Central Administrative Tribunal - Jaipur
Om Prakash Tripathi vs M/O Science And Technology on 29 October, 2021
CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR Original Application No. 274/2017 Order reserved on: 20.10.2021 CORAM: Hon'ble Mr. Dinesh Sharma, Administrative Member Hon'ble Mrs. Hina P Shah, Judicial Member Om Prakash Tripathi S/o Shri Sukh Dev Tripathi aged around 58 years, R/o VII/3, Vidhyadhar Nagar, Jaipur (Raj.); presently posted as Add. Surveyor General, survey of India, Jaipur Gr. 'A' _. Applicant. (By Adv: Shri C.B. Sharma) VERSUS 4, Union of India through its Secretary, Ministry of science Technology, Department of Science technology, Technology Bhawan, New Mehrauli Road, New Delhi . 2. Surveyor General, Survey of India, Hathi Barkala Estate, Post Box No. 37, Dehradun, Uttrakhand- 248001. ..Respondents. (BY Adv: Shri L.M. Bhardwaj) Order Per: Dinesh Sharma, Member (A)
In this Original Application the applicant has prayed for quashing the orders at Annexure-A/1 to A/3 so far as they Po bo | | | 2 OA No. 274/2017 relate to the applicant and not to initiate any recovery in the matter of payment of Transportation Allowance (TA) @ Rs.
7000+D.A. The matter, very briefly put, is twofold. It is:
a) about eligibility of officers, having non-functional upgradation (NFU) to the grade pay of Rs 10,000, to draw TA @ 7000+DA,; and,
b) if not eligible, their liability to refund if they have already drawn it. The applicant states that he was getting the higher TA, i.e. Rs 7000 + DA till 31/3/2016. He has stopped drawing this higher TA (and is getting TA @Rs. 3200 + DA) after receiving the communication dated 21/03/2016.
There was no communication before that that only person actually posted as JointSecy would be entitled. Therefore, there is no question of any recovery. The applicant has quoted the judgment of the Hon'ble Supreme Court in Rafiq Masih case. It is stated that the condition no. 3 (amongst situations where this judgment found the recoveries of excess amounts paid to any government servant irrecoverable) disapproves such recovery when the employee is getting some benefits for more than five years. The recovery also violates principles of natural justice.
3OA No, 274/2047
2. The respondents have denied the claim of the applicant. It is stated that the drawing of TA at the higher rates was not correct and an audit objection was raised when the internal audit wing of the Department conducted audit of the Rajasthan Geo- spatial Data Centre. The applicant 1s not entitled to draw TA at the higher rate as he is functioning as Director/DSG only and not as Additional Surveyor General. The applicant has agreed with this audit objection and has stopped drawing the higher rate of TA. He is duty bound to refund the excess drawn in the past. The reply also mentions (and annexes at Annexure-R/8) an undertaking given by the applicant that any excess payment that may be found to have been made due to incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by» him.
3, The Tribunal stayed, by way of an interim order, the recovery of alleged excess TA drawn by the applicant. The applicant filed another additional affidavit, reiterating his claims, and mainly, to give details of the judgment of the Hon'ble Supreme Court in Jagdev Singh's case (Annexure- MAR/2): This affidavit gives detailed argument to show how the facts, circumstances and the undertaking given in that case are different from the facts, circumstances and the undertaking (Annexed as Annexure-R/8 with the reply of the respondents) given in the present case.
4. The matter was finally heard on 20.10.2021. Both the learned counsels, besides repeating the arguments mentioned in their respective pleadings, presented a compendium of judicial/CAT pronouncements on to support their respective arguments. We are listing all these citations here:
a. Judgements relied by learned counsel for the applicant:
i) O.A. No. 291/030/2016 and other connected matters titled Girish Malhotra Vs. UOI & Ors decided on 17.11.2017. |
ii) p.B.C.W.P. No. 6387/2015 titled Prakash Chandra Bothra Vs. Union of India and Ors.
decided on 06.04.2017 by the Hon'ble High Court of Rajasthan.
iii) CWP No. 8534/2016 titled Satish Manchanda and another Vs. State of Haryana and others decided by the Hon''ble Punjab and Haryana High Court on 16.12.2016. |
iv) W.P. No. 20068(W) of 2017 titled Shyam Sundar Jana Vs. The State of Bengal & Ors decided bby the Hon''ble Calcutta High Court on 18.12.2017.
v) W.P. No. 5937/2016 titled Rajendra Prasad Pandey Vs. The State of M.P. & Ors decided by the Hon'ble High Court of M.P. on 06.02.2018.
vi) W.P. No. 2395/2017 titled Vijay Shankar Trivedi Vs. The State of Madhya Pradesh & Ors decided by the Hon''ble High Court of M.P. on 17.01.2018.
vii) C.M.W.P. No. 16472/2018 titled Rajendra Prasad Pandey Vs. State of U.P. Thru Secy. Agriculture & Ors decided by the Hon'ble High Court of Allahabad High Court on 27.09.2018.
viii) W.P. No. 5555/2013 titled Union of India & Anr Vs. J.S. Sharma and Ors. Decided by the Hon'ble High Court of Delhi on 04.09.2013.
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xi) 5 OANo, 274/2017 State of Punjab v. Rafiq Masih" reported in.
(2015) 4 SCC 334 Syed Abdul Qadir & Ors Vs. State of Bihar & Ors. in Civil Appeal No. 3351-3354/2003 decided by the Hon'ble Supreme Court on 16.12.2008.
W.P. No. 5951 of 2019 titled Union of India, Department of Science and Technology Vs. T. Sanjeev Kumar decided decided by the High Court of Telangana on 22.03.2019.
Judgements relied by learned counsel for the respondents:
i)
iii)
vi)
vii)
viii)
ix) O.A. No. 060/120/2019 titled Chandra Pal (through Lrs) Vs. Union of India & anr decided by C.A.T., Chandigarh Bench, Chandigarh on 02.03.2021.
O.A. No. 633/2016 titled Dr. Sukanta - Chandra Das Vs. Union of India & Ors decided by the C.A.T., Cuttak Bench, Cuttak on 24.01.2020.
Civil Appeal No. 3500/2006 titled High Court of Punjab & Haryana & Ors Vs. Jagdev Singh decided by the Hon'ble Supreme Court on 29.07.2016.
O0.A. No. 3791/2015 titled Alok Saxena vs. Union of India decided by C.A.T, Principal Bench, New Delhi on 16.11.2018.
W.P. No. 7885/2016 titled Walmik Vs. State of Maharashtra & Ors decided by the Hon'ble High Court of Bombay on 13.02.2018. | O0.A. No. 180/00733/2016 titled Dr. K.P. Hamzakoya & Ors Vs. Union of India & Ors.
decided by the C.A.T., Ernakulam Bench on 25.02.2019.
O0.A. No. 3885/2016 titled Dr. Shashi Vashisht Vs. UOI & Ors. decided by the C.A.T., Principal Bench, New Delhi on 01.10.2018.
O.A. No. 285/2018 titled Prabhas Ranjan Pradhan Vs. Union of India & Ors. decided by C.A.T., Cuttack Bench on 11.02.2019.
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5. After going through the pleadings and hearing the arguments, it is clear that the applicant has no serious dispute about the (in)eligibility to claim the higher TA. He has himself stopped drawing it after he was informed about it. The issue that remains isthe matter of recovery of what he has already drawn. On this issue also, the arguments are fairly simple and straightforward. The applicant claims applicability of the judgment of the Hon'ble Supreme Court in the famous Rafiq Masih (also known as the whitewasher) case, which was later incorporated in a Government decision, to seek exemption from recovery. The respondents claim that another apex court judgment, (the Jagdev Singh case) is the one applicable on the facts and circumstances of this case, in the light of the undertaking given by the applicant: Very briefly put, the Rafiq Masih case makes recovery impermissible under certain conditions (low paid employees: longer period of excess payment, recovery close to or after retirement, work against a higher post, inequity due to any other reason). The Jagdev Singh case makes an exception to this "no recovery rule" if an undertaking has been gi yen by the employee to have any excess recovered.
The applicant denies the application of Jagdev Singh exception On the facts of his case. He has detailed the differences with that judgment in an additional affidavit y be with a belief that such sworn statement may carry 7 OA No. 274/2017 more weight and add weight to the strength of his argument in such sworn statement. (It may not necessarily be so).
6. Going through the judgments/pronouncements of this Tribunal cited by the learned counsels of both the parties, we find that this matter (regarding higher TA @ Rs.
7000+DA by officers having NFU to the grade pay of Rs.
40000/-, and its subsequent recovery), in almost identical circumstances, has already been dealt with by this (Jaipur) and other benches of this Tribunal. However, the outcome of these cases has not been identical. In this situation, it would not be correct on our part to go freshly into the merits of the d come to our own conclusion, thereby confounding the already created confusion on this issue. It would be ropriate to find and follow the decision which is which has been taken after considering all the relevant facts are brought before us. This exercise leads us to first short list those decisions where the issue is exactly that of claiming higher TA of Rs. 7000+DA by those who got NFU and its subsequent recovery. These decisions are further sub-divided into decisions where recovery was allowed and where it was not allowed.
5. pecisions (on matters of recovery of TA 7000+DA drawn by officers on NFU), where recovery was not allowed:
aan eer aens «eae Dr Girish Malhotra Vs Uol and Ors CAT Jaipur, Single Bench decision dated 27.10.17: In this case the learned Member quashed the order of recovery, basing its judgment on the earlier Division Bench decision of the same Bench (in Ashok Prim VS. Union of India). It found the judgment of the Jagdev Singh's case not applicable since the undertaking was given almost 2 decades back and could not be compared to the undertaking given in Jagdev Singh's case.
The decision of the Telangana High Court in W.P. No 5951 of 2019: In this case the Hon'ble High Court upheld the decision of CAT, Hyderabad, which had found Rafiq Masih and not Jagdev Singh applicable to the facts of that case. The Hon'ble High Court order specifically mentions the Jagdev Singh case being not applicable to that matter of Transport Allowance. The case related to release of gratuity from which the amount to alleged excess drawn amount was withheld. Since the facts of that case are not given in detail in the Hon'ble High Court decision, it is not possible for us to arrive at any definitive conclusion about whether the facts of that case are identical to that of the case before us.
Union of India Vs JS sharma and ors (H.C of Delhi in WP(C) 5555/2013: In this case, the Hon''ble High Court upheld the decision of the CAT Principal bench dis-allowing recovery relying on the ratio of Syed Abdul Kadir Vs State of Bihar (2009) 3 SCC 475. There is no discussion of Jagdev Singh case or any undertaking in this case.
9QA No, 274/2017 (on matters of recovery of TA 7000+DA g, The decisions fficers on NEU), where the recovery was allowed:
drawn by 9 pr SC Das Vs M/o These Cuttack decisions are on cases of almost identical facts in the an Labour vent Ministry/department of Health Eme ye and Family Welfare. That (Cutta bench dismissed the claims of the applicants therein, Dr P vg Uol an including the claims against pradhan K) recovery, after discussing 5 (Cuttac both the Rafiq Masih and the Jagdev Singh case.
hi yashisht In these two decisions, the r. shas 4 others Principal Bench found, after vs Uol ' ench citing and discussing both the (principe od Rafiq Masih case and the decision 3) Jagdev Singh case, and (in 110/20 4 Vs the second case, almost alok 94 oe power entire case law available till ministry ench date) recovery permissible princip ved and denied the request for decision, dat refund of amount already 6/11/2018) deducted from the gratuity on pr. K.P: Ham account of such excess drawn TA.
zakoya and others Vs UOI and others Ernakulam decision dated 25/2/2019):- This , almost on similar facts, found Rafiq se or any undertaking is not discussed in it).
andra pal Vs. Union of India (CAT Chandigarh):-
this decision is the most recent case amongst those produced before us. The ,facts are almost 10 identical. It discusses the Rafiq Masih case and also : the Jagdev Singh case and finds the Jagdevsingh's | case applicable on ground of an undertaking similar to the one given in the present case. Though there may be a difference w.r.t the claim of drawing the excess claim for more than 5 years (it was not conclusively found to be so in that case), distinguishing this case with that solely on that ground would be incorrect. It is because this was not the sole ground on which that case was found not covered by Rafiq Masih case. It gives a number of other reasons (the applicability of Jagdev Singh judgment for having given the undertaking, these being general orders applicable to all similarly placed persons, the applicant being group A officer, ese reasons are applicable on the facts of etc). All th the case resent before us also. since the decision did find the Jagdev Singh case applicable and _ it to be applicable to the facts of that case, with almost identi cal facts with the facts of the case before us.
we nave shortlisted the cases directly on this subject
3. on a brief summary of the decisions only in order to and giv© 'ot 2 mentioned before, that the matter has show, ihe attention of the C.A.T. and it has been decided engag& . Himes- therefore, it would be wrong for us to a number ° ne 11 QA No, 274/2017 decide the same matter again and come to another n. We only have to see whether these cases fit on acts and circumstances of the case before us and we esitation In concluding that they do. In all these who belonged to group A grade, had e TA which they were found not entitled to. The its genesis in the Pay commission's he officers had given an undertaking y excess amount was claimed/paid to them dations. Since these decisions have ev singh to be applicable to icant cannot claim exemption on any of r Rafiq Masih (including that of the tribunal has come to the ecovery of higher TA found to have not applicable. It is true that there case 0 n decisio ons where such recovery was not . (listed in paragraph 07 above) were Suc into consideration the decision in without 3.g. that of Hon'ble High Court of Delhi y ging" S ; upra, being older than Jagdev Singh's spar ad from that case since the undertaking gu : gistin9 cn mathotra Vs Uol (supra)). The only cairls 7.
12OA No, 274/2057 n which, after discussing Jagdev Singh's case, found licable, is that of Hon'ble High Court of decisio it to be not apP (discussed in para 7.(b) above). With so many Telangana s of the other Benches of this Tribunal, in other decision of almost ident usion, about inapplicability of Rafiq Masih and ical facts, coming to the entirely very on various grounds including that ity of jagdev Singh), it would be wrong for us to of applicabillt ur decision entirely on the Telangana judgment. It is base 9 o since that jud especially S gment was passed in a writ upholding the decision of the CAT under nces which we are not made fully aware of. Making in a general matter, without any strong s for such distinction, is certainly not just.
ind ourselves in agreement with the Bench, the Cuttack Bench, The ginding> Bench and the Chandigarh Benches of this rripun4 which fron al Application. Consequently, we cannot grant the facts and circumstances of the e by the applicant in this Original the P igi ication | ne original Application is, therefore, dismissed.
4 be n° orders regarding costs.
shan) cr (Dinesh Sharma) Member (A) L