Central Administrative Tribunal - Chandigarh
Savitri Devi vs Prasar Bharati, M/O Information And ... on 30 March, 2021
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A. No. 060/811/2019
(Order reserved on 15.03.2021)
Chandigarh, this the 30th day of March, 2021
HON'BLE MRS. AJANTA DAYALAN, MEMBER (A)
Ex. Head Clerk Savitri Devi aged 61 years wife of Sh. Prithvi
Chander Paul r/o H. No. 91, Keshav Nagar, Near Mithapur
Chowk, Jalandhar (Punjab) - 144014 - Group „C‟
...........Applicant
By Advocate: Sh. Ravi Badyal
Versus
1. Union of India through its Secretary, Ministry of
Information & Broadcasting, Suchna Bhawan, CGO
Complex, New Delhi-110011.
2. The Director General, Prashar Bharti, Doordarshan,
Doordarshan Bhawan, Mandi House, Copernicus Marg,
New Delhi-110001.
3. The Accounts Officer, Pay & Accounts Office, Doordarshan,
Room No. 214, Parliament Street, New Delhi-110001.
4. The Deputy Director General, Prasar Bharati, India‟s Public
Service Broadcaster, Doordarshan Kendra, Jalandhar-
144006.
............Respondents
By Advocate: Sh. Sanjay Goyal
ORDER
AJANTA DAYALAN, Member (A):
1. The present OA has been filed by the applicant Savitri Devi seeking quashing of order dated 18.06.2018 2 (Annexure A-5) regarding recovery of an amount of Rs. 3,71,680/- from the pension of the applicant. She has also sought directions to the respondents to release this amount.
2. The applicant has stated that she joined the respondent department of Doordarshan in the year 1981 as Lower Division Clerk. She was promoted as Upper Division Clerk in 1991 and was granted upgradation in the pay scale of Rs. 6500-10500 on 06.01.2005.
3. The applicant has further stated that in view of the revised pay structure consequent to 6th CPC, the pay of the applicant in pre-revised pay scale of Rs. 5500-9000 as on 01.01.2006 was upgraded to Rs. 6500-10500 in PB-2 - Rs. 9300- 34800 with Grade Pay of Rs. 4200 on 01.01.2006. Accordingly, her pay was fixed at Rs. 12090/- as on 01.01.2006. A copy of the circular dated 03.10.2012 and order of pay fixation dated 08.01.2013 are attached as Annexures A-1 and A-2 respectively.
4. Further, the applicant has submitted that a clarification was issued by Department of Expenditure vide their OM dated 28.07.2015 as conveyed by Ministry of Information and Broadcasting vide their letter dated 29.10.2015 which states as follows:-
"The Pay in the Pay Band will be determined by multiplying the existing Basic Pay as on 01.01.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten. To ease the complexity of multiplication and rounding off, the fitment tables of pre-revised scales of pay in which the officer has drawn his pay as on 01.01.2006 has to be used for arriving at the pay in the pay band and thereafter, the grade pay corresponding to the upgraded scale as indicated in Column-6 of Part-B or Part-C of CCS (Revised Pay) Rules, 2008 will be payable in addition."3
5. In view of above, the pay of the applicant was required to be fixed and recovery of excess payment due to refixation was withheld subject to outcome of court cases. Accordingly, refixation of pay of the applicant was ordered. Copy of Memorandum dated 04.04.2016 and order of refixation dated 28.03.2016 are attached as Annexures A-3 and A-4 respectively.
6. The applicant has further submitted that in view of various judgements referred to in Memorandum dated 04.04.2016 (Annexure A-3), the applicant had no grievance in respect of refixation order dated 28.03.2016 (Annexure A-4). As such, she kept silent over this issue as no recovery of excess payment was effected.
7. The applicant has further submitted that she retired as Head Clerk on 31.05.2018 in the pay scale of Rs. 9300-34800 with Grade Pay of Rs. 4600/-. The pensionary benefits were released to her. However, a recovery of Rs. 3,71,680/- was made from her gratuity vide order dated 18.06.2018 (Annexure A-5). The applicant being aggrieved by this order, made a representation dated 20.08.2018 (Annexure A-6). This was forwarded to DG.AIR vide letter dated 12.10.2018 (Annexure A-
7). A similar another grievance petition dated 27.03.2019 in respect of wrong recovery was replied to by the respondents vide letter dated 29.04.2019 (Annexure A-8) wherein it is stated that recovery is being made as per directions of Doordarshan Kendra Jalandhar. In this regard, letter dated 10.05.2019 in respect of the applicant is also also attached as Annexure A-9. 4
8. Finally, the applicant relied upon the case of State of Punjab & Others versus Rafiq Masih and Others, SCT 2015(1) 195 to state that recovery from her retiral dues is illegal and is against law as settled by the Apex Court in this judgement.
9. Accordingly, the applicant had concluded that the action of the respondents in recovering the amount of excess payment due to pay fixation from her retiral dues is not tenable and sustainable in law and as such, the orders in this regard need to be quashed and the recovered amount should be refunded to her.
10. The respondents have contested the claim of the applicant. They have stated that the applicant joined as Lower Division Clerk in 1981 in pay scale of Rs. 260-400. She was promoted as Upper Division Clerk on 16.11.1991 (and not on 06.11.1991 as stated by the applicant) in the revised pay scale of Rs. 1200-2040. She was given second financial upgradation under ACP scheme w.e.f. 06.01.2005 in the pay scale of Rs. 5500-9000 (and not in the pay scale of Rs. 6500-10500 as stated by the applicant) vide order dated 08.12.2005 (Annexure R-2).
11. The respondents have further stated that the existing basic pay of the applicant as on 01.01.2006 was Rs. 5675/-. On implementation of CCS (Revised Pay) Rules, 2008, the 6th CPC merged the pay scales of Rs. 5000-8000, 5500-9000 and 6500-10500 w.e.f. 01.01.2006. All these pay scales were merged in PB-2 Rs. 9300-34800 with Grade Pay of Rs. 4200. 5 Thereafter, the pay of the applicant was fixed correctly at Rs. 10560/- with Grade Pay of Rs. 4200/- w.e.f. 01.01.2006 vide order dated 23.09.2008. This fixation was correct as per 6 th CPC pay fixation illustration at 4(B) as well as fitment table taking into account her basic pay of Rs. 5675 (Annexures R-3 to R-5).
12. The respondents have further pleaded that as per directions received from Director General, All India Radio vide letter dated 03.10.2012 (Annexure R-6), the pay of the applicant was refixed wrongly at Rs. 12090/- with Grade Pay of Rs. 4200 w.e.f. 01.01.2006 vide order dated 08.01.2013 (Annexure R-8) as per pay fixation illustration 4(A) (Annexure R-7), instead of illustration 4(B), taking into account her basic pay as Rs. 6500/-.
13. The respondents have further pleaded that Department of Expenditure clarified the issue vide OM dated 28.07.2015 (Annexure R-9). This was conveyed by Ministry of Information and Broadcasting vide their letter dated 29.10.2015 (Annexure R-10). Consequently, the pay of the applicant was required to be refixed w.e.f. 01.01.2006.
14. The respondents have further submitted that after receiving this clarification, a Show Cause Notice dated 04.04.2016 (Annexure R-11) and subsequent reminder dated 26.04.2016 (Annexure R-12) were issued to the applicant. But, the applicant did not give any reply. As such, the pay of the applicant was refixed w.e.f. 01.01.2006 at Rs. 10560/- (instead of Rs. 12090) with Grade Pay of Rs. 4200/- vide order dated 27.05.2016 (Annexure R-13). This was after taking into account her basic pay of Rs. 5675/- instead of Rs. 6500/-. 6
15. The respondents have also pointed out that Annexure A-4 was only a draft of pay fixation order served to the applicant along with Show Cause Notice. The final pay fixation order was issued on 27.05.2016.
16. The respondents have further pleaded that the post of Head Clerk has been notified as a Group „B‟ post vide DoPT notification dated 09.04.2009 (Annexure R-14) and 09.11.2017 (Annexure R-15).
17. The respondents have also pleaded that at the time of opting for CCS (Revised Pay) Rules, 2008 w.e.f. 01.01.2006, the applicant had submitted an undertaking dated 18.09.2008 that any excess payment that may be found to have been made as a result of incorrect pay fixation or any excess payment detected in the light of the discrepancies noticed subsequently will be refunded by her to the Government either by adjustment against future payments due to her or otherwise (Annexure R-
16).
18. The applicant further submitted another application/undertaking dated 22.05.2018 that she had no objection to recover any overpayment of pay and allowances from her gratuity (Annexure R-17). This undertaking was forwarded to Pay and Accounts Office, Doordarshan, New Delhi vide letter dated 23.05.2018 (Annexure R-18). Accordingly, the recovery of excess payment of Rs. 3,71,680/- was made from her gratuity vide PPO dated 18.06.2018 (Annexure R-19).
19. The respondents have pleaded that in view of the undertakings submitted by the applicant dated 18.09.2008 and 7 22.05.2018, she had already undertaken that she has no objection for recovery of excess payment on account of pay and allowances. Despite this, when her pension case was finalized, she submitted a representation on 20.08.2018 (Annexure R-20) for refund of excess amount recovered. The representation of the applicant along with other similarly situated persons was forwarded to respondent No. 2 vide letter dated 20.09.2018 (Annexure R-21). The same was forwarded to DG.AIR on 12.10.2018 (Annexure R-22). After considering the representation, the DG.AIR vide letter dated 22.11.2018 (Annexure R-23) intimated that the action taken regarding refixation of pay and recovery is in order as per judgement of the Hon‟ble courts in the similarly situated cases from time to time. Accordingly, the applicant was informed vide memorandum dated 30.01.2019 (Annexure R-24).
20. The respondents have further relied on the case of High Court of Punjab and Haryana and Others versus Jagdev Singh in Civil Appeal No. 3500 of 2006 decided on 29.07.2016 (Annexure R-25) and orders in similarly situated cases by Bangalore Bench of this Tribunal in OA No. 170/00215/2017 titled Padma Sadashiva versus Union of India and Others decided on 19.01.2008 (Annexure R-26).
21. In view of above, the respondents have concluded that the action of the respondents is as per law settled by the various courts. The recovery of excess payment made to the applicant on account of wrong fixation of pay w.e.f. 8 01.01.2006 needs to be made and no relief can be granted to her. Accordingly, the OA deserves to be dismissed.
22. I have heard the counsel of the opposing parties and have also gone through the pleadings of the case. I have also given my thoughtful consideration to the entire matter.
23. First of all, I observe that the matter relates only to recovery of Rs. 3,71,680/- made from the applicant from the gratuity amount paid to her after her retirement on 31.05.2018.
24. Next, I observe that even the applicant is not stating that the pay fixation finally done by the respondents is incorrect. The applicant is not objecting to the amount of recovery. She has only objected to the fact of recovery. In fact, I observe that firstly the respondents fixed the pay correctly after implementation of 6th CPC as on 01.01.2006 at Rs. 10,560/- with Grade Pay of Rs. 4200. However, under some mis-impression and mis-interpretation, they refixed this pay at Rs. 12090/- with same Grade Pay vide order dated 08.01.2013 (Annexure R-8). This was because they took existing basic pay of the applicant as Rs. 6500/- whereas her existing basic pay was Rs. 5675/-. As such, they had to further refix her pay back to Rs. 10560/- with Grade Pay of Rs. 4200/- vide order dated 27.05.2016 (Annexure R-13).
25. It is clear from the pleadings of the applicant that she is not objecting to this final correct fixation of her pay. Thus, the only issue that remains to be decided is whether the recovery can be made from her retiral dues - more specifically 9 gratuity - towards excess payment made to her on account of wrong fixation of pay.
26. With regard to the question of recovery, two factors are most important. Firstly, the applicant retired as Head Clerk which is a post notified as Group „B‟ post as per DoPT notifications dated 09.04.2009 (Annexure R-14) and 09.11.2017 (Annexure R-15). When this was pointed out by the counsel for the respondents, even the counsel for the applicant did not dispute this statement. Secondly, it is the fact that the applicant has given two undertakings dated 18.09.2008 and 22.05.2018 (Annexures R-16 and R-17 respectively) giving her consent for recovery of excess payment. The first undertaking of 2008 is at the time of fixation of pay post 6th CPC which is what is relevant in the present case as the whole cause of action is regarding pay fixation w.e.f. 01.01.2006. The second undertaking of 2018 is specific to recovery of any overpayment of pay and allowances from her gratuity. It is clear from a perusal of her own undertaking at Annexure R-17. Thus, in view of such clear cut undertakings, judgement relied upon by the respondents in case of Jagdev Singh (supra) is relevant and is clearly applicable in the present case.
27. In view of the specific undertakings given by the applicant giving her consent for recovery, the respondents are within their rights to make the recovery. This is the settled law as decided by the Hon‟ble Apex Court in case of Jagdev Singh (supra). This is also the law as followed by the Bangalore Bench of this Tribunal in the case of Padma Sadashiva (supra). 10
28. I further note that the applicant has also been put to notice in this regard vide order dated 04.04.2016 (Annexure R-
11). She was also reminded on 26.04.2016 (Annexure R-12). However, she did not object to this at that time. It is only now that she is pursuing this case. Thus, she cannot say that she was not given an opportunity prior to making recovery.
29. In view of all above, it is clear that the action of the respondents is correct and appropriate. It is also supported by law as per judgements quoted by the respondents. As such, the applicant does not deserve any relief and the OA is dismissed.
30. There shall be no order as to costs.
(Ajanta Dayalan) Member (A) Place: Chandigarh Dated: March 30, 2021 ND*