Central Administrative Tribunal - Delhi
Narender Kumar vs Union Of India on 27 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 3795/2013 Reserved on : 30.07.2014 Pronounced on : 27.08.2014 HONBLE MR. V. AJAY KUMAR, MEMBER (J) Narender Kumar, S/o (Late) Shri Dwarka Das, R/o House No.458, KG-II, Near Kerala School, Vikas Puri, New Delhi-110018. Presently posted as Senior Draftsman (NE-II) in the M.T.N.L., Delhi. .. Applicant (By Advocate : Shri R.A. Sharma) Versus 1. Union of India, Through its Secretary, Ministry of Communications and Information Technology, (Deptt. of Telecommunications), Sanchar Bhawan, Parliament Street, New Delhi-110001. 2. Chief-Managing-Director, Mahanagar Telephone Nigam Ltd., Door Sanchar Sadan, 9, CGO Complex, Lodhi Road, New Delhi-110003. 3. General Manager (Plg. & Dev.) HQ, M.T.N. Ltd., Khurshid Lal Bhawan, Janpath, New Delhi-110001. 4. Director (Finance), M.T.N.L., 9, CGO Complex, Lodhi Road, New Delhi-110003. 5. Accounts Officer (P&A) Planning, M.T.N.L., Tax Building, Janpath, New Delhi -110001. .. Respondents (By Advocate : Shri Shivam Tripathi for Ms. Ruby Sharma for R-1 and Ms. Neha Bhatnagar for R-2 to R-5) O R D E R
This O.A. is filed questioning the refixation of the pay of the applicant and the consequential recovery. However, when this matter was taken up for hearing, Shri R.A. Sharma, the learned counsel for the applicant, submits that he is restricting his prayer to question the recovery only but not the refixation.
2. It is submitted that the applicant was appointed as Lower Grade Draftsman vide order dated 03.10.1974 in the pay scale of Rs.260-430 in the erstwhile Indian Posts and Telegraphs Department. Later, he was promoted as Draftsman Grade-II on 25.08.1980 in the pay scale of Rs.330-560. On bifurcation of the erstwhile Post and Telegraphs Department into Department of Posts and Department of Telecommunications and after forming the Mahanagar Telephone Nigam Limited (hereinafter referred to as MTNL), the applicant was transferred and absorbed in the MTNL, Delhi. Later, he was promoted as Draftsman Grade-I on 27.02.1998 in the pay scale of Rs.1600-2660 (Revised to Rs.8300-235-11825). Vide order dated 12.08.2004, the applicant was allowed stepping up of pay vis-`-vis his juniors from Rs.9945/- to Rs.10180/- w.e.f. 01.11.1998 with date of next increment as 01.05.1999. On 01.05.1999, his basic pay was Rs.10415/-. Again the applicant was promoted as Senior Draftsman (NE-II) on 17.05.2006 in the pay scale of Rs.8575-245-12250 w.e.f. 21.04.2003, and his basic pay was fixed at Rs.11270/- as on 21.04.2003. The applicants pay was fixed @ Rs.11760/- w.e.f. 01.05.2003 and fixed @ Rs.12005/- w.e.f. 01.05.2004, being the date of next increment. The applicant was in receipt of the last basic pay of Rs.12250/- on 01.05.2005 in the pre-revised pay scale of Rs.8575-245-12250, and after drawal of one stagnation increment of Rs.245/-, his pay was fixed at Rs.12495/- on 01.05.2007 and revised pay scales of 6th CPC were implemented and allowed to the applicant and others in the year 2010 w.e.f. 01.01.2007.
3. It is further submitted that the respondents suo-moto fixed the pay of the applicant in the revised pay scale of 6th CPC, without even asking for submitting the option by the applicant as required under F.R. 22, and the resultant arrears were paid in instalments to the applicant.
4. It is also submitted that, all of a sudden, to the utter shock and surprise of the applicant, the respondents vide their letter dated 12.07.2013 stated that due to the discrepancy arose in the pay fixation of the applicant, an amount of Rs.2,20,987/- has been outstanding against him and the same shall be recovered by way of Rs.10,000/- per month. The representations made by the applicant were not considered by the respondents, and hence, the present O.A.
5. This Tribunal by its order dated 28.10.2013 stayed the recovery.
6. Heard both the sides and perused the pleadings on record.
7. Shri R.A. Sharma, the learned counsel for the applicant, would submit that though he is not disputing the re-fixation at this stage, but the said alleged wrong fixation was done by the respondents themselves. At no point of time, the applicant was neither responsible in any manner nor made any misrepresentation or played fraud, and hence, affecting the recovery after six years and at the verge of the retirement of the applicant is illegal, arbitrary and against the settled principles of law. It is also submitted that the applicant retired from service on 31.10.2013 and if recovery is affected now, at this advanced age, he will be put to great hardship.
8. Per contra, Ms. Neha Bhatnagar, the learned counsel appearing for the respondents MTNL, submits that since the applicant was retiring on 31.10.2013 and while at the time of fixing his terminal benefits, it was detected that there was a wrong fixation of pay and the pay scale of the applicant was revised from Rs.8575-12250 to Rs.17500-37950, and arrears were also paid to him due to the said wrong fixation. The excess payment continued till June, 2013, and on noticing the above excess payment, the applicant was given due opportunity to represent against the overpayment made to him on account of wrong fixation of his basic pay by providing him with a Due and Drawn Statement, and after putting him on notice, then only the respondents started recovering the amount, and hence, there is no illegality or irregularity in the action of the respondents.
9. It is further submitted that since the applicant was not entitled for the excess money paid to him and since the same was due to wrong fixation of pay, the same should be recovered being the public money.
10. Both the counsels in support of their contentions placed reliance on the same judgment, i.e. Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. AIR 2012 SC 2951, in addition to other earlier judgments on the subject.
11. Though the counsels placed reliance on some other judgments and as the said judgments have been considered by the Honble Apex Court in Chandi Prasad Uniyals case, we are not proposed to discuss the same again.
12. The Honble Apex Court while discussing the entire case law on the subject of excess payments made to the employees and the consequential recovery, held as follows:
12. We may in this respect refer to the judgment of two-Judge Bench of this Court in Col. B.J. Akkara (Retd.) case (2006 AIR SCW 5252) (supra) where this Court after referring to Shyam Babu Verma case, Sahib Ram case (supra) and few other decisions held as follows:
Such relief, restraining recovery back of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
13. Later, a three-Judge Bench in Syed Abdul Qadir case (2009 AIR SCW 1871) (supra) after referring to Shyam Babu Verma, Col. B.J. Akkara (retd.) etc. restrained the department from recovery of excess amount paid, but held as follows:
Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
(emphasis added)
14. We may point out that in Syed Abdul Qadir case (supra) such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. We are concerned with the excess payment of public money which is often described as tax payers money which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
13. Admittedly, the excess payment made to the applicant was due to wrong fixation of pay. Hence, in view of Para 17 of Chandi Prasad Uniyals case, it is required to be seen whether the case of the applicant falls under any of the instances pointed out in Syed Abdul Qadirs case or in Col. B.J. Akkaras case.
14. The present case is also like in Syed Abdul Qadirs case. The respondents initiated recovery proceedings at the verge of the retirement of the applicant, and in fact, had already recovered an amount of Rs.40,000/- from the applicant. During the pendency of this O.A., the applicant has retired from service. If the recovery is allowed, the applicant, at this advance age, will be put to great hardship.
15. Hence, in the peculiar circumstances of the case and for the aforesaid reasons, and in view of the observations made by the Honble Apex Court in Chandi Prasad Uniyals case, we partly allow this O.A. The respondents shall not affect any further recovery, other than what has already been recovered, from the applicant. The respondents shall release all the retirement benefits of the applicant, if not already released, within 60 days from the date of receipt of a copy of this order. No order as to costs.
(V. AJAY KUMAR) Member (J) /Jyoti/