Central Administrative Tribunal - Jodhpur
Vishal Fanda S/O Late Shri Daulat Ram ... vs Union Of India on 25 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH
OA No.558/JODHPUR/2013 Pronounced on : 25.1.2017
(Reserved on: 18.1.2017)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MS. PRAVEEN MAHAJAN, MEMBER (A)
Vishal Fanda S/o Late Shri Daulat Ram Fanda, Aged about 31 years, B/C-Dhanka (ST) R/o Vill. Ward No. 8, Padampur, District Sri Ganganagar (Office Address : Working as GDS BPM at 42 GB on deputation, posted at Ramsinghpur Sub Post Office).
APPLICANT
BY ADVOCATE : Mr. S.P. Singh.
VERSUS
1. Union of India,
Through the Secretary,
Government of India,
Ministry of Communication, Department of Post,
Dak Tar Bhawan, New Delhi.
2. The Chief Post Master General,
Rajasthan Circle, Jaipur-302007.
3. The Post Master General,
Western Region, Rajasthan, Jodhpur.
4. Superintendent of Post Offices,
Sri Ganganagar Division, Sri Ganganagar.
5. Inspector of Posts, Suratgarh-335804.
RESPONDENTS
BY ADVOCATE: Mr. K.S. Yadav.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The present O.A has been filed under Section 19 of the Administrative Tribunals Act, 1985 wherein the applicant has assailed the action of the respondents in making deduction of (Time Related Continuity Allowance (for short TRCA) from Rs.4200+DA=6700 to Rs.2951 and to issue direction to the respondents to grant him TRC in accordance with the rules under GDS for GDSBPM and notification issued by competent authority and refund the amount recovered from him.
2. The facts, which led to filing of the present O.A, are that the applicant was appointed as Gramin Dak Sevak vide memo dated 18.6.2010 and he joined his duties at Ramsinghpur SPO under Sri Ganganagar HO. The TRCA granted to him was Rs.4220+DA. The applicant claims to have qualification for the post of GDSBPM and as such was posted at 42 GB. However, without issuance of any notice, they reduced his TRCA and started making recovery from the applicant. He claims that the TRCA for the post of GDSMD is Rs4220-75-6470. The applicant works for more than 5 hours a day and workload of GDSBPM is for more than 5 hours a day. The applicant was not paid pay and allowances of GDSBPM and even the amount of TRCA was deducted from him. He has rendered more than 3 years of service. The TRCA has been revised after 6th CPC which too has not been given to applicant. The applicant was paid TRCA of Rs.6700 as is available to GDSBPM but the same was deducted @ Rs.1250/- per month. He has mentioned some personal problems. His claim is that since he is working on the post of GDSBPM, he is entitled to pay and allowances available to that post, hence the O.A.
3. The O.A. is resisted by the respondents by filing a detailed reply. It is submitted that the applicant was entitled for TRCA in slab of Rs.2665-50-4165 as per notification issued at the time of recruitment vide memo dated 22.3.2010. But he was fixed in TRCA of Rs.4220-75-6470. In clarification dated 16.7.2012, it is mentioned that TRCA of GDS appointed on or after 1.1.2006, will be fixed at the minimum of the new TRCA slab and next annual increase shall be allowed after completion of one years continuous service from the date of engagement. Thus, the mistake was corrected and pay of applicant was correctly fixed and recovery was sought to be made. However, recovery could not be made due to interim order granted by this Tribunal at the time of motion hearing.
4. We have heard learned counsel for the parties at length and perused the material on the file.
5. Even though in the pleadings, it is vehemently pleaded by the applicant that the recovery was sought to be made from him without giving any reason or notice to the applicant but when the detailed reasons were mentioned by the respondents in the reply, the applicant has not even chosen to rebut the same by filing a replication or some other documents indicating that he was entitled to TRCA in a higher slap than the one in which he has been fixed subsequently. The pleadings make it clear that it was only a clerical error due to which the pay of the applicant was fixed in a higher slab of TRCA and on coming to know of the mistake, the same was corrected and pay of the applicant was rightly fixed. The applicant has failed to show that he is entitled to higher TRCA. That being the position, one cannot find fault with the action of the department in correction of an administrative error.
6. It is well settled law that an administrative error can be corrected and at any point of time. In JT 1997 (3) SC 536 (Chandigarh Administration Vs. Naurang Singh), it was held that the Government is well within its right to take corrective measures regarding undue benefit which has been wrongly granted to some employees. In the case reported as 1998 (2) ATJ, P-286 (Jagdish Prajapat Vs. The State of Rajasthan & Others), it has been held that a factual mistake can be rectified by the departmental authorities. Similarly, in 2005 (4) RSJ, 749 (Anand Prakash Vs. State of Punjab) and 1992 (1) SCT, 129, Raj Kumar Batra Vs. State of Haryana, it has been held that as and when a mistake is detected, the employer is within its right to rectify it. In (2005) 13 (G. Srinivas Vs. Govt. of A.P. & Ors.) as well, it has been held that an order passed by mistake or ignorance of relevant fact can be reviewed by the authority. In that view of the matter, the applicant cannot be granted any benefit as sought for by him in the Original Application qua grant of higher TRCA.
7. In so far as recovery is concerned, Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (White Washer) and others reported in [(2015) 4 SCC 334], issued certain directions in para 18, according to which, recoveries by the employers, would be impermissible in law in the following circumstances:
(i) Recovery from the employees belonging to Class-III and Class-IV service (or Group C and Group D Service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(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.
Learned counsel for the petitioner has stated that since the petitioner has retired as a class-III employee, as such in view of the aforesaid mandate of Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (supra), no recovery from the petitioner can be ordered.
8. On the other hand, Hon'ble Supreme Court vide order dated 29.07.2016 rendered in Civil Appeal No.3500 of 2006, High Court of Punjab & Haryana and others vs. Jagdev Singh, in para 11 has stated that the principle enunciated by Hon'ble Supreme Court in the case of State of Punjab and other vs. Rafiq Masih (supra) cannot apply to a situation where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess will be required to be refunded. Para 11 of the aforesaid judgment in the case of Jagdev Singh (supra) is quoted below:-
11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
A perusal of the aforesaid judgment in the case of Jagdev Singh (supra) reveals that by a notification dated 28.09.2001, pay scale of Rs.10000-325-15200 (senior scale) was allowed under the Haryana Civil Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay Rules, 2001 and under the said rules, each officer was required to submit an undertaking that any excess which may be found to have been paid which will be refunded to government either by adjustment against future payments due or otherwise.
9. In the aforesaid case of Jagdev Singh (supra) the Hon'ble Supreme Court found that the principles enunciated in the case of Rafiq Masih (supra) will not have any application in a situation where the officer/employee concerned is put to notice that any payment found to have been made in excess will be required to be refunded at the time of grant of particular pay scale or at the time of fixation of pay after grant of the pay scale in question. We have not been shown any documentary proof to indicate that the applicant was put to any notice that recovery can be made from him if later it is found that his pay was fixed wrongly. In any case, his case would be covered by clause (i) reproduced above under which such recovery is not permissible qua the employees belonging to Class-III and Class-IV service (or Group C and Group D Service). Thus, it is held that the respondents cannot make any recovery from the applicant of excess payment made to him.
10. The applicant has raised a valid point that his TRCA has not even been revised from time to time and to this there is no rebuttal and as such it would be in the fitness of things to direct the respondents to revise the TRCA of the applicant in the relevant slab as per the instructions and rules on the issue within a period of 3 months from the date of receipt of a certified copy of this order. Ordered accordingly.
11. No costs.
(PRAVEEN MAHAJAN) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 25.1.2017
Place: Jodhpur
HC*
1
OA No. 558/2013
(Vishal Fanda Vs. UOI & Ors.)