Central Administrative Tribunal - Delhi
Santosh Goyal vs M/O Defence on 7 August, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:
NEW DELHI
O.A. NO.572 of 2018
This the 7th day of August 2019
Hon'ble Ms. Nita Chowdhury, Member (A)
1. Smt. Santosh Goyal
W/o Sh. Viond Kumar Goyal,
A/c No.82884594, DEO-C,
JCDA (AF) New Delhi-110066.
2. Sh. Jai Bhagwan
S/o Late Sh. Babu Lal,
A/o No.8288599, DEO-C
PCDA (R&D) New Delhi-110066.
3. Sh. Lalit Bhardwaj,
s/o Sh. AS Sharma,
A/o No.8328025, DEO-B, IT&S
PCDA (R&D) New Delhi-110066.
(Applicant 1 to 3, original recruited as junior key punch
operator subsequently re-designated as DEO „grade A‟)
4. Sh. Sushil Kumar
s/o late Brij Kishor Thakur
A/c 8320118, Sr. Auditor (recruited as DEO-A)
JCDA (AF), New Delhi-110066.
5. Smt. Mamta Bhatia
w/o Sh. J.K. Bhatia
A/c No.8288600, DEO-C, IT&S
PCDA (R&D), New Delhi-110066
....Applicants
(By Advocate : Mr. Saman Pal Singh, Mr. Sandeep Ranjan and
Mr. Amit Kumar)
VERSUS
1. Controller General of Defence Accounts
Ulan Batar Road,
Delhi Cantt-110010.
2. P.C.D.A. (R&D), West Block-5,
R.K. Puram, New Delhi-110066.
3. CDA(AF), West Block-V, R.K. Puram,
New Delhi-110066.
2
4. Union of India
Through : The Secretary,
Ministry of Defence,
Government of India,
Room No.101-A, South Block,
New Delhi-110011.
5. The Secretary,
Department of Personnel & Training,
Government of India,
New Delhi-110 001.
.....Respondents
(By Advocate : Shri Rajeev Kumar)
O R D E R (Oral)
Heard learned counsel for the parties.
2. By filing this OA, the applicants are seeking the following reliefs:-
"(a) QUESH
(i) Circular No.EDP/113/II(PC)/Vol-18 dated
01.09.2016 (under Annexure A1 to the
Original Application)
(ii) Circular No.EDP/113/II(PC)/Vol-18 dated 27-
01-2017 (under Annexure A2 to the Original Application) Both issued by the respondent No.1 and
(iii) Pt.-II OO No.121 dated 23.06.2017 (under Annexure A3 to the Original Application) Issued by:- Respondent no.4
(iv) Pt.-II OO No.163 dated 04.09.2017 (under Annexure A4 to the Original Application) Issued by:- Respondent no.4
(v) Pt.-II OO No.276 dated 13.11.2017 (under Annexure A5 to the Original Application) Issued by:- Respondent no.2 3
(vi) (a) Pt.-II OO No.277 dated 13.11.2017 Issued by:- Respondent no.2
(vii) (b) Pt.-II OO No.278 dated 13.11.2017 (under Annexure A6(a) and A6(b) to the Original Application) Issued by:- Respondent no.2 by issue of a writ in the nature of certiorari and grant ll consequential benefits.
(b) Issue orders to remove the effect of fixation of pay back to normal as it was on prior to the fixation and to give the arrears of the amount recovered.
(c) Issue any other appropriate writ, order or direction as this Hon‟ble Tribunal deems fit in the interest of justice and equity, including the award of costs of this Original Application."
3. There is no dispute that the aforesaid orders of recovery in the cases of the applicants have been issued by the respondents in view of the fact that the applicants had been earlier granted the pay parity based on interim order of the Hon‟ble Mumbai High Court against an undertaking from them but the said decision and other decisions of the various Benches of this Tribunal as well as of various High Courts on the issue of grant of pay scale of Rs.1350-2200 w.e.f. 1.1.1986 to the Data Entry Operator Grade „A‟ were came for final adjudication before the Hon‟ble Supreme Court in Civil Appeal No.10862 of 2014 and other connected Civil appeals and the Apex Court vide Order dated 9.12.2014 observed that "Data Entry Operators Grade-A are not entitled for Scale of pay of Rs.1350-2200 w.e.f. 1.1.1986 or thereafter merely on 4 the basis of their qualifications or for the fact that they have completed their period of requisite service. We further hold that any decision rendered by any Tribunal or any High Court contrary to our decision is wrong. Further in view of the reasons and findings recorded above while we hold that the respondents are not entitled to the benefit as they sought for before the Tribunal or the High Court, all the impugned orders passed by the CAT Benches and the High Courts in favour of the respondents being illegal are set aside."
4. Counsel for the applicant contended that there were no specific directions for the recovery of the excess payment made to the Government employees by the Apex Court while passing the aforesaid judgment.
4.1 Counsel for the applicant further contended that second issue regarding the financial upgradation under ACP Scheme came to be decided by the Bengalore Bench of this Tribunal by order dated 15.9.2009 in OA 336/2006 in which it was ordered that the applicants are entitled to 1st financial upgradation in pay scale applicable to DEO Grade „C‟. However, the UOI challenged the said order before the Hon‟ble Karnataka High Court in Writ Petition No.35384 of 2010 and the Karnataka High Court vide Order dated 24.2.2011 dismissed the said Writ Petition. However, the said decision of the Karnataka High Court was challenged by the UOI by filing Civil Appeal No.1077/2012 and the said Civil Appeal along 5 with SLP (C) No.5157 on the same issue are still pending before the Apex Court.
4.2 Counsel for the applicant submitted that issue of recovery of excess payment made to the Government employees has been decided by the Apex Court in Civil Appeal No.11527/2014 titled as State of Punjab and others vs. Rafiq Masih (White Washer) etc. and laid down five postulates wherein recoveries from the employees would be impermissible in law, which are as follows:-
"(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 employer's right to recover."
and the applicants‟ case falls under the categories in points (i) and (ii) above.
4.3 Counsel for the applicants further contended that DOP&T has also issued an OM dated 2.3.2016 regarding the 6 recovery of wrongful/excess payment made to Government servants wherein Ministries/Departments were advised to deal with the issue of wrongful/excess payment made to Government servants in accordance with the decisions of the Apex Court in Rafiq Masih's case (supra) and alleged that impugned order dated 1.9.2016 has been issued by the respondents without considering the aforesaid OM issued by the DOP&T and the decision of the Apex Court in Rafiq Masih's case (supra).
4.4 Counsel further submitted that applicants submitted several representation against the aforesaid impugned order dated 1.9.2016 but the respondent no.4 vide impugned order 23.6.2017 has implemented the direction regarding the re- fixation of pay and started recovery of excess payment by deducting a fixed amount from the monthly salary of applicant no.4 despite the fact that directions were given to CGDA (respondent no.1) by the Ministry of Defence vide ID dated 30.11.2016 (Annexure A17) that till the finalization of the case filed by CGDA in the Hon‟ble Supreme Court recovery of overpayments may be withheld and in view of the fact that the Supreme Court order dated 9.12.2014 does not pertain to DEOs of CGDA and in the light of DOP&T OM dated 2.3.2016 regarding recovery of overpayments made to the Government servants, MoD (Fin)/DAD (Coord) is requested to examine the issue and furnish their comments 7 urgently to them. Thereafter the Hon‟ble Supreme Court in case having Diary No.22498/2017 in the matter of Madhu Soodan Pasi and others vs. Union of India and others in which the petitioners pleaded that "Now recovery has been ordered, in view of the decision of this Court in Union of India & Anr. Vs. T.V.L.N. Mallikarjuna Rao, (2015) 3 SCC 653, which can be applied prospectively." and the Hon‟ble Supreme Court vide order dated 4.9.2017 stayed the recovery of amount paid to the petitioner till the next date of hearing. However, the respondent no.4 vide Office Order dated 4.9.2017 has implemented the direction regarding the re- fixation of pay and recovery of excess payment made to applicant no.1, notwithstanding the stay order against the such recovery granted by the Apex Court in Madhu Soodan Pasi's case (supra).
4.5 Counsel for the applicants further contended that Bangalore Bench of this Tribunal vide order dated 25.10.2017 passed in OA 170/00209/2017/CAT/BANGALORE has stayed the operation of the circulars issued by CGDA (Controller General of Defence Accounts) for re-fixation of pay and recovery of over payment of salary till the final outcome of the matter in SLP, the relevant portion of the said Order of Bangalore Bench reads as under:-
"2. Apparently on this issue as the Hon'ble Apex Court has declined to intervene in favour of the applicants 8 therein, we had also dismissed the OA No. 839- 848/2013 vide order dated 06.01.2016.
3. But now the learned counsel for the applicant has produced before us an order of the Hon'ble Apex Court in a similar matter arising out of the judgment and order dated 12.01.2017 in Writ Petition No. 12501/2016 in the case of Madhu Soodan Pasi & Ors. Vs. Union of India & Others as Diary No. 22498/2017 dated 04.09.2017 which is extracted herein:
"It is submitted that the order, under which the salary was given, was not questioned by the Union of India and that has attained finality. Now recovery has been ordered, in view of the decision of this Court in Union of India & Anr. Vs. T.V.L.N. Mallikarjuna Rao (2015) 3 SCC 653, which can be applied prospectively.
Delay condoned.
Issue notice.
Recovery of amount paid to petitioner shall remain stayed till the next date of hearing."
Since the Hon'ble Apex Court has now stayed the recovery, we will dispose off the OA itself with the rider that, based upon the decision of the Hon'ble Apex Court in the said case, recovery or not can be done by the respondents but before attempting a recovery a show cause notice indicating the disposal of the matter before the Hon'ble Apex Court shall be made available one month before effecting such recovery to enable to applicants herein also to check the veracity but after that if the judgment of the Hon'ble Apex Court is in favour of the respondents they can recover, if not, they cannot recover. The learned counsel for the applicant would say that similar matters are also pending which we will allow the applicant to bring to the notice of the respondents as the case may be.
4. The OA is therefore disposed off with liberty as aforesaid. No order as to costs."
4.6 Counsel further contended that even thereafter on 13.11.2017, the respondents vide Office Orders dated 13.11.2017 issued to the applicant no.2 and applicant no.5 9 have continued for re-fixation of pay and recovery against the applicants and thereby they have flouted the stay order granted by the Hon‟ble Supreme Court against re-fixation of pay and recovery. Counsel also contended that a communication dated 17.11.2017 had been issued by the Office of CGDA informing all PCsDA/CsDA regarding stayed order granted by the Apex Court in SLA(C) Diary No.22498/2017 in the matter of Madhu Soodan Pasi. 4.7 Counsel also contended that applicant no.2 has issued a legal notice dated 19.12.2017 detailing all the aforesaid facts in the same.
4.8 Counsel also contended that Patna Bench of this Tribunal vide Order dated 2.1.2018 in OA 50/809/2017 has also passed the similar order as passed by the Bangalore Bench of this Tribunal (supra).
4.9. Counsel also contended that despite the aforesaid facts and circumstances, the respondents are still making recoveries from their monthly salaries. In the above circumstances, the applicants have filed this OA seeking the reliefs as quoted above.
4.10. Counsel for the applicant also placed reliance on the decision of the Apex Court in the case of Shyam Babu Verma and others vs. Union of India and another, 1994(2) SCC
521. 10 4.10. Lastly counsel further submitted that this Tribunal vide interim order dated 27.4.2018 directed that in view of the decision of the Apex Court in Madhu Soodan Pasi (supra), the respondents were directed not to effect any recovery from the applicant till the next listed date.
5. On the other hand, counsel for the respondents by referring to their counter affidavit submitted that in compliance of aforesaid Order of the Hon‟ble Mumbai High Court, the re-fixation of pay in respect of DEOs in the scale of Ra.1350-30-2200 (prior to 1.1.1996) and to Rs.4500-125- 7000 after 1.1.1996 were done vide HQrs Office Letter dated 4.1.2005. Accordingly, pay of the applicants was fixed by the respondents vide OO Nos.69 dated 20.4.2005, 105 dated 14.6.2005 118 dated 28.6.2005 and 100 dated 27.1.2005 after obtaining the undertaking from the applicants that DEOs to refund the benefits in the event that issue is decided in favour of the department finally.
5.1 Counsel further submitted that the issue has since attained finality with the Supreme Court‟s judgment dated 9.12.2014 (supra) disposing off various SLPs filed by other departments (SLP-C Nos.28595-96/2010, 31613/2011, 3306/2012, 3956/2013, 26977/2010) wherein it has been held that "Data Entry Operators Grade-A are not entitled for scale of pay of Rs.1350-2200 w.e.f. 1.1.1996.... all the impugned orders passed by the CAT Benches and the High 11 Courts in favour of the respondents being illegal are set aside."
5.2 Counsel also submitted that judgment of the Supreme Court in the matter of Shyam Babu Verma (supra) relied upon by the applicants in this case is not relevant as the said judgment was in regard to recoveries being made by the Government in cases where excess amount has been paid to petitioners due to fault of respondent, the petitioners being in no way responsible for the same. However, in the present case, pay of the applicants was re-fixed under implementation of Bombay High Court‟s order with a clear undertaking from the individuals concerned that in case the department succeeds in its appeal before the Hon‟ble Supreme Court, the same is required to be refunded and as such, the excess amount has not been paid to the applicants due to some mistake on the part of the respondents rather it is a case where the pay and allowances of the applicants were re-fixed after decision of Hon‟ble Mumbai High Court and that decision has been overturned by the Supreme Court and the implementation of the Hon‟ble Supreme Court order (supra) involves recovery of the amount that was paid to the applicants in compliance with the High Court order which has now been set aside.
6. Having heard learned counsel for the parties and carefully perused the pleadings available on record, we are of 12 the view that the recoveries initiated by the respondents after the decision of the Hon‟ble Supreme Court in Civil Appeal No.10862 of 2014 and other connected Civil appeals (supra) dated 9.12.2014, is in order because the applicants themselves have clearly give their respective undertaking regarding refund of the amount being paid in the event the order of the Hon‟ble High Court is reversed/overturned by the Hon‟ble Supreme Court. Since the Hon‟ble Supreme Court has over turned the decision of the Hon‟ble High Court as a consequence thereof the applicants are liable to refund the payments made to them on basis of undertaking furnished by them, as the said issue has attained finality. We therefore, do not find any merit in the claim of the applicants assailing the impugned orders of recovery.
7. The Hon‟ble Supreme Court again considered the issue of recovery in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh in Civil Appeal No.3500/2006 decided on 29.7.2016, in which held as follows:-
"9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact 13 that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334, this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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 employer's right to recover." (emphasis supplied).
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. 12 For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.
13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs." 14
8. In the result, for the foregoing reasons, the instant OA is found bereft of merit and the same is accordingly dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/