL, w.e.f. 18.07.1983 to 30.04.1984, which had not been taken into account.
3. It is also prayed by the applicant that the action taken by the respondents in re-fixing the pay and shifting the date of granting of senior scale be declared as illegal and direct the respondent to restore her pay and allowances and release the recovered amount with a further request to pay the interest at the rate of 18% per annum.
4. The applicant has filed this OA on the following grounds:-
(i) According to the applicant, her pay was correctly fixed based on the order dated 14.01.1987 of the Finance Secretary, which was not available with the Pay and Accounts Officer. However, this order is not produced before us.
(ii) The respondents took arbitrary action almost after 30 years in changing the date of granting of senior scale without any show cause notice.
(iii) The Honble Supreme Court in the case of Babu Lal Jain vs. State of M.P. & Ors. (2006) 6 SCC held as under:-
15. We, however are of the opinion that in case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law.
(iv) The ratio laid down in the following judgments that even in case of erroneous payment, the recovery of excess/overpayment already paid cannot be recovered, and therefore, there is no question of recovery of any over payment or excess payment at this stage without any reasons or justification and show cause notice and therefore, the impugned orders are liable to be quashed:-
(a) S.Leikh Abdul Rashid & Ors. Vs. State of J&k, JT 2008(1) SC 127.
(b) Union of India Vs. Narendra Singh, 2008(1) SC (L&S) 547.
(c) Duryodhan Lal Jatav Vs. State of UP Anr. 2005(3) ATJ 56.
(d) Shyam Babu Verma Vs. Union of India & ors. 1994(2) SCC 521.
(v) The Honble Supreme Court in the cases of State of Orissa Vs. Advail Charan Mohandty, 1995 Suppl(1) SCC 470, Union of India Vs. Sita Ram Dheer, 1994 SCC (L&S) 1445, Nand Kishore Sharma Vs. State of Bihar, 1995 Supp.(3)SCC 722, State of Karnataka Vs. Mangalore University Non Teaching Employees Assn. 2002(3) SCC 302, held that if additional payment has been made to the employee for no fault of theirs, they should not be penalized for this and same should not be recovered and, therefore, in view of the settled legal position, the respondents are not entitled to recover the alleged excess pay, which was paid to the applicants rightly at that time with the approval of the higher authorities.
(vi) The Honble Supreme Court in the case of S.K. Dua Vs. State of Haryana (2008) 3 SC 44 held that the applicant is entitled for payment of interest when there is no delay on his part.
(vii) Finally, the applicant filed before us a copy of the judgment of the Honble Supreme Court in State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc. (Civil Appeal No. 11527 of 2014 decided on 18.12.2014) in which Honble Supreme Court had laid down the following few situations wherein recoveries by the employers would be impermissible in law:-
(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 employers right to recover.
5. The case of the respondents is that the applicant, who was granted senior scale w.e.f. 07.01.1986, had opted fixation of pay w.e.f. 01.10.1986 and after such fixation, her date of next increment should have been w.e.f. 01.10.1987 but she was granted next increment on 01.01.1987. This date of annual increment was repeated on every date of next increment and this wrong grant of increment caused over payment of Rs. 1,25,136/-, which was pointed out by the Pay and Accounts Officer. It is, therefore, stated by the respondents that they had only corrected a mistake and, therefore, there were no need to issue any show cause. The respondents relied on the decision in Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. (2012) 8 SCC 117 to state that the Honble Supreme Court has held in this case that recovery of excess salary paid is permissible.
6. Heard the learned counsels for the parties and perused the judgments placed before us by both the sides.
7. As regards the recovery, the matter is squarely covered by the judgment of the Honble Supreme Court in Rafiq Masih etc. (supra), and, therefore, no recovery can be made.
8. However, on the question of fixation of salary, since there was an error which was detected later on, the respondents re-fixing the salary and pension and other retirement benefits accordingly is permissible. The Rafiq Masih (supra) judgment only restricts recovery in certain cases. It does not restrict correction of errors. However, the respondents are directed not to recover any amount as a result of the re-fixation and consequent over payment and in case any amount has been recovered that should be paid back to the applicant.
9. Since delay in release of retirement benefits is clearly the fault of the respondents, Rules stipulate, as pointed out by the applicant, that all calculations relating to the retirement of any Government servant has to be taken up well before he retires. By not doing so, the respondents have violated their own circulars. In such cases, the payment of interest is justified and we, therefore, direct the respondents to pay interest to the applicant for the period of delay in payment of commuted value of pension, DCRG and all other retirement benefits at the rate applicable in GPF.
10. With the above directions, the OA is disposed of.
(P.K. Basu) (Syed Rafat Alam) Member (A) Chairman /lg/