Central Administrative Tribunal - Jabalpur
Radhe Shyam vs D/O Postal on 18 April, 2022
1 O.A.No. 200/01141/2019
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/01141/2019
Jabalpur, this Monday, the 18th day of April, 2022
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Radhe Shyam, S/o Shri Kishun, Aged about 76 years,
Ex-Head Mailman, R/o 1257, ITI Nai Basti, Marhotal
Jabalpur (MP)-482002, Mobile No. 7869251035 -Applicant
(By Advocate -Shri J.B.Singh)
Versus
1. Union of India, through Secretary, Department of Posts
Dak Bhavan, 1 Sansad Marg, New Delhi 110001
2. Director Postal Services, O/o Postmaster General
Jabalpur Region, Jabalpur-482001
3. Sr. Postmaster, Head Post Office,
Jabalpur-482001 - Respondents
(By Advocate - Shri P.K.Chourasia)
O R D E R (ORAL)
Heard.
2. This Original Application has been filed challenging the inaction of the respondents for not stopping the recovery and also to refund the recovery already done.
3. The applicant has sought for the following relief in this Original Application:-
"8.Relief sought:-
(i) Direct the respondent No. 3 to stop the further recovery from the pension of the applicant being unjustified, illegal and arbitrary.Page 1 of 6 2 O.A.No. 200/01141/2019
(ii) Direct the respondents to refund the recovery already made from the pension of the applicant being unjustified, illegal and arbitrary.
(iii) Any other order/orders which this Hon'ble Court deems fit and proper.
(iv) Cost of the petition may also kindly be awarded.
4. From the pleadings the case of the applicant is that initially the applicant was appointed in the year 1968 under Railway Mail Service, JB Division, Jabalpur. After rendering 36 years of service in the department, the applicant stood retires from service on 30.06.2003 on superannuation. The applicant was being paid the pension under PPO No. BPL/7920/VI/2003-04 from Head Post Office, a copy of which is annexed as Annexure A-1. The respondent No. 3 started the recovery from the pension of the applicant @ 2000/- from 13.04.2017 while paying the pension for the month of November 2016 without assigning any reason. A copy of which is annexed as Annexure A-2. The respondents had recovered an amount of Rs. 28000/- despite protest by the applicant. Thereafter, due to objection from the applicant, the recovery stopped from the month of January 2018. The applicant made representation to respondent No. 3 on 17.12.2018 for intimating the reasons for recovery with detail Page 2 of 6 3 O.A.No. 200/01141/2019 of the amount recovered from the applicant but no response was received from the respondents. A copy of which is annexed as Annexure A-3. All of a sudden a recovery @ Rs. 2000/- again started by the respondent No.3 from 02.04.2019, a copy of which is annexed as Annexure A-4. Aggrieved by the action of the respondents, the applicant preferred an appeal on 21.10.2019 to respondent No.2 but did not find any response. A copy of which is annexed as Annexure A-6.
5. The respondents have filed their reply. In their reply, it has been submitted by the replying respondents that the audit party has objected vide its note dated 28.01.2016 (Annexure R-1) whereby it has been indicated that the payment of excess amount has been paid to the applicant as detailed in the letter dated 28.01.2016, a copy of which is annexed as Annexure R-1. Accordingly, the excess amount of pension commutation value Rs. 808/- per month for the period from January 2008 to January 2016 amounting to Rs. 78376/- ordered for recovery as detailed in recovery details vide letter dated 28.01.2016 filed as Annexure R-2. The amount of Rs. 58000/- has been recovered from June 2016 to December 2019 and got credit in the Post Office Account. Page 3 of 6 4 O.A.No. 200/01141/2019
6. Counsel for both the parties has been heard and the documents attached with the pleadings have been considered.
7. From the pleadings it is admitted fact that the applicant stood retire on 30.06.2003 and pension was granted to the applicant. It is also admitted fact that vide letter dated 28.01.2016 (Annexure R-1) the audit party has calculated the excess payment of Rs. 78376/- out of which Rs. 58000/-has been recovered by the department.
8. The contention of the applicant is that the applicant is a Group D employee and stood retire on 30.06.2003. The counsel for the applicant has submitted that the instant case is fully covered by the judgment passed by the Hon'ble Apex Court in the mattes of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc., in Civil Appeal No. 11527 of 2014 (arising out of SLP(C) No. 11684 of 2012). Counsel for the applicant submits that as per para 12 of this judgment the recovery from the employee belonging to class III and Class IV service is not permissible. It is further submitted by the counsel for the applicant that the applicant stood retire and further the excess payment if made in excess of five years can not be recovered at all.
Page 4 of 6 5 O.A.No. 200/01141/2019
9. Learned counsel for the respondents submits that the audit party has calculated the excess amount paid to the applicant. As the law settled by the Hon'ble Apex Court in Rafiq Masih (Supra), the instant case is fully covered with it. The applicant stood retired on 30.06.2003 and the recovery has been made effective in the year 2017 i.e. with effect from January 2008 to January 2016.
10. So in view of the judgment passed by the Hon'ble Apex Court in the matters of Rafiq Masih (Supra) the said recovery is not permissible. The relevant para of the said judgment reads thus:-
"12. 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.Page 5 of 6 6 O.A.No. 200/01141/2019
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
From the above Para, it is crystal clear that this case is fully covered with (i) (ii) (iii) of Para 12 of this judgement.
11. Accordingly, this Original Application is allowed and the recovered amount of Rs. 58000/- as already been recovered is quashed and set aside. The respondents are directed to refund the same to the applicant within a period of two months from the date of receipt of a certified copy of this order. Further, the recovery of Rs. 20376/- is quashed ad set aside.
12. With these observations, this Original Application is allowed with no order as to costs.
(Ramesh Singh Thakur) Judicial Member rn Page 6 of 6