Delhi District Court
National Brain Research Centre vs Kannan Kastrui Ns on 22 August, 2024
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
RCA DJ No. 5330 of 2016
Date of Institution : 03.08.2016
Final arguments heard : 04.07.2024
Date of Judgment : 22.08.2024
National Brain Research Centre
(An autonomous body under the
Department of Biotechnology,
Government of India), NH-8,
Manesar, Haryana-122051
(Formerly at SCO 5-7, Sector-15,
Part II, Gurgaon) .....Appellant/plaintiff
Vs.
Shri Kannan Kasturi NS
Deputy Director,
Export Inspection Council of India,
3rd Floor, NDYMCA,
Cultural Centre Building
1, Jai Singh Road,
New Delhi-110001 .....Respondent/defendant
JUDGMENT
1. The appellant/plaintiff has filed the present appeal u/s. 96 CPC against the judgment and decree dated 30.05.2016 passed by the Ld. Senior Civil Judge, New Delhi District, Patiala House Courts in CS No. 119/14, whereby the appellant/plaintiff's suit for recovery of Rs. 1,75,817/- along with interest which was dismissed.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 1 of 49
2. The case of the appellant/plaintiff and the respondent/defendant before the Ld. Trial Court has been summarised in paragraphs 2 to 3.4 of the impugned judgment and it would suffice to extract the same hereunder to understand the respective case of the parties:
"2. Brief facts as stated in the plaint are that the plaintiff is a Society registered under the relevant provisions of the law including the Society Registration Act and that it functions under the direct control and supervision of Department of Biotechnology. Government of India and hence for all intent and purposes plaintiff is "State" within the meaning of Article 12 of the Constitution of India. This suit is being instituted through Prof. Subrata Sinha (Director) who is duly authorized as per the bye-laws/ rules of the plaintiff to institute the suit against the defendants for the recoveries of the amount and interest with costs and for which the Prof. Subrata Sinha (Director) is duly authorized to sign plaint/ affidavit/ affidavits of evidence/ vakalatnama and to file the documents and pursue the litigation on behalf of and as a representative of the plaintiff.
2.1 Defendant no. 1 is presently working as the regular Employee of defendant no. 2 which is also covered by the term "State" within the meaning of Article 12 of the Constitution of India. Defendant RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 2 of 49 no. 1 was earlier working as regular employee of the plaintiff. Defendant no. 1 and one Mr. Santosh Choudhary started acting as an officiating Chief Administrative Officer (CAO) and Finance and Accounts Officer (FAO) respectively. It was brought to the notice of the plaintiff through Department of Administration Reforms and Public Grievances (DARPG) and Department of Biotechnology that defendant no. 1 and one Mr. Santosh Choudhary had overdrawn the salary /pay in contravention of the Rules while acting as officiating CAO & FAO respectively. Initially the DARPEG and then Central Vigilance Commission asked the Department of Biotechnology to conduct an inquiry on the said issue vide e-mail communication dt. 01.09.2011, which was duly conducted.
2.2 Thereafter the matter was enquired into by a Committee consisting of Chairman (Prof. Neeraj Jain) and two other members (Mr. K.V.S. Kameswar Rao and Dr. Nandini Singh). The matter was thereafter sent to Controlling Administrative office (Department of Biotechnology) for clarification. Thereafter the proceedings were continued and an opinion dt.. 07.10.2011 was received from Department of Bio Technology (DBT) to recover the said excess payments from both the officers on the ground that the sald payments made to the said officers were not covered under FR-49.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 3 of 49 2.3 Vide letter dt. 11.10.2011, both the aforesaid officers were duly informed about the said proposed recovery action. The said order dt. 11.10.2011 become final against the said officers as no legal action has so far been initiated against the said orders by the aforesaid officers except making representation dt. 12.10.2011. Further, Plaintiff was informed by defendant no. 1 that he was recruited by defendant no. 2 as its regular employee. Hence he sought his release from plaintiff which was accepted and a no dues Certificate dt. 29.02.2012 was given by the Finance and AccountsSection of the plaintiff for joining, of defendant no. 1 in new position with defendant no. 2. However this relieving was given in the background of the pendency of the representation dated 12.10.2011 given by defendant no. 1 against the then proposed pending recovery proceedings, which was already sent for consideration vide note dt. 18.10.2011 to the Department of Bio Technology. The opinion on the representation dated 12.10.2011 was pending as on the date of receipt of the letter dt. 05.03.2012 given by the defendant no. 1 assuring that the results of this representation would be appropriately addressed by him. So, it is clear that the relieving order dated 05.03.2012 was given by the plaintiff subject to the claims which are sought to be recovered/enforced.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 4 of 49 2.4 Mr. Santosh Choudhary, the then head of Finance and Accounts Section, from whom the recovery was to be made, had in the meanwhile deposited the amount which was supposed to be returned by him to the plaintiff. Thereafter the defendant no. 1 joined defendant no. 2 after being relieved by the plaintiff vide letter dt. 05.03.2012 on the basis of the letter dt.05.03.2012 given by the defendant no. 1 whereby he had recognized the fact that his relieving by my client was subject to the outcome of the representation dt. 12.10.2011 given by him. The representation dt. 12.10.2011 made by defendant no. 1 was subsequently rejected vide letter dt. 14.05.2012. Accordingly, plaintiff served letter dt. 23.05.2012 on defendant no. 1 and asked him to deposit over drawn salary but to no avail. Thereafter the plaintiff was further informed vide letter dt. 09.07.2012 and 17.09.2012 to retum the amount to plaintiff but defendant filed to comply the same. Thereafter the plaintiff sent the legal notice dt. 30.07.2014 to defendant through registered post calling upon him to pay an amount of Rs. 86,866/- with 24% interest since the date of overdrawn ie. 01.06.2010 within 15 days to the plaintiff. Despite receiving the same, the defendant made no payment. Thus the present suit is filed by plaintiff on 08.09.2014 for recovery of Rs. 1,75,817/- alongwith pendente lite and future interest.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 5 of 49 3 In the written statement, defendant no. 1 took the preliminary objections that the present suit has not been validly instituted by the competent person. Secondly, the suit of the plaintiff is barred by limitation. Thirdly, there is no legal basis of the suit as the plaintiff failed to place any material on record to indicate that the Fundamental Rules (hereinafter referred as FR) much less FR 49, and other government rules are applicable to the plaintiff society and its employees.
3.1 It is further stated in the written statement that on 27.02.2009, the defendant no. 1 the then Administrative Officer (AO) was appointed by the plaintiff society to look after the duties of the post of 'Chief Administrative officer (CAO) with dual charges w.e.f 02.03.2009 till selection/joining of the Chief Administrative Officer at NBRC. Defendant no. 1 had discharged the functions and duties attached to the post of 'Chief Administrative Officer in officiating capacity for a period of more than three years w.e.f 02.03.2009 to 05.03.2012 in addition to his usual duties of Administrative officer. The appointment of the defendant on the higher post was valid and legal and only in pursuant to the office order dt. 27.02.2009 the defendant had worked on the higher post of ChiefAdministrative officer in addition to performing his usual duties on the post of Administrative officer. During this RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 6 of 49 period, the defendant had been discharging all the functions including the statutory functions attached to the post of CAO. The defendant had handled the functions and responsibilities including the statutory functions of higher post of CAO diligently and smoothly for more than three years to the utmost satisfaction of the management ensuring proper functioning, time bound completion of the assignment task, decision making well within ambit of rules and with honesty. sincerity and efficiently. Many a times defendant no. 1 had to stay bank beyond office hours and on holidays without extra remuneration or benefit from the institute.
3.2 The defendant no. 1 performed all the duties and statutory functions attached to the post of CAO at NBRC involving higher responsibilities which included the statutory functions like exercise of power derived from Acts of Parliament like Information Technology Act, as well as under Rules, Regulations, By-laws, made under various Articles of Constitution such as FRS, CCS (CCA) Rules, CSRs, DFPRs etc. in addition to his duties as Administrative Officer. The CAO in NBRC is the overall administrative in-charge of the Institute with accountability to the Director. The nature of duties performed by the defendant no. 1 were not the routine duties but were statutory and involved application of mind and decision making so as to RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 7 of 49 run the administration of NBRC smoothly. As an officiating CAO, defendant no.1 was entrusted with all the overall management of Establishment, Administration and Accounts wing, Personnel, Stores and Purchase wing, Import and Project Cell, Estate Management and Engineering Maintenance Wing, Civil, Electrical and Mechanical Maintenance. Further the defendant no. 1 was the second signatory for releasing all officials payments on behalf of the plaintiff society with proper pre- audit. As a statutory requirement, the defendant was one of the committee member in investment committee to invest surplus fund of plaintiff to earn optimum interest. As a CAO, the defendant no. 1 used to convene various meetings of NBRC as per the rules, bye-laws in terms of MoA of the plaintiff society.
3.3 On 05.03.2010, the Co-ordinating Committee of the plaintiff society in its 9th Meeting deliberated and approved the proposal placed for the payment of Salary of higher post vide Agenda Item no. 9.14. Thereafter on 10.04.2010 the then Director NBRC sanctioned the payment of three months pay of the higher post on which the defendant had officiated. The aforesaid sanction was made by the then Director after duly understanding and considering the Rule position as stipulated under FR 49 for Combination of Appointments as well the directives RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 8 of 49 of the Co-ordination Committee in its 9th meeting and the same may be seen from the note No. NBRC/Admin/SH/2010-11 dt. 10th April, 2010:
After the approval of the Competent Authority, another notice was moved from the Finance section of the plaintiff society NBRC on 30.04.2010 Indicating the actual amount payable to the defendant on account of his officiating for higher posts for a period of three months and the said amount was once again sanctioned and approved by the Director of NBRC. So due procedure was followed for payment of Rs. 86,866/- to defendant no. 1 being the difference in three months pay of higher post. The defendant had never applied for the said amount nor made any request to anyone seekingrelease of aforesaid payment being difference in three months pay of higher post. The plaintiff society on its own paid the said amount to defendant no. 1. The defendant no. 1 had resigned from the post of CAO and officiating CEO and was relieved of his duties on 05.03.2012 unconditionally for enabling him to join as Deputy Director at Export Inspector Council of India. At the time of relieving, there were 'no dues" pending against the defendant no. 1. It is reiterated that the payment made to defendant no. 1 was not covered under FR 49 as FR 49 has no application on the plaintiff society and its employees. Ever otherwise the RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 9 of 49 payment made to defendant no. 1 was squarely covered by FR- 49. Any opinion to the contrary is based upon misconstruction and misinterpretation of the FR 49. Defendant no. 1 has also denied that letter dt. 11.10.2011 the alleged order for recovery is binding upon the defendant no. 1 or the same has become final against defendant no. 1. The plaintiff has concealed the material facts that representation dt. 12.10.2011 made by the defendant no. 1 was recommended for favourable consideration by the Director Prof. Subrata Sinha himself and he had himself made a note dated18.10.2011 on the said representation to the effect that the defendant has been discharging the statutory duties of CAO and that there is no usual practice of getting governing Council/ Ministry approval for appointments.
3.4 It is further denied that defendant no. 1 had ever given any assurance or any undertaking to the effect that he will return or refund any amount paid to him by the plaintiff society. It is submitted that defendant no. 1 had issued a letter dt. 05.03.2012 on the request of the Director of the plaintiff Society and the said letter was given in good faith and was pre- dated at the request of Director of plaintiff. It is denied that said payment given to defendant no. 1 by the plaintiff society was conditional or was based on any assurance or promise made by defendant no.
1. It is denied that order for recovery has attained RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 10 of 49 finality or binding upon defendant no. 1 on rejection of his representation dt. 12.10.2011. Defendant no. 1 was never served with any letter dt. 14.05.2012 to return pay received for the higher post which was legitimately paid to the defendant. So there is no question of returning the same. All the other contents of the plaint are denied by defendant no.1."
3. The following issues were framed in the suit:
1. Whether the present suit has not been instituted by an authorized person in terms of the Memorandum of Association of plaintiff society? OPD
2. Whether the present suit is barred by limitation? OPD
3. Whether plaintiff is entitled for recovery of amount of Rs. 1,75,817/, if so, interest at what rate and for what period? OPP
4. Relief
4. The Issue No. 1 was not pressed by the defendant/respondent and was dropped as not pressed. The Issue no. 2 with respect to limitation was decided in favour of the appellant/plaintiff.
5. The Issue No.3 was decided against the appellant/plaintiff and the suit was accordingly dismissed. It would be appropriate to extract paragraphs 7.3 and 8 of the RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 11 of 49 impugned judgment in which the Ld. Trial Court has given its findings on the Issue no. 3 as well as the ultimate decision in the suit, as under:
"7.3 Issue no. 3.
Whether plaintiff is entitled for recovery of amount of Rs. 1,75,817/, if so, interest at what rate and for what period? OPP
(a) The admitted facts as come out from the pleadings of the parties are that the defendant was working as regular employee of the plaintiff on the post of AO. On account of non availability CAO, vide order dt. 27.02.2009, defendant was directed to look after the duties of CAO alongwith the work of AO w.e.f02.03.2009. The defendant continued to look after the work of both the posts from 02.03.2009 to 05.03.2012 and he was relieved from the services by the plaintiff society vide relieving letter dt. 05.03.2012. During the tenure of defendant with the plaintiff, he was paid the difference of salary (between CAO and AO) for three months, which is subject matter of present sult.
(b) It is contented by the Ld. Counsel for plaintiff that the said salary of three months was paid to defendant as per FR-49 vide agenda item No. (CCM)9.14 in minutes. of meeting of 9th co-
ordination committee dated 05.03.2016 (mark DW 1/B). On the other hand the argument of Ld. RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 12 of 49 Counsel for defendant is that the plaintiff failed to place on record any document to show that FR 49 applies to the employees of plaintiff society.
PW 1 in his cross examination has stated that he is not aware that whether there is any notification issued by the plaintiff society to the effect that FR/SR Rules which are applicable to the Government official are applicable to employees of plaintiff society. However the plaintiff society has the power of modification ofapplicability of the said rules with prior sanction of the governing council as per the procedure of the society. Further as per clause 10.1 of the MoA of plaintiff society, the rules of Central government are being made applicable to the plaintiff society.
The plaintiff has not filed any specific document as such showing that FR 49 are applicable to the employees of plaintiff society. However, the proposal for payment of three months difference in salary le the suit amount, was proposed and approved for the period 02.03.2009 to 01.06.2009 under FR 49. as clear from the Agenda Item no. (CCM)9.14 in mark PW 1/DB, extract of General Body Meeting dt. 15.12.2010 Ex. PW 1/DC, note sheet dt. 10.04.2010 Ex. DW 1/D and copy of note sheet mark DW 1/E. The PW 1 further deposed in his cross examination that the defendant had participated in the process of sanction of the said RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 13 of 49 amount as officiating CAO. So, now the defendant cannot claim that the FRs are not applicable to him and excess remuneration for the post of CAO was not paid to him under FR- -49
(c) The plaintiff has sought the excess pay from the defendant in the present suit on the strength on the opinion of the Government of India conveyed to plaintiff vide letter dt. 07.10.2011 Ex. PW 1/4. It is argued by Ld. Counsel for the defendant that the sald opinion was duły conveyed to the defendant by the plaintiff vide letter dt. 11.10.2011 Ex. PW 1/5 and the representation of the defendant dt. 12.10.2011 against the said order Ex. PW 1/4 was rejected and other representations filed by defendant also met with the same fate of rejection. The defendant has not challenged the order of final rejection of his representation made against the recovery order dt. 07.10.2011 and consequential documents/orders Ex. PW 1/8 (colly) and Ex. DW 1/PZ (Colly) in any court of competent jurisdiction. Moreover in the present case. the defendant has not sought any declaration by raising any counter claim for declaring the recovery order dt. 07.10.2011 Ex PW 1/4 as illegal and not binding on him. So, the same has attained finality qua the defendant So this court has no jurisdiction to go behind the legality of the recovery order dt. 07.10.2011 Ex. PW 1/4 (Colly), Ex PW 1/8 (colly) and Ex. PW 1/PZ RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 14 of 49 (Colly). Furthermore the plaintiff is bound by the directions of the Government ofIndia in terms of clause 4.4, 7.1.2, 7.2, 7.6,10,21,27,34 & 36 of MoA Ex. PW 1/1. So recovery order dt. 07.10.2011 is binding on plaintiff and also on defendant being ex- employee of plaintiff. tiff. On the other hand, it is contended by Ld. Counsel for the defendant that the recovery order dt. 07.10.2011 Ex. PW 1/4(Colly) conveyed to defendant vide letter dt. 11.10.2011 cannot be construed as the order binding upon the defendant. There cannot be any unilateral order of recovery which can be relied on by the plaintiff society to maintain the present suit. The plaintiff society was bound to approach the court of law to obtain the order of recovery and the powers which are vested in court of law cannot be assumed by the plaintiff society. The court cannot be treated as the Executing Court for execution of order passed by the plaintiff society.
On perusal of the letter dt. 07.10.2011 Ex. PW 1/4 it is found that department of Biotechnology, Ministry of Science and Technology. Government of India vide letter dt. 07.10.2011 only expressed the opinion that FR-49 is attached only in case of formal appointments and duties of post of CAO involve onlyusual routine day to day work of non statutory nature and thus the officer/ defendant is not entitled to additional remuneration within the definition of RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 15 of 49 the Rules. The MoA Ex. PW 1/1 shows that the autonomy of the plaintiff society is only administrative and functional autonomy and the plaintiff society is duty bound to follow the orders/directions of the Central Government. However, by way of letter dt. 07.10.2011, the Government of India only expressed its "opinion" as to applicability of FR 49 to the defendant. During the course of the arguments. Ld. Counsel for the plaintiff has also vehemently argued that on account of the undertaking given by the defendant in his letter dt. 05.03.2012 Ex. DW 1/H, the recovery order dt. 07.10.2011 becomes binding upon the defendant on his failure to challenge the same in the court of competent jurisdiction. On perusal of Ex. DW 1/H, it is found that defendant in the letter simply stated that "I would like to ensure that the outcome of the decision in this regard would be addressed properly". I do not concur with the arguments of Ld. Counsel for the plaintiff. After all the letter dt. 07.10.2011 is not a recovery order and only an opinion expressed by the Government of India. The saidopinion per se is not binding on the court. The plaintiff ought to have proved its case on merits. The said burden of proof on the plaintiff does not shift on the defendant only on account of statement made by defendant in his letter dt. 05.03.2012 Ex. DW 1/H. The plaintiff has not led RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 16 of 49 any evidence to show that FR 49 was not correctly applied to the defendant and solely relied upon the letter dt. 07.10.2011 to recover the suit amount. The opinion of Government of India as stated above is merely an opinion and is not binding at all on the court.
Further. On perusal of cross examination of PW 1 it is found that PW 1 admitted that in the representation dt. 12.10.2011 made by defendant to the Secretary, Department of Biotechnology. PW 1 given a favourable opinion in his own handwriting in favour of the defendant that his case be favorably considered as (1) Defendant has been discharging the statutory duties of CAO and (2) there is no usual practice of getting approval by Governing council/ Ministry for appointment. The said recommendation of PW 1 is mark A to A in Ex. PW 1/DD. PW1 has also admitted in the cross examination that the work of CAO is assigned to defendant alongwith the work of AO as the plaintiff society could not find any CAO. The functions are higher than AO and the functions of CAO demands a separate post and appointment as CAO requires higher decree of eligibility and experience then AO. He further admitted that defendant discharged his duties and functions as AO and CAO in a satisfactory manner. So, the plaintiff has failed to prove that the plaintiff RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 17 of 49 was not entitled to difference of pay of AO and CAO for the period of three months
(d) Ld. Counsel for the defendant has strongly contented that it is inequitable to order to defendant to return the suit amount. Any such order will violate the principal of equal pay for equal work. The defendant has worked on higher post pursuant to the order issued by the plaintiff society. He worked for the additional post of CAO for the full three years and discharged his duties on higher post to the utmost satisfaction of the management. He has been made given salary payment for the period of three months for the work done by him and the payment is not owing to any fraud or misrepresentation on part of the defendant. Ld. Counsel for defendant has relied upon the judgments of State of Punjab Vs. Rafiq Masih (2015) 4SCC 334, Shyam Babu Verma Vs. Union of India (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana, 1995 SCC (L & 5)248.
On the other hand ld. Counsel for the plaintiff has heavily relied upon the judgment of Chandi Prasad Uniyal Vs. State of Uttarakhand & Ors (2012)8 SCC 417 to contend that even without any misrepresentation or fraud on part of the defendant, the defendant cannot be allowed to pocket the amount received without authority of law.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 18 of 49 In the present case, in terms of order dt. 27.02.2009 of the plaintiff society, defendant looked after the duties of CAO alongwith the regular work of AO from 02.03.2009 to 05.03.2012. Thus the defendant looked after the additional work of CAO for almost three years. PW 1 in his cross examination has also admitted that defendant worked satisfactorily in discharge of his duties and functions as CAO. Defendant was paid only for three months for the post of CAO and for the remaining period he only got the payment of AO despite discharging satisfactorily his duties of CAO for the remaining period.
The plaintiff has nowhere shown that any steps were ever taken for full three years by the plaintiff company for getting the formal orders appointing the defendant to the additional post of CAO and now the plaintiff is seeking recovery even of the three months salary paid to the defendant for CAO on the ground that the formal order for his appointment for the post of CAO were not made. Still it is contended by the plaintiff that it is not unjust and inequitable to order the defendant to return the difference in three months salary between CAO and AO.
In Rakesh Kumar Vs. State of Haryana, (2014) BSCC 892 the matter was referred to the larger bench of Supreme Court observing the difference of RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 19 of 49 view/opinion in the judgments of Shyam Babu (supra) and Sahib Ram (supra) on the one hand and Chandi Prasd (supra) on the other hand. In State of Punjab Vs.Rafiq Masih (2014) 8 SCC 883 the said reference was answered by three judges bench of Hon'ble Supreme. Court. The Hon'ble bench of three judges found no contradictions/conflict in the views expressed by Sahib Ram & Shyam Babu judgments (supra) on the one hand and Chandi Prasad (supra) on the other. It was held that in the first two cases directions were issued in exercise of power of Article 142 of the Constitution to do complete justice but subsequent decision of Chandi Prasad Case (supra), the Hon'ble Supreme Court under Article 136 of the Constitution in laying down the law, had dismissed the petition of employees. So, it is clear that decision in Chandi Prasad case (supra) that it is not necessary to show the fraud or mis-representation on the part of the employees receiving excess pay / salary. still holds good. However, even as per the para 14 of the Judgment of Chandi Prasad (supra) the court has recognized few exceptions of extreme hardship to disallow the employer from receiving the excess salary from the employees it was held that any amount paid / received without the authority of law can always be recoverable barring few exception of extreme hardship but not as a matter of right, in such RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 20 of 49 situationslaw implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
After the answer to reference, the matter was referred back for decision to Referral Court for decision. Then the judgment was passed in State of Punjab & Ors Vs. Rafiq Masih (white washer) & Anr. (2015) 4 SCC334. Even in the said judgment, the Hon'ble Supreme Court recognized exceptions where it would be unjust to employees to order refund of excess pay to employer. The Hon'ble Supreme Court clearly stated that all circumstances of hardship where the payment have been mistakenly made by the employer to the employee cannot be postulated. So the court in para no. 18 enumerated circumstances of hardship which are not exhaustive and only illustrative. In para 18 it was held that:
"18. it is 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 entitlement. Be that as it may, based on the decisions referred to herelnabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by theemployers, would be impermissible in law:RCA DJ No. 5330 of 2016
NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 21 of 49
(i) Recovery from the employees belonging to Class III and Class IV service (or 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 recovered for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in case 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 the 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."
So it was held to be inequitable to order refund in case the employee is discharging the duties of the higher post though he should have rightfully being required to work against the inferior post. So a person who is actually working on a higher post and RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 22 of 49 getting salary of higher post though should have worked against an inferior post, was held to be entitled to retain the salary of the higher post. In the present case the plaintiff has paid only three months difference in salary of CAO and AD to the defendant when defendant has actually discharged satisfactorily the functions and duties of CAO for the full three years. So he is paid an amount for the past for which he has actually worked. Further more, he has received the salary for discharging additional duty of CAO besides AO not for the full three years but only for the three months. The judgment of Chandi Prasad (supra) is completely distinguishable on facts and does not have any applicability to the present case. In Chandi Prasad Uniyal case, the employees ie. teachers and principal were paid excess payment due to wrong fixation of 5th and 6th pay scales. So the question arose whether the excess payment made by mistake to the teachers and principal due to the wrong fixation can be recovered from the recipient. I am of the considered view that the case of the defendant is a fit case where the equity, justice & fair play precludes the plaintiff from recovering the difference of the salary amount of three months. So this issue is decided in favour of defendant.
8. Relief.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 23 of 49 In view of the above discussion present suit is dismissed. Parties shall bear their own cost. File be consigned to record room."
6. Being aggrieved by the aforesaid judgment, the appellant has filed the present appeal.
7. Ld. counsel for the appellant has submitted that the appellant/plaintiff had filed the suit for recovery since the three months' differential salary amount was paid erroneously by the plaintiff on the belief that FR-49 (Fundamental Rule-49) applied to the defendant, whereas it was actually not applicable. It is submitted that since the payment was made on an erroneous basis, the plaintiff was entitled to claim recovery of the same. It is submitted that the Ld. Trial Court has thus erred in dismissing the suit of the plaintiff.
8. Ld. Counsel has further submitted that the Ld. Trial Court had in the impugned judgment noted that the proposal for payment of three months' difference in salary was proposed and approved for the period 02.03.2009 to 01.06.2009 under FR-49 which is clear from the documentary evidence. It is submitted that however, the Ld. Trial Court ignored the letter dated 07.10.2011 Ex. PW-1/4 from the Central Government stating that FR-49 was not applicable and simply brushing aside the said letter on the erroneous basis that the same was merely an opinion which was not binding. It is submitted that the Ld. RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 24 of 49 Trial Court failed to appreciate that the plaintiff society was dutibound to follow the orders/directions of the Central Government and that the directions of the Central Government were binding of the plaintiff as well as the defendant as an employee of the plaintiff. It is submitted that the Ld. Trial Court failed to appreciate that the defendant failed to ever challenge the directions of the Central Government holding that FR-49 would not be applicable to the defendant.
9. It is further submitted that the Ld. Trial Court erred in holding that the plaintiff had failed to prove that the plaintiff was not entitled to the difference of pay of AO and COA in the period of three months. It is submitted that had the defendant been entitled to the differential pay, then the defendant would have claimed the differential pay for the entire period from 02.03.2009 to 05.03.2012. It is submitted that however, the defendant never claimed the same and this clearly goes to show that the defendant was never entitled to the differential amount. It is submitted that hence the Ld. Trial Court has made a grave error.
10. Ld. Counsel has further submitted that there was no formal appointment of the defendant which was made and hence, FR-49 did not apply, and hence the payment was not due to the defendant under FR-49, and hence, the payment made under the mistaken belief that FR-49 applied was recoverable from the defendant.
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 25 of 49
11. It is further submitted that the Ld. Trial Court failed to appreciate that even the defendant had admitted in his letter dated 12.10.2011 Ex. PW-1/6 that there was no formal appointment of the defendant under FR-49 and had requested that a formal order be issued.
12. It is further submitted that the Ld. Trial Court has erred in ignoring the decision in Chandi Prasad Uniyal v. State of Uttarakhand (2012) 8 SCC 417 and in observing that the said decision was not applicable to the facts of the present case. It is submitted that in view of the decision in Chandi Prasad Uniyal (supra) since the amount was paid erroneously to the defendant, the plaintiff was entitled to recover the same. It is further submitted that the Ld. Trial Court further failed to appreciate that a three-judges bench of the Hon'ble Supreme Court had in Rafiq Masih case (3 Judges Bench) (2014) 8 SCC 883 held that the decision in Chandi Prasad Uniyal (supra) was the correct law.
13. It is further submitted that the Ld. Trial Court further failed to appreciate that the decision in State of Punjab v. Rafiq Masih (2 Judge Bench) (2015) 4 SCC 334 which was relied upon by the Ld. Trial Court was not applicable since it was held in paragraph 18(iv) of the said decision that the recovery was impermissible only when the employee had wrongfully been required to discharged the duty of on a higher post. It is submitted that in the present case the RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 26 of 49 defendant was not wrongfully required to discharge the duties of a higher post, and as such the Rafiq Masih case (2 Judge Bench) had no applicability.
14. On the other hand, Ld. Counsel for the respondent/defendant has submitted that vide office order dated 27.02.2009, the defendant was appointed to look after the duties of the CAO in addition to the duties as the AO. It is submitted that the plaintiff had itself decided to make payment of the differential amount to the defendant, and had paid the amount to the defendant without there being any misrepresentation on the part of the plaintiff.
15. It is submitted that the plaintiff being an autonomous body was not bound by the Fundamental Rules. It is further submitted that, in any case, it was irrelevant whether the Fundamental Rules were applicable or not. It is submitted that the fact of the matter was that it was the plaintiff's own decision to make payment of the differential payment of three months' salary to the defendant. It is submitted that there was no misrepresentation or fraud which was committed by the defendant and as such the plaintiff could not turn around and seek recovery of the additional amounts paid. It is submitted that even assuming that the plaintiff had paid the amounts under some erroneous belief, since there was no misrepresentation or fraud on the part of the defendant, the Ld. Trial Court had correctly held that the plaintiff could not recover the amounts.
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16. It is further submitted that the defendant had discharged the additional duties for a period of 3 years, however, he was paid the differential amount only for a period of three months. It is submitted that it would be highly inequitable for the plaintiff to now recover the amounts from the defendant. It is submitted that the Ld. Trial Court had correctly appreciated the facts as well as the decisions cited before it and had dismissed the suit of the plaintiff. It is submitted that the present appeal is liable to be dismissed.
17. I have considered the submissions of the ld. counsels for both the parties and I have perused the record.
18. The undisputed position is that the defendant was on the post of Administrative Officer (AO) with the plaintiff. It is also the undisputed position that vide Office Order dated 27.02.2009 Ex.PW-1/DA, the plaintiff directed that the defendant would look after the duties of the post of Chief Administrative Officer (CAO) in addition to his duties as AO with effect from 02.03.2009 till the selection/joining of the CAO with the plaintiff. It is also the undisputed position that the defendant carried out the duties of CAO in addition to his duties as AO for almost 3 years from 02.03.2009 till 05.03.2012.
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19. It is also the undisputed position that it was the plaintiff's own decision to make payment of the differential amount of pay of CAO and AO to the defendant for a period of 3 months.
20. In its 9th meeting held on 05.03.2010, the Coordination Committee of the plaintiff had on its agenda the issue of payment of officiating allowance/salary to the officials who were officiating on higher posts. The Coordination Committee suggested to go as per the Government of India Rules. The relevant agenda and the suggestion of the Coordination Committee in its 9th meeting held on 05.03.2010 is extracted hereunder:
"ITEM NO. (CCM) 9.14: REQUEST SOUGHT AS REGARD TO PAYMENT OF OFFICIATING ALLOWANCE/SALARY FOR NBRC OFFICERS OFFICIATING THE HIGHER POST.
As the posts of C.A.O. and F.A.O. are vacant at NBRC, A.O. and D.F.O. have been authorized to look respectfully these higher posts with statutory functions in officiating capacity. As per rule FR-49 the incumbents who have been authorised/appointed to officiate the post with statutory functions shall be allowed the pay of the higher post for a period not exceeding three months. Further the period of the charge is exceeding 3 months, the concurrence of the DoPT/JS(F&A) may be obtained. The kind RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 29 of 49 approval of the Co-ordination committee is sought for releasing the salary of the higher post for the officials concerned."
"ITEM NO.(CCM) 9.14: REQUEST SOUGHT AS REGARD TO PAYMENT OF OFFICIATING ALLOWANCE/SALARY FOR NBRC OFFICERS OFFICIATING AT HIGHER POSTS.
The Coordination Committee suggested to go as per the Govt. of India rules on the subject matters and any deviation in this regard may be taken up with the ensuing Governing Council meeting."
21. Pursuant to the aforesaid suggestion of the Coordination Committee of the plaintiff, the plaintiff society commenced the process of payment of the salary of the higher post to the officers who were officiating on the higher post.
22. Vide the relevant office noting dated 10.04.2010 Ex.PW-
1/DB, the approval of the director of the plaintiff was sought for grant of additional pay to the defendant. The office noting is relevant since it records the reasons why the plaintiff was seeking to grant 3 months' salary in higher post to the officials such as the defendant who were officiating on a higher post in addition to their own post. The office noting is extracted hereunder:
RCA DJ No. 5330 of 2016NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 30 of 49 "Subject:Grant of Pay of the highest post in case of Combination Appointments-reg.
The group 'A' post of Chief Administrative Officer and the Finance & Accounts Officer fallen vacant due to the resignation of the incumbents in the post for quite some time. The vacant posts were advertised as per the Recruitment Rules for selection of suitable candidates as detailed herein.
The post of Chief Administrative Officer was fallen vacant with effect from 19th August, 2008. Accordingly the post was advertised in the leading national dailies as well in Employment News vide Advt. No.4/2008 and on selection of a candidate the offer of appointment was sent in September, 2008 however the selected candidate din't report for duty, hence the post was offered to a wait listed candidate who also din't join. The post was re-advertised vide no. 6/2008 and no one were found suitable. Again the post was advertised vide no. 1/2009 and the selected candidate din't join. The post was re- advertised for the fourthe time vide no.3/2009 and the screening of applications is in progress.
The post of Finance and Accounts which fallen vacant with effect from 17h June, 2009 and the same was advertised vide no.2/2009 and the recruitment is under progress.RCA DJ No. 5330 of 2016
NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 31 of 49 As these are very important positions in the organisation and could not be kept vacant for long the competent authority has identified suitable officers available within the organisation to function as CAO & FAO for the smooth function and running the organisation. Accordingly the post of CAO was entrusted to the Administrative Officer and the post of FAO to the Deputy finance officer as additional charge to function with statutory functions and responsiblities of the higher post with effect from 2nd March, 2009 and 17 June, 2009 to till date respectively till the joining of new official in the said posts.
The combination of Appointments has been examined with reference to the Rule FR 49. As per FR 49 (iii) the rule states that "where a Govt. servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the competent authority reduces his officiating pay under rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post, and where a Govt. servant is formally appointed to hold dual charges of two posts in the same cadre in the same office carrying identical scales of pay, no additional RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 32 of 49 pay shall be admissible irrespective of the period of dual charge. The payment of such officiating pay is not permissible;"
As per rule 49 (iii) the Rule stipulates that "where a Govt. servant is formally appointed to hold charge of another post or posts which is or are not in the same office, or which, though in the same office, is or are not in the same cadre/line of promotion, he shall be allowed the pay of the higher post, or of the highest post, if he holds charge of more than two posts, in addition ten percent of the presumptive pay of the additional post or posts, if the additional charge is held for a period exceeding 45 days but not exceeding 3 months: provided that if in any particualr case, it is considered necessary that the Govt. servant should hold charge of another post or posts for a period exceeding 3 months, the concurrence of the Department of Personnel and Training shall be obtained for the payment of the additional pay beyond the period of 3 months".
The grant of officiating pay to Shri Kannan, AO and Shri Santosh, DFO for discharging the duties of CAO & FAO with statutory functions and obligations of the higher post in addition to their duties during the period from 2.3.2009 & 17.6.2009 to till date respectively was taken up in the ninth Co-ordination Committee meeting vide agenda item no.9.14 held at DBT, New Delhi on 5th March, RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 33 of 49 2010 and the committee suggested to go as per the Govt. of India Rules on the subjted matters and any deviation may be taken up the governing council.
In view of the above rule position and also the fact that, the two officers are rendering their services to the organisation for more than a year in one case and almost a year in another case and are handling the entire functions including the statutory duties attached to the higher post for which they are officiating very smoothly and deligently. The work is being discharged with utmost satisfaction of the management ensuring proper functioning, time bound completion of the assigned task, decision making well withi the ambit of rules, maturity, honesty, sincerity and hard working. As these higher responsibilities are in addition to the regular duties they had to work beyond office hours on almost all days and also rendered services during the holidays without any remuneration or benefit from the organisation. The above cases may be considered for the payment of pay of the highest post held in officiating capacity ie. CAO & FAO to the concerned officers respectively for a period of 3 months.
The Institute has considered the services rendered by some of the officials even in the same capacity and rewarded them suitably for the contribution of their services in the past. However in the present RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 34 of 49 case the roles and responsibilities discharged by the above officers are of higher posts and may be considered as per the rules in vogue.
Considering the above facts, Director may kindly decide as regard to grant of pay of the highest post for a period of three months in the above cases for rendering the services as an appreciation towards their contributions made during the above period of their service.
Submitted for the kind perusal and orders of the Director."
(Emphasis supplied by me)
23. The director of the plaintiff approved the payment to the defendant of 3 months' pay in the higher post in which the defendant was officiating. The director also directed that the issue regarding enhanced pay for the other months may be placed before the Governing Council for approval/ratification. The approval given by the director of the plaintiff (also part of Ex.PW-1/DB) is extracted hereunder:
"Director: The matter is hereby approved for payment to each officer the 3 months' pay in the higher post in which he has offficiated. Enhanced pay for the other months, as mentioned in the GOI Rules may be put to G.C. for approval/ratification."RCA DJ No. 5330 of 2016
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24. Consequently, the defendant was paid 3 months' salary of the higher post.
25. The matter was also placed before the Governing Council of the plaintiff for its decision for payment of special allowance to the officers who were given additional charge of higher post. The payment of special allowance was approved by the Governing Council in its 27th Meeting held on 15.12.2010, the minutes of which are in Ex.PW- 1/DC. The relevant agenda and the suggestion of the Governing Council in its 27th Meeting on 15.12.2010 is extracted hereunder:
"27TH GC AGENDA Item No.27.13: Request for payment of special allowance to officers who were given additional charge of higher post.
Some of the officers of this Institute are given the additional charge of a higher post having higher responsibilities and are required to discharge all the duties of the higher post including the statutory functions in addition to their usual charge of the post for which they were appointed. In order to motivate and to keep up the morale of such officers in efficient discharge of their duties and responsibilities who have been holding this additional charge of higher post for more than three RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 36 of 49 months. It is requested to consider for the payment of a special pay at fifteen percent of their respective pay per month as a allowance from the savings of salary accrued against the vacant position to the officers who are working very hard, this will not only boost their morale to perform better it also justifies extraction of work from such officers who are really putting in efforts to clear pending work by working till late evening as well on holidays. Pl. refer Annexure-XV.
Governing Council may kindly consider and approve the same."
"27TH GC MINUTES Item No.27.13: Request for payment of special allowance to officers who were given additional charge of higher post.
The Governing Council discussed the same in detail and approved the proposal for payment of special allowance to officers who were given additional charge of higher post for more than three months as per existing government rules.
26. Subsequently, a complaint was made by one Mr. Mahender Kumar Singh, Information Scientist alleging that the defendant and another official Mr. Choudhary had RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 37 of 49 themselves assumed the charge of the higher posts and were irregularly drawing 3 months' officiating pay which was not as per rules. An inquiry committee was set up by the plaintiff to inquire into the complaint and give its report. The inquiry committee submitted its report dated dated 06.09.2011 Ex.PW-1/3.
27. In the report Ex.PW-1/3, the inquiry committee observed that the defendant did not assume charge of the higher post by himself. Further, in respect of the salary payment under FR-49, the committee observed that it was not able to come to any decision particularly in view of the expert's comments and recommended that the matter may be referred to the controlling administrative office for clarification.
28. The matter was thus referred to the Department of Biotechnology, Ministry of Science and Technology, Government of India for its opinion. The Department of Biotechnology through its letter dated 07.10.2011 Ex. PW- 1/4 gave its opinion stating that FR-49 was not attracted in the present case since there was no formal appointment, and also stated that the additional remuneration provided to the officials may be recovered. This opinion dated 07.10.2011 is extracted hereunder:
"Please refer to your letter dated 5th September forwarding the copy of the report of enquiry on the grievance received from Mr. RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 38 of 49 Mahender Kumar Singa, Information Scientist, NBRC registered with the Department of Administrative Reforms and Public Grievances (DARPG) & the Central Vigilance Commission (CVC), regarding complaint against Mr. Kannan Kasturi (Administrative Officer, NBRC) and Mr. Santosh K. Choudhary (Dy. Finance Officer, NBRC).
2. It is hereby informed that w.r.t. Point 1 of the report (pertaining to payment of higher salary of the officiating posts to the above officials), the opinion of this Department is as follows:
'FR 49 is attracted only in the case of formal appointments which means fulfillment of the eligibility conditions, approval by the Governing Council/Ministry etc. In the case of Mr. Kannan Kasturi, no formal appointment appears to have been made as the office order mentions nothing as such except "will look after the duties of CAO in addition to his usual duties". Therefore, higher pay cannot be given. Similar is the case of Mr. Santosh K. Choudhary. It is pertinent to mention in this connection that the duties of both posts involve only usual routine day-to-day work of non- statutory nature and therefore, the officers are not entitled to additional remuneration within the definition of the Rules. In view of the foregoing, the additional RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 39 of 49 remuneration provided to the above officers may be recovered from them.'
3. This is for your information and further necessary action at the earliest. An action taken report may also be submitted to this Department. The complainant, Mr. Mahender Kumar Singh, may also be suitably informed of the action taken upon the complaint."
29. It is only consequent to this that the plaintiff called upon the defendant to make repayment of the differential amount of salary of 3 months in respect of the higher posts.
30. Upon this, the defendant vide letter dated 12.10.2011 Ex.PW-1/6 to the Secretary, Department of Biotechnology requested for review of the stand taken for recovery of the pay made to the defendant and informed that he had not only discharged routine duties but had also discharged the functions attached to the post of CAO including statutory functions in officiating capacity under the administrative control of the director.
31. Importantly, the director of the plaintiff also gave his recommendation dated 18.10.2011 (which is also part of Ex.PW-1/6) in which he recommended that the case of the defendant be considered favourably since he had been discharging statutory duties of the CAO and there was no usual practice of getting Governing Council/Ministry RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 40 of 49 approval for appointment. The recommendation of the director is extracted hereunder:
"Recommended for favourable consideration because:
1. The officer has been discharging the statutory duties of a Chief Administrative Officer.
2. There is no usual practice of getting the Governing Council/Ministry approval for appointments."
(Emphasis supplied by me)
32. The Department of Biotechnology, Ministry of Science and Technology, Government of India vide communication dated 14.05.2012 communicated to the plaintiff that the representations made by the defendant had been considered and that it was once again being conveyed that the Department was of the opinion that since there was no formal appointment, the provisions of FR-49 would not be applicable. The communication dated 14.05.2012 Ex.PW- 1/7 is extracted hereunder:
"Please refer to your communication dated 27th April 2012, forwarding the representations made by Shri. Kannan Kasturi NS, Administrative Officer, NBRC and Shri. Santosh K. Choudhary, Dy. Finance Officer, NBRC w.r.t the instructions provided by this Department regarding recovery of officiating pay paid to them.RCA DJ No. 5330 of 2016
NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 41 of 49
2. In this regard, this is to inform you that the representations made by the NBRC officials concerned were duly considered by this Department and it is once again conveyed that since no formal appointments have been made, the provisions of FR 49 does not apply in this case and the opinion of this Department on the matter is reiterated as follows:
'FR 49 is attracted only in the case of formal appointments which means fulfillment of the eligibility conditions, approval by the Governing Council/Ministry etc. In the case of Mr. Kannan Kasturi, no formal appointment appears to have been made as the office order mentions nothing as such except "will look after the duties of CAO in addition to his usual duties. Therefore, higher pay cannot be given. Similar is the case of Mr. Santosh K. Choudhary. It is pertinent to mention in this connection that the duties of both posts involve only usual routine day-to-day work of non-statutory nature and therefore, the officers are not entitled to additional remuneration within the definition of the Rules. In view of the foregoing, the additional remuneration provided to the above officers may be recovered from them.'
3. In view of the above, you are requested to convey the decision of the Department on their representations to Shri. Kannan Kasturi NS and Shri. Santosh K. Choudhary and take necessary RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 42 of 49 action to recover the officiating pay paid to them, at the earliest. An action taken report may also be submitted to this Department."
33. Pursuant to this, vide Office Memorandum dated 23.05.2012 Ex.PW-1/8, the plaintiff called upon the defendant to deposit the differential salary of 3 months' which was earlier paid to the defendant.
34. The record of the plaintiff shows that the decision to make payment of 3 months' salary on the higher post was made by the plaintiff after due deliberation. The plaintiff took into consideration that the officials working on the higher posts, including the defendant, were rendering their services for almost a year and were handling the entire functions including the statutory duties attached to the higher post and that they were officiating smoothly and diligently. The plaintiff also took into consideration that the work was being discharged with utmost satisfaction of the management. The plaintiff also considered that the higher responsibilities were in addition to the regular duties and the officials had to work beyond office hours on almost all days and also rendered services during the holidays. In these circumstances, the plaintiff took the decision to grant 3 months' pay to the officials officiating on the higher post including the defendant to boost the morale and motivation of the officers who were officiating on the higher post in addition to their own posts. It is for this reason that the Coordination Committee of the RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 43 of 49 plaintiff suggested for grant of the pay of three months on the higher post and which came to be approved by the director. Not only this, but the Governing council of the plaintiff also approved payment of special allowance to these officials who were working on the higher post.
35. The entire case of the plaintiff is essentially based on the communication dated 07.10.2011 from the Department of Biotechnology in which it was opined that FR-49 would not be attracted since the defendant was not formally appointed to the higher post meaning that there was no approval by the governing council/ministry and that the post involved only usual routine day-to-day work of non- statutory nature, and therefore, the officers were not entitled to additional remuneration.
36. However, in light of the recommendation dated 18.10.2011 Ex.PW-1/6 from the director of the plaintiff it is revealed that the communication dated 07.10.2011 from the Department of Biotechnology failed to consider important aspects.
37. The director of the plaintiff in his recommendation dated 18.10.2011 clearly stated that the defendant was discharging statutory duties of CAO and also that there was no usual practice of getting governing council/ministry approval for appointment. This recommendation was sent to the Department of RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 44 of 49 Biotechnology along with the defendant's request dated 12.10.2011 for review of the stand taken regarding recovery of the pay.
38. The Department of Biotechnology vide its communciation dated 14.05.2012 again took the same stand as in its earlier communication dated 07.10.2011 stating that there was no formal appointment since there was no approval by the governing council/ministry and that the post involved only usual routine day-to-day work of non-statutory nature. A perusal of the communication dated 14.05.2012 shows that the department really parroted what had been stated in its earlier communication dated 07.10.2011 without taking into account the inputs and recommendation dated 18.10.2011 made by the director of the plaintiff. The plaintiff's director had in his recommendation dated 18.10.2011 very clearly informed the Department of Biotechnology that the defendant was discharging statutory duties of CAO and also that there was no usual practice of getting governing council/ministry approval for appointment. However, all this was not considered by the department as is clear from the department's communication dated 14.05.2012.
39. Thus, the communication dated 14.05.2012 whereby the representation of the defendant was rejected was clearly without application of mind since the recommendation of the director which was very crucial was not even RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 45 of 49 considered by the department. The department failed to consider that as per the plaintiff's own case as seen from the plaintiff's director's recommendation, the defendant was not carrying out only non-statutory routine day-to-day work on the higher post but was carrying out statutory duties of CAO and also that there was no usual practice of getting governing council/ministry approval for appointments. Thus, when the communication dated 14.05.2012 from the department suffered from non- application of mind and did not consider the relevant inputs given by the plaintiff's director, any claim for recovery based on this communication cannot be sustained. The office memorandum dated 23.05.2012 issued by the plaintiff calling upon the defendant to deposit the three months' salary differential on the higher post was only based on the communication dated 14.05.2012. Having held that the communication dated 14.05.2012 from the department was unsustainable suffering from non-application of mind, the consequent office memorandum dated 23.05.2012 issued by the plaintiff cannot also be sustained.
40. Hence, the plaintiff cannot claim recovery of the differential amount of salary of 3 months' which was paid to the defendant and the suit was correctly dismissed by the Ld. Trial Court.
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41. Even otherwise, in my opinion, in the peculiar facts and circumstances of the case, applying the ratio of Rafiq Masih case (2 Judges Bench) it would be inequitable to permit the plaintiff to recover the amounts from the defendant. In Rafiq Masih case (2 Judges Bench), the Hon'ble Supreme Court held that recovery of monetary benefits by the employer would not be permissible which would result in hardship of such a nature as would outweigh the employer's right to recover. In paragraph 18 of the decision, the Hon'ble Supreme Court observed that it was not possible to postulate all situates of hardship, but gave some situations in which recoveries would be impermissible in law. In paragraph 18(v), the Hon'ble Supreme Court gave the following residual situation in which the recovery would be impermissible:
"(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."
42. I find that the facts of the present case are such that permitting recovery would be grossly iniquitous, harsh and arbitrary. It is undisputed that the defendant had worked on the higher post for almost 3 years, whereas he was paid the salary of the higher post only for 3 months. It is also RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 47 of 49 undisputed that the decision to make payment of the salary of the higher posts for 3 months was the plaintiff's own decision without there being any misrepresentation by the defendant. It is also clear from the record that this decision was taken by the plaintiff after due deliberation and after considering that the defendant was diligently working in officiating on the higher post and was giving long hours of work and was working extra hours on working days and also working on holidays. The claim for recovery was made by the plaintiff only after the communication dated 07.10.2011 from the Department of Biotechnology informing that FR-49 did not apply as there was no formal appointment as there was no governing council/ministry approval for the appointment and that the defendant was only carrying on routine day-to-day non-statutory work. To this, the defendant made a request to the Department of Biotechnology for review of this stand. The plaintiff's director supported the request of the defendant and also gave his recommendation in which it was categorically mentioned that the defendant was carrying out statutory duties as CAO and also that there was no usual practice of getting governing council/ministry approval for appointments. However, the inputs and recommendation given by the plaintiff's director were completed ignored by the Department of Biotechnology and the defendant's representation/request for review was declined vide the communication dated 14.05.2012. This was a case of non- application of mind by the Department of Biotechnology RCA DJ No. 5330 of 2016 NATIONAL BRAIN RESEARCH CENTRE Vs. KANNAN KASTRUI NS Page No. 48 of 49 since the recommendations and inputs of the plaintiff's director which were crucial were neither referred to nor considered in the communication dated 14.05.2012. As such, the communication dated 14.05.2012 was unsustainable. The consequential office memorandum dated 23.05.2012 issued by the plaintiff based on the communication dated 14.05.2012 thus also was unsustainable. In these facts and circumstances, it becomes grossly inequitable, harsh and arbitrary to permit recovery by the plaintiff of the three months' pay differential from the defendant.
43. Hence, the suit was correctly dismissed by the Ld. Trial Court and the appeal is without merit. In the result, the appeal fails and is, accordingly, dismissed.
44. Costs of Rs.45,000/- are granted to the respondent against the appellant.
45. Let the decree-sheet be prepared accordingly.
46. File be consigned to record room after due compliance.
47. Let the TCR be returned to the Ld. Trial Court.
Digitally signed by Satyabrata Satyabrata Panda Panda Date: 2024.08.22 17:24:04 +0530 (SATYABRATA PANDA) District Judge-04 Judge Code- DL01057 PHC/New Delhi/22.08.2024 RCA DJ No. 5330 of 2016
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