Central Administrative Tribunal - Delhi
Lakhmi Chand vs Delhi Development Authority (Dda) on 12 March, 2025
1
O.A. No. 2978/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 2978/2023
Reserved on: 28.02.2025
Pronounced on: 12.03.2025
HON'BLE DR. CHHABILENDRA ROUL, MEMBER (A)
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
Lakhmi Chand, Aged - 61 years
s/o Late Sh. Maidhan
Retired Executive Engineer from DDA
Resident of D-211,
Prabha Apartment,
Sector-23, Dwarka,
New Delhi - 110 077.
...Applicant
-Versus-
1. Delhi Development Authority through
Vice Chairman,
Vikas Sadan,
New Delhi-110 023.
2. Deputy Chief Accounts Officer (CAU),
Delhi Development Authority,
DDA Office Complex Mangolpuri,
New Delhi - 110 045.
3. Deputy Chief Accounts Officer (F&E)
Delhi Development Authority,
B-2/216, Vikas Sadan,
INA, New Delhi - 110 023.
4. Senior Accounts Officer (Pension-I),
Delhi Development Authority,
Pension Cell-I, C-2/115,
Vikas Sadan,
New Delhi - 110 023.
...Respondents
For Applicant: Sh. Yogesh Sharma, Advocate.
For Respondents: Sh. Arun Birbal, Standing Counsel-DDA.
2
O.A. No. 2978/2023
ORDER
BY HON'BLE MR. AJAY PRATAP SINGH, MEMBER JUDICIAL:
The applicant, a retired Executive Engineer (Civil) from Delhi Development Authority, by means of this Application has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, claiming following main relief(s) [as extracted from the OA] reads as -
"(i) That the Hon'ble Tribunal may further graciously be pleased to pass an order of quashing the impugned orders dated 14.02.2023, order dated 28.02.2023, order dated 01.08.2023 and order dated 10.08.2023 (A/1 to A/4) declaring to the effect that the action of respondents reducing the pay of the applicant from the stage of Rs.93800/- to Rs.91100/- and also made recovery of Rs.350239/- from the gratuity of the applicant is totally illegal, arbitrary and against the law and consequently, pass an order directing the respondents to restore the pay of the applicant with all the consequential benefits including revising the retirement benefits of applicant with arrears.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to refund/release the recovered amount of gratuity i.e. Rs.3,50,239/- to the applicant immediately along with the interest from the date of retirement till the date of payment.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
FACTS OF THE CASE
2. Briefly stated facts as adumbrated by the applicant in the OA that the applicant was appointed in DDA on 07.05.1986 and retired from the post of Executive Engineer (Civil). The basic pay of the applicant was @ Rs.93,800/- w.e.f. 01.01.2022 and same was drawn by him till his retirement. The respondents on his retirement reduced the last pay drawn from Rs.93,800/- to Rs.91,100/-. PPO dated 11.11.2022 issued with last salary drawn Rs.91,100/- and recovery made of Rs.3,50,239/- from the retirement gratuity of the applicant. Respondents issued Order dated 14.02.2023 informing that the applicant was granted benefits of stepping up in case of difference of option exercised bythe employee i.e. namely by Shri Rajender Singh Benewal at the time of 1st ACP, IIIrd MACP under FR-stepping impermissible in case different option exercised by the employee on promotion/MACP/ACP and difference was due to option by the applicant. So also the respondent no.2 vide Order 3 O.A. No. 2978/2023 dated 10.08.2023 has informed that the applicant's pay has been re-checked 2nd time and same has been found to be in order.
3. Per contra, the respondents have contested the claim of applicant by filing the counter-reply and made averments that in DDA, pensionary benefits are determined after employees service book and pay-fixation get audited by Work Audit Cell-I (WAC-I), DDA and duly rectified, last pay certificate and in final pension calculation sheet of pensionary dues by last drawing and disbursing officer submitted to Pension Branch of DDA and PPO is issued. The applicant was informed by the last DDO about the recovery and reduction in pay on correct fixation. Applicant at the time of retirement was himself posted as DDO and had signed numerous similar applications, recovery orders and pay-reduction. Thus applicant was well aware about his pay-fixation an recovery. Applicant also signed undertaking that any amount payable/recoverable due to correction in pay fixation be made from retirement dues.
SUBMISSIONS
4. Shri Yogesh Sharma, learned counsel for the applicant vociferrously contended and can be summarized as under -
(i) The applicant was receiving the basic pay @ Rs.93,800/- till his retirement on 31.07.2022. The fixation of pension and other pensionary benefits on reduced basic pay @ Rs.91,100/- instead of Rs.93,800/- vide P.P.O. dated 11.11.2022 is illegal and arbitrary. So also recovery of Rs.3,50,239/- from retirement of gratuity is contrary to law. The junior to applicant received basic pay @ Rs.93,800/- and applicant was rightly granted same basic pay.
(ii) Respondents have reduced basic pay from Rs93,800/- to Rs.91,100/- on retirement, without any order and no show cause given. The respondents granted benefits of statutory scheme of stepping up at par with his junior Shri Rajendra Singh Beniwal as evident from Order dated 14.02.2023 (Annexure A-1) and on retirement on 31.07.2022, same cannot be withdrawn after 17 years without following principles of natural justice.4 O.A. No. 2978/2023
(iii) The impugned Order dated 14.02.2023 (Annexure A-1) dated 28.02.2023 (Annexure A-2) dated 01.08.2023 (Annexure A-3) and dated 10.08.2023 (Annexure A-4) are issued in gross violation of principles of natural justice, no misrepresentation or fraud, violative of law laid down in case of Thomas Daniel Vs. State of Kerala, 2022 SCC Online SC 536, recovery after retirement impermissible.
(iv) The respondents have no authority to reduce the basic pay of applicant by going back for more than a period of maximum 24 months, preceding the date of retirement, as per Rule 59 of CCS (Pension) Rules, 1972. So also held by D.B. of this Tribunal in case of Gokal Chand Koslia Vs. Union of India & Ors in OA No.956/2017 vide Order dated 29.08.2024 that for re-check, verification of service record is not to go back to a period earlier than a maximum of 24 months preceding the retirement.
5. Shri Arun Birbal, learned Standing Counsel for respondents/DDA, vehemently argued and can be summarized as under-
(i) Applicant was posted as Executive Engineer (Civil) at the time of retirement and himself was the Drawing and Disbursing Officer. So also applicant being DDO signed similar orders of recovery and as far as his own case, he was informed by last DDO about his recovery and pay fixation. There is no illegality in re-fixation of pay and impugned orders are justified.
(ii) The applicant has signed an undertaking that any amount payable/recoverable due to correction in pay fixation shall be recovered from payment due. The basic pay fixation @ Rs.91,100/- after retirement is as per law and recovery of Rs.3,50,239/- is justifiable.
(iii) The impugned Orders relating to fixation of basic pay and resultant recovery made is in consonance with law laid down by Hon'ble Supreme court in case of Smt. Sasikala Devi P. Vs. State of Kerala [Civil Appeal No.8716/2012 decided on 28.04.2023], M.P. Medical Officers Association Vs. State of M.P.[Civil Appeal No.5527 of 2022 etc. decided on 26.08.2022] and in case of Thomas Daniel (supra).
5 O.A. No. 2978/2023(iv) The applicant is Class-I officer and was well aware of the re- fixation of pay from Rs.93,800/- to Rs.91,100/- and recovery made from the dues on day of retirement. Thus, there is no impediment in recovery and correction of pay as no one can be enriched illegally. Law laid down in case of State of Punjab Vs. Rafiq Masih (While Washer) [2015 (4) SCC 334] is not applicable for Class-I and Class-II officers.
ANALYSIS AND FINDINGS
6. We have bestowed our anxious considerations on the rival submissions of the learned counsel appearing for the parties, also perused the material placed on record and precedents relied upon by the parties.
THE ISSUE
7. From the above submissions of the parties and the material placed on record, in our view, the issue arises for consideration viz -
"Whether the respondents have correctly arrived at to verify correctness of pay fixation preceding date of retirement and also whether re-fixation of the basic pay @ Rs.91,100/- instead of Rs.93,800/- and recovery at consequential implication is justified or not?
8. Before dealing with the rival contentions advanced at the Bar, it is apposite to quote language of the impugned Order dated 14.02.2023 (Annexure A-1), the reason for re-fixation of the pay of applicant after retirement, for ready reference reproduced as under:-
"Sub: Recovery of payment from retirement benefits due to inappropriate pay fixation (basic pay fixed inappropriately at Rs.91,100 in place of Rs.93,800/- in the Grade Pay of Rs.6600/- i.e. last drawn pay).
This has a reference to your letter vide Diary No.1054/AO(P)-I dated 30.12.2022 regarding pay fixation. In this context your case was referred to your last DDO i.e. Dy. CAO(CAU) Dwk and it has been intimated that "It is found that main reason for difference of pay is option under Rule FR 22(i)(a)(1) exercised by Shri Rajender Singh Benewal at the time of 1st ACP, IIIrd MACP under FR rule stepping up of pay is not admissible in case of difference option exercise by the employee on promotion.MACP/ACP".
Thus, you may see by yourself that difference is due to your option and nothing else."
6 O.A. No. 2978/20239. As evident from the Order dated 14.02.2023, extracted hereinabove, and the stand of the respondents in the OA by filing counter affidavit that DDA has verified the service book entries, pay fixation and an audit by Work Audit Cell-I (WAC-1). The last DDO informed the applicant about correction in pay fixation and consequential reduction leading to recovery. The reason for re- fixation of pay, reduction in basic pay from Rs.93,800/- to Rs.91,100/- is no where given in the counter affidavit. The Order dated 14.02.2023, clear as noon day that the applicant's basic pay @ Rs.93,800/- was reduced to Rs.91,100/- based on main reason for difference of pay is due to option under FR 22(i)(a)(1) exercised by Shri Rajender Singh Benewal at the time of 1st ACP/IIIrd MACP under FR, stepping up of pay, said rectification of pay anomaly by stepping up, granted as per respondents, but after retirement on audit objection, not admissible, in case of different option exercised by employee. The reason for reduction of pay of applicant has been given in impugned Order dated 14.02.2023 and reiterated in impugned Orders dated 01.08.2023, 10.08.2023. The applicant's pay appears to have been stepped up with his junior but after retirement, respondents have withdrawn the basic pay.
10. Hon'ble Supreme Court in case of Union of India Vs. P. Jagdish & Ors. [1997 (3) SCC 176], Their Lordships held that direction to step up the pay is consistent with Article 39 (d) of the Constitution of India, equal pay for equal work and at any point of time cannot be pay disparity between two people serving in the same rank.
11. In case of Gurucharan Singh Grewal & Anr. Vs. Punjab State Electricity Board & Ors., reported in (2009) 3 SCC 94 was seisin with the issue "whether appellants is entitled for stepping up of his pay even in his case there was a difference in the incremental benefits in the scale given to him and scale given to his juniors?"
Their Lordships held as under:-
"17. Something may be said with regard to Mr Chhabra's submissions about the difference in increment in the scales in which Appellant and Shri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid a lesser salary than his junior. In such circumstances, even if there was a difference in the 7 O.A. No. 2978/2023 incremental benefits in the scale given to Appellant and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of Appellant was also stepped up to that of Shri Shori, as appears to have been done in the case of Appellant."
[Emphasis supplied]
12. In case of Union of India Versus C.R. Madhava Murthy and Others, reported in (2022) 6 SCC 183. Relevant paragraphs 9 to 11 read as -
"9. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.
10. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under:
"(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior
(a) As a result of application of FR 22 C. [Now FR 22 (I)
(a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of FR22C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, 8 O.A. No. 2978/2023 the above provisions will not be invoked to step up the pay of the senior officer."
The orders re-fixing the pay of the senior officers I accordance with the above provisions shall be issued under FR27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of re-fixation of pay. [G.I., M.F., 0.M. No.F.2 [78)E.III (A)/66, dated the 4th February, 1966)".
11. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for."
[Emphasis supplied] 13 The DB of this Tribunal in case of All India Postal Accounts Employees Association & Anr. Vs. Union of India & Ors. - OA No.2124 of 011 (PB CAT - Delhi) vide order dated 01.02.2013, the applicants were aggrieved by Clause 8 of the ACP Scheme - "The financial upgradation under the ACP Scheme shall be purely personal to the employees and shall have no relevance to his seniority position. As such, there shall be no additional financial upgradation for the senior employees on the ground that the junior employees in the grade has got higher pay scale under the ACP Scheme." The main prayer was to declare Clause-8 of the ACP Scheme as ultra vires beyond the statute and their pay be stepped up to bring it at par with their juniors. The Tribunal allowed the OA in terms of Order dated 19.01.2010 in OA No.156-JK-2009 titled Ashok Kumar Vs. UOI & Ors. by Chandigarh Bench of this Tribunal - reads as under:-
"8. On the other hand, the applicants have placed reliance on the judgment of Chandigarh Bench of this Tribunal dated 19.01.2010 in OA-156-JK-2009(Ashok Kumar Vs. UOI & Ors.). Relevant portion of this judgment reads as under:-
"9. The issue raised in this case as to whether a senior person, though having received two promotions, is entitled to stepping up of his pay at par with his junior, who has been granted benefit under ACP Scheme and by virtue of this, is receiving higher pay than his senior, stands clinched by various decisions of this Tribunal including in O.A. No. 842- JK-2007 decided on 17.11.2009 titled Madan Gopal 9 O.A. No. 2978/2023 Sharma & Others Vs. Union of India & Others. In that case reliance was placed on decisions of Apex Court in the case of Ram Sarup Ganda (supra) and (Gurmail Singh). Reliance was also placed on decision in the case of Harcharan Singh Sudan (supra). It was held that seniors are entitled to step up their pay as a general rule as and when any junior gets fixed in a pay scale higher to them on account of grant of ACP Scale. Para 14 of the decision in the case of Harcharan Singh Sudan (supra) in Para 14 is reproduced as under:-
"14. However, one aspect is to be seen. In the case decided by the Apex Court, the State Government was the appellant and the challenge was against the High Court judgment, which held that the higher pay scale be given to the respondents at par with their juniors whose pay scale became higher on account of the benefit of ACP afforded to them. The appeal was not dismissed but partly allowed and it was declared that the respondents were entitled to stepping up of pay. In other words, there shall only be the stepping up of pay and not the pay scale. The pay scale in respect of the applicants would remain the same as of date but the pay would be fixed in appropriate stage, and if there is no stage to match the pay drawn by the junior, the difference shall be treated as one of personal pay. The pay parity would be compared annually and partly would be maintained in future."
10. Finding that the facts of this case are covered by the decision in the case of Harcharan Singh Sudan s case as well as Madan Gopal Sharma and Others (supra), this Original Application is allowed to the extent that annexure A- 2 relating to rejection of claim of applicant is quashed and set aside.
11. With this O.A. stands disposed of and the respondents are directed to step up the pay of the applicant at par with his junior aforesaid and in terms of the directions contained in the case of Harcharan Singh Sudan (supra). It is made clear that the applicant shall be given stepping up of pay only and not the pay scale, as explained above. The pay may be fixed accordingly and arrears be also paid to him within a period of three months from the date of receipt of a copy of this order. However, in the given facts and circumstances of the case, applicant is not entitled to interest. Parties to bear their own costs."
9. In our opinion, the case of the applicants is covered by the aforesaid order of the Tribunal, hence they are also entitled to the same benefits. Accordingly, the present O.A. is allowed. Respondents are directed that the pay of the applicants be stepped up in terms of Para-9 of the aforesaid judgment. This shall be done within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs."
[Emphasis supplied]
14. As evident from impugned Order dated 14.02.2023 that pay anomaly was rectified and same was due to option exercised on 10 O.A. No. 2978/2023 grant of ACP/MACP and with respect to applicant, pay anomaly rectified, arisen due to option under FR 22(i)(a)(1) exercised by Shri Rajendra Singh Benewal and said rectification of difference in pay after retirement has been re-verified and basic pay reduced from Rs.93,800/- to Rs.91,100/- in GP Rs.6600/-. The reason for said reduction given in the impugned order dated 14.02.2023, extracted hereinabove, is contrary to law laid down by Hon'ble Supreme court in case of Gurucharan Singh Grewal (supra), Union of India vs. C.R. Mahadev Murthy & Ors. (supra). Their Lordships seisin with grievance with respect to the anomaly in the pay scale due to granting upgradations under ACP Scheme, their juniors were getting higher salaries than what they receive, directed the pay of senior was required to be stepped up from date they have started drawing lesser pay than their juniors due to upgradation under ACP Scheme. So also DB of this Tribunal in case of All India Postal Accountants Employees Association & Anr. Vs. Union of India & Ors. (supra) declared para 8 of ACP Scheme ultra vires. We have already extracted relevant paragraphs of above precedents on the issue of stepping up of pay where junior were drawing more pay on account of upgradation under ACP Scheme.
15. In view whereof and also in our opinion, the impugned Order dated dated 14.02.2023, order dated 28.02.2023, order dated 01.08.2023 and order dated 10.08.2023 (A/1 to A/4) being contrary to law, deserve to be quashed and set-aside.
16. The another aspect of the case in hand is that the counsel for the applicant much emphasized that the applicant had sent legal notice dated 18.03.2023 to refund wrongful recovery of Rs.3,50,239/- and restore basic pay @ Rs.93,800/- in GP Rs.6600/- instead of Rs.91,100/-, reduced due to re-fixation and recovered after approximately 17 years. The junior to the applicant namely Shri Rajendra Benewal has drawn the basic pay of Rs.93,800/- and the retirement benefits be paid accordingly. There is no denial by respondents. In light of Rules 3, 4 and 5 of Order VIII of CPC, non- denial amount to admission of the fact that respondents have verified and rectified mistake prior to 24 months of date of retirement, impermissible in law.
11 O.A. No. 2978/202317. The Rule 59 of CCS (Pension) Rules, 1972, puts an embargo of 24 months from the date of retirement, if any mistake, which was occurring from the date prior to that period, cannot be rectified or made a cause of recovery. Learned counsel for applicant much emphasized on Chapter 7 of the Civil Accounts Manual for the HOD and Pay and Accounts Officer. Relevant portion reproduced as under:-
"3.2 Role of Pay and Accounts Officer - The Pay & Accounts Officer on receiving the pension papers, will verify the service records and apply prescribed checks with reference to the applicable Pension rules, and assess the amount of pensionary benefits. The PAO concerned, keeping in mind that the intention is not a total overhaul or audit of the entire Service Book or records, but only a scrutiny limited to the immediate purpose on hand, that is the preparation of pension papers. Any deficiency or imperfection or omission which still remains in the service records will be ignored at this stage and the determination of the qualifying service will be proceeded with on the basis of whatever the degree of perfection to bring them by that time. However, for any such check of the correctness of past emoluments, the check should be the minimum that is absolutely necessary, and it should in any case not go back to a period earlier than a maximum of 24 months preceding the date of retirement...."
[Emphasis supplied]
18. The issue involved in present case is no-more res-integra. This Tribunal in case of D.N. Chaudhary versus Union of India & Ors. [OA No.769 of 2012 (Patna) decided on 29.04.2013] allowed similar O.A. Hon'ble High Court, Patna upheld order dated 29.04.2013 in the OA titled Controller of Communication of Accounts Office & Ors. Vs. Sri D.N. Chaudhary & Ors., CWJC No.17270 of 2013 vide order dated 01.05.2016. Their Lordships held reads as:-
"Learned counsel for the petitioners here submits that in pursuance to Rule 71 of CCS (Pension) Rules, 1972 any Government dues, including dues as a consequence of wrong pay fixation, can be recovered from retiral dues. On the other hand, Sri M.P. Dixit, learned counsel for the sole respondent before us and the applicant before the Tribunal contends with reference to Rule 59 (b)(in) of the said Rules that any such wrong fixation of which cognizance can be taken must be within 24 months of superannuation. He further relies on the judgment of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal and Others Versus State of Uttarakhand and Others since reported in 2012 (8) SCC 417 and in particular paragraph-15 thereof wherein it has clearly been observed that no recovery shall be permissible where an employee is about to retire or has retired. He further relies on the recent judgment of the Appellate Court in the case of State of Punjab and Others etc. Vs. Rafiq Masih (White Washer) etc. 12 O.A. No. 2978/2023 Having heard learned counsel for the parties and considered the matter whereof the view that the writ application, accordingly, merit no consideration.
Without the aid of judicial pronouncement, if we refer to Rule 59, it clearly puts an embargo of 24 months from the date of retirement. Therefore, any mistake, which was occurring from the date prior to that period, cannot be rectified or made a cause of recovery. In the present case, the sole respondent superannuated in the year 2012 and the mistake, alleged to have been committed, was of the year 2003, i.e. beyond rectification.
Thus, we unable to persuade ourselves to interfere with the order of the Tribunal. Accordingly, this writ application stands dismissed."
[Emphasis Supplied]
19. So far as the recovery of Rs.3,50,239/- from the retirement gratuity/retirement benefits, after retirement, the recovery as evident from impugned order on anvil of wrong fixation due to stepping up of pay on exercise of option under FR 22(i)(a)(1) on grant of ACP/MACP under FR, junior started getting more pay, than senior applicant and after rectification. The respondents, without following principles of natural justice, re-fixed the pay, after retirement and reduced from basic pay @ Rs.93,800/- to Rs.91,100/- and effected recovery from DCRG. The action of respondents is arbitrary and illegal. Admittedly, there is no fraud or misrepresentation on the part of the applicant.
20. The law regarding recovery of excess amount from pensionary benefits is well-settled by judgment of Hon'ble Supreme Court in case of Rafiq Masih (supra), Syed Abdul Qadir vs. State of Bihar (2009) 3 SCC 475 - recovery is prohibited by Courts where there is no misrepresentation or fraud on part of employees and excess has been paid by applying a wrong Rule or Order. So to avoid hardships and settled equity on retirement or on verge of retirement no recovery be made because of carelessness of officials of Government.
21. In State of Punjab versus Rafiq masih (White Washer) (supra) Hon'ble Supreme Court considered hardships caused to the employee, excess to entitlement paid without any fraud or misrepresentation. Para 18 postulates all situations of hardships on issue of recovery. So also Hon'ble Supreme Court in case of Thomas Daniel vs. State of Kerala, 2022 SCC Online SC 536 that when there is no fraud or misrepresentation on part of employee and 13 O.A. No. 2978/2023 excess payment is made on the mistake in interpretation of service rules no recovery from pension can be made.
22. In stricto sensu, the decision of Hon'ble Supreme Court in case of State of Punjab versus Rafiq Masih (White Washer) (supra), may not be applicable to Class-I or Class-II officers. Hon'ble Supreme court in Thomas Daniel vs. State of Kerala, 2022 SCC Online SC 536, M.P. Medical Officers Association Vs. State of M.P.(supra) and Smt. Sasikala Devi Vs. State of Kerala (supra) has quashed the recovery made where no fraud or misrepresentation on the part of employee. However, in peculiar facts and circumstances of the case, there was no misrepresentation or fraud and order directing recovery of excess amount paid from pensionary benefits held to be unjustified being arbitrary, out weighing the equitable balance of the employer's right to recover. In light of the above, the recovery of Rs.3,50,239/- from the applicant is held to be unjustified.
CONCLUSION
23. In view of the above, the OA succeeds. The impugned orders dated impugned order dated 14.02.2023, order dated 28.02.2023, order dated 01.08.2023 and order dated 10.08.2023 (A/1 to A/4) are set-aside so far relates to re-fixation of pay of the applicant reducing basic pay @ Rs.93,800/- to Rs.91,100/- and recovery to Rs.3,50,239/- from retirement gratuity is also quashed and set- aside.
24. Consequently, we are of the view that respondents effecting recovery of Rs.3,50,239/- from DCRG vide Order dated 01.08.2023 and 10.08.2023 and vide PPO dated 11.11.2022 is unjustified.
25. Respondents are directed to refund the amount of Rs.3,50,239/- already recovered, within three months from the date of receipt of order passed today, failing which, the interest at the rate as may be specified from time to time, the Central Government Employees on amount of gratuity, which is the interest as admissible of Provident Fund amount from time to time, required to be paid after three months.
26. Applicant is held entitled to have last pay drawn/fixed @ Rs.93,800/-, without any truncation on account of award of 14 O.A. No. 2978/2023 stepping up of pay with effect from the date of higher pay was awarded to the junior and his pension shall be re-calculated and re- fixed on such last pay drawn @ Rs.93,800/- within a period of three months from the date of communication of this order.
27. Resultantly, the Original Application is allowed in above indicated terms and accordingly stands disposed off.
28. There shall be no order as to costs.
29. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stand disposed off.
(Ajay Pratap Singh) (Dr. Chhabilendra Roul) Member (J) Member (A) /na/