Central Administrative Tribunal - Madras
S P Muthuchelvi vs M/O Information And Broadcasting on 15 June, 2023
H OA 1031/2021 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA NO.1031/2023 Dated Thursday the 15" day of June Two Thousand Twenty Three CORUM: HON''BLE MS, LATA BASWARAJ PATNE, JUDICIAL MEMBER §.P,Muthuchelvi Stenographer Gril (Retd) Black No.25/Fiat SG, Jains Alpine Meadows, Temple town, Tiruneermalai Main Road.
Chrompet, Chennai-600 044 . Applicant By Advocate: Mr. Paul and Paul Vs.
1. Union of India, Rep. by Secretary, Ministry of Information and Broadcasting, 'AT wing, Shastri Bhavan, New Belhi- 110001.
2, Prasar Bharat! Secretariat Rep, by the Chief Executive Officer Mandi House Copernicus Marg New Delhi - 110 001 3, The Director General All India Radio Akashvani Bhavan,Parliament Street, New Delhi - 110001.
4, The Deputy Director (Admin), All India Radio Akashvanil Bhavan,Parilament Street, New Delhi - 110001.
5, Deputy Director General (EF) Doordarshan Kendra, Chennai - 600 005
6. Pay & Accourtts Officer, Doordarshan Kendra, Swan Sivananda Salal, Chennai - 600 005. .. Respondents By Advocate: Mr. Su. Srinivasan % H 2 OA 1031/2021 ORAL GRBER (Pronounced by Hon'ble Smt. Lata Baswaraj Patne, Member {3)) This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the folowing reliefs:-
*a} To declare the portion of the order passed by the 4% Respondent. in F.No2/472020-SV/1N12 dated 18.08:2020, to an extent of directing the Head office, DDK, Chennal to recover the excess amount, If any and to oblain an undertaking from the applicant, fs illegal and contrary to law, as the same has been passed without affording an oppartunity
b) Directing the respondents to release the recoveredAvithheld Gratuity amount of Rs, 6,85,553/- to the applicant with 12% interest from the date of her retirementto iil the date of payment,
6) for such further or other relief or rellefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice."
2. The brief facts of the case ina nut shall are as follows:
The applicant was appointed as Stenogragher (Jr) at Chennai in the scale of pay of Rs.1200-30-1560-EB-40-2040, The applicant was granted the 1* financial upgradation in. the pay scale of Rs.S000-8000. The applicant was promoted as Stenographer Gr. ll w.e.f, 08.08.2000. The pay of the applicant was fixed in the revised pay scale on account of the implementation of the Sth pay commission and the CCS{RP} Rules, 2008. The 2" financial upgradation under MACP Scheme in the pay scale of Rs.9300-34800 with the grade pay of Rs.4600/- with effect from 01.09.2008 was granted. The 34 respondent had issued a communication with reference to 6" CPC recommendation under Section Il of Part '8' for fixation in respect of Head Clerk/Assistant/Steno. Gril working In All india Radio and Doordarshan. The applicant was granted the 2° MACP in the pay scale of 9300-34800 + 4200 grade pay. A clarification dated 31.12.2015 was issued by the 3"
respondent, wherein It stated that to arrive at the Pay in the revised pay band, the. fitment tables of Pre- revised scales of pay in which the officer has 3 OA 1031/2021 drawn her pay as on 01.01.2006 was.to be used, The applicant was granted with the 3" financial upgradation in the MACP Scheme on 25.08.2016 the applicant's, grade pay was fixed to Rs.4600// Wee 01.01.2016. Communication of the 3" respondent containing the Clarification issued by the Prasar Bharati Secretariat dated 31.12,2015 was issued. Consequently, the Basic Pay of the Applicant was reduced from Rs.12090 f6500- LO500(6500"1.85)) to Rs. 11,540 [5000-8000(5000"1.86)] with effect from 01.01.2006 by way of an order dated 20.09.2616. The applicant was granted the 3° MACP on 03.06.2017 at the stage of 64100 after the completion of 30 years her service. The applicant due te personal reasons submitted a request for voluntary retirement from service with the 3° respondent vide letter dated 02.06.2020. The applicant's request was accepted vide jetter No.FNo.2/4/2020-SVI/112 dated 19.08.2020 and the applicant was directed:
to be relieved from the service on 01.09.2020{F/N}. It was also directed to fix the applicant's pay as per Instructions of the 2 and 3° respondent dated 31.12.2015 and 05.01.2016 respectively, to recover the excess amount ang to obtain an undertaking from the applicant, The retirement benefits to be paid to the applicant was calculated ta be Rs.13,12,740/- wherein Rs.6,65,553/- was recovered from the applicant by the 6"
respondent, The applicant made a representation dated 23.04.2021 to the 3% Respondent to refund the recovered amount in the light of the judgement:
passed by the Hon'ble Supreme Court in State of Punjab Vs Rafiq Masih and in a similar matter In QA.No Si0/G164¢/2015. and the. same was not considered. Being aggrieved, the applicant has filed the present O.A. praying for the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and filed detailed reply in the matter and contended that when the 4 GA 1031/2021 applicant's pay has been fixed for the first time after 6" Central Pay Commission recommendation, the applicant has accepted the same and has not raised any issue or grievance over any anomaly. She has given undertaking on 18.09.2008 to refund the excess payment that may be found to have béen made as 2 result of incorrect fixation of pay. The respondents has further contended that persons who have been wrongly fixed their pay in the year 2008 after recommendation of the 6° CPC have raised their grievances and pointed out the anomaly before the Head Quarters. Hence, the issue has been taken for consideration following with the illustration 4 A in accordance with note 2A below Rule 7 of 6 CPC Gazatte notification. Thereby, the respondents authority have re-fixed the pay of the employees uniformly in the year 2012. The same has been effected in the matter of applicant on 21.01.2013. However, when the issue has been taken with the Ministry of Finance with the Expenditure Department it has been noticed that the pay of the employees in the Office of the Respondents have not fixed strictly In accordance with rule 4 {A} in accordance with the note 2A below Rule 7 of the 6" CPC gazette notification. That is the reason why the decision has been taken up to follow that guidelines issued by the Department's OM dated 6.02.2014. In the cases of over payment made, recovery shotld be made bearing few exceptions of extreme hardships therefore the respondents have issued instructions in December, 2015 and Instructed all the concerned Heads that the same may be informed to ail concerned authority in re-fixation of pay carried out forthwith and in the applicant's case, the pay was refixed om 20.09.2016. The pay fixation is not done according to CCS(RP) Rules, 2008 but by wrong interpretation of rules which résulted in unlawful gains to the applicant for which the aoplicant cannot stake claim. Hence, the respondents prayed for dismissal of the OA.
3 OA 1031/20214. Heard Mr. Muthukumaran for the applicant and Mr.Su.Srinivasan, SCGSC for the respondents and perused the OA along with relevant records.
5. The Learned Counsel for the applicant has placed reliance upan the order passed by Principal Bench of this Tribunal in 0.A.No.290 of 2016 dated 29.3.2023 in the matter of Smt, Pushpa Dulani and 14 others Vs. Union of India, through the Secretary Ministry of Information and Broadcasting and others. After dealing into the issue, though the Principal Bench has dectined to interfere with the matter of re-fixation, however it directed the raspondents authority not to recover the amount.
6. The Learned Counsel for applicant has also relied on the order passed by the Han'ble Supreme Court of India in Civil Appeal No.5527 of 2022 in the case of M.P. Medical Officers Association Vs.State of Madhya Pradesh and Others along with connected Civil Appeals, vide its order dated 26.08.2022, the Hon'ble Apex Court has observed that if the Government has granted the benefit under any of the Circular and subsequently the benefit has been withdrawn on the ground of withdrawal of the said Circular, the recovery is not justified.
7. The Learned Counsel fer applicant has also relied upon the order passed by the Hon'ble High Court of Madras. Interim order was passed by Hon'ble High Court in WPBNo.1 1074 of 2023 and W.M.P.No.10946 of 2023 in the matter of C. Kamalakannan Vs.The Central Administrative Tribunal, Chennai Bench and Others wherein the order passed by this Tribunal in the month of April 2023 has been challenged by the employee and the said order has been stayed as well as recovery also stayed by way of interim measure and the matter is subjudice before the Hon'ble High Court.
8. On the other hand, the Learned Counsel for respondents vehemently opposed the contentions raised by the applicant. The Learned Counsel for 4 6 OA 1031/2021 the respondents submits that the applicant has not raised any grievance over the first pay fixatiorr carried after recommendation of the 6 CPC in-the year 2008. Although the respondents have re-fixed and given the said benefits uniformly, when it was found that re-fixation has net been doné as per iNustration of 4(A) in accordance with Note 2 (A) below Rule: 7 of the 6° CPC gazette notification, and when this mistake has been rectified as per the instructions of Ministry of Finance in consultation with thé Department of Expenditure, immediate steps have been taken for recovery and for re- fixation, and recovery has been initiated not only from the applicant, but alsa frorn all employees who were In receipt of the over payment under the said wrong re-fixation of pay and the said recovery has been effected in the year 2016 itself, Therefore, the applicant has raised his grievance. However since it is exchequer fund, public money, the respondents authority has rejected his request and the said re-fixation as well as recovery has been immediately effected from his retiral benefits.
9, The Learned Counsel for the respondents has retied upen the order passed by this Tribunal in the matter of AC Seshadri Vs. UQI & Ors. In OA, No. 494 of 2020 dated 16.08.2022 and in the case of Mr 8. Ganesan Vs. UOT & Ors. In OLA. NO. 543 of 20202 dated 13.01.2023,
10. The Learned Counsel for respondents also reiled upan the order passed by the Coordinate Bench of Ernakulam Bench in O.A.No. 823 of 2019 in the matter of Xavier A.A. Vs. BSNL by its order dated 8.4.2021, The Court has considered the Issue on the ground thatas no undertaking is found recovery is not justified in the case, however, if the recovery is justified and this does nat fall squarely tn the guidelines issued in the Rafiq Masih (White washer). The respondents therein justified the recovery of total amount of 7 OA 1031/2021 RS. 12,17,980/- due to over payment of pay and allowances and the same has been recovered frorn the retiral benefits and leave encashment. ii. The Learned Courisel for the respondents also relied upon the .order passed by the Coordinate Bench at Bangalore in O.A.No.769 of 2019 by its order dated 27.01.2001. In the matter of N.M. Mujawar Vs. Union of India Department of Post, the Court has observed: that though the recovery of the over payment of pay and allowances has been initiated before the retirement, still, the Tribunal holds that the action of the respondent Government is justified and the same has been rectified before his retirement in the Audit. Therefore, the coordinate Bench dismissed the OA of the applicant.
i2, The Learned Counsel for the respondent also arqued that the order passed by the Principal Bench has not given any reason while following the order in the matter of Rafiq Masih under which category the applicant's case is falling. When there is no reason, the sald order will not have to follow as a Precedent, More aver, in the matter of applicant the recovery has been effected within 3% years and hence the applicant's case is not covered under Ratia Masih guidelines as well as OM subsequently issued by the DOPT as held by the THbunal in the case of R. Ganesan Vs. UOT in OA No. 543/2020 dated 13.01.2023. & AC Seshadri Vs. UOT in OA 494/2020 dated 16.08.2023.
13. Eis not in dispute that after the 6" CPC's recommendation when for the first time pay fixation was carried out for the applicant in the year 2008 and his pay was fixed according to the illustration and the same has been accepted by the applicant as he knew the calculatians aré correct. He has rot raised any grievances over the sald fixation of pay after the 6" CPC's recommendation.
8 OA 1031/202124, It is to be noted that same of the. employees who have raised their grievances in respect of the anomaly to the headquarters, thereby the department has taken a decision to refix the pay of all the employees with a rider that excess payment made if any would be récevered, Accordingly undertaking has been given by the employees. It Is also to be noted that after the recormmendations by the CPC whenever the pay fixation has been carried out as per the rule, all the employees have to give an undertaking for adjustment or refund of the excess payment if any received by them. But in the present case the applicant conveniently evaded the seme. As per the directions of the Headquarters exercise for refixation has been carried out and accordingly In the year 2013 refixation has been effected in the matter of not only in the applicant's case but also in the case of all the employees of the department. As per the refixation the apniicart's pay has been refixed and arrears has been worked out w.e.f 2006 and the same has been released and paid to the applicant, io. Jk is to be noted that when the matter has been referred to the Department of Expenditure to verify the said refixation, the DOE after careful consideration has noticed the mistake and by its letter datad 18.06.2015 observed that there is a mistake while releasing the said payrnent under the refixation and the same has not been carried out according to the illustration in view of the provisions of CCS Revised Pay Rules 2008. that the instruction issued by the PB, Secretary to give minimum of the corresponding stage of that pay in pre-revised scale of pay is wrong and need to be rectified immediately by taking necessary steps and by its letter dated 05.01.2016 it has been informed to the All India Radio that all the AIR/DD officers may accordingly do the pay fixation. as per the clarification provided by the PB, secretary and the excess amount paid if any may be recovered immediately.
9 OA 4031/2021and the said exercise of refixation has been carried out according to the instructions dated 05.01.2016 and the same has been effected in the matter of the applicant on 20.09.2016 accordingly.
16. tis also to be noted that admittedly the applicant; a Stenegrapher Grade I is having pay scale of Group B post. While dealing Into similar Issue In the matter of A.C.Seshadri, a Stenographer Grade I , a Group B employee working In the office of the same respondents, this Tribunal after raiying Upon various judgments/orders placed by both sides passed very detailed order and the relevant portion of the said order is extracted hereunder:-
"() In the matter of Chandi Prasad Uniyal & Ors Vs. State of Uttarakhand & Ors, in paras 15, 16, 17 itis held that: -
"ta. We ate not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of Jaw 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 af the cases referred te hereinbefore tumed.on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were accupyitig lower posts in the adniinistrative hierarchy.
16. Weare concerned with the exsess payment of public money which is often described as "tax payers money" which belongs neither to the officers: who have effected over-paymient nor that of the recipients. We fail to see why the concept of frand 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 he due to various reasens like negligence, carelessness, collusian, favouritism 'ete, 'beeause money in such sitation docs net 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
-puthority of law and payments have been received by ihe 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 net as a maiter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17, Weare, therefore, of the considered view that except few instances pointed outin Syed Abdul Qadir case (supra) and in Col. BJ. Akkara (retd.) case (supraj, the excess payment made due to wrong/irregular pay fixation can always be recovered."
(li) The decision of Principal Bench of CAT In OA 1857 of 2014, wherein one af the similarly situated employee Mr, P. Chandra Sekhar has filed the OA against the very same respondents wherein plea has been cae 10 DA HOFL2021 taken that wrong fixation of pay, recovery thereof While dealing inte the Issue, the CAT-Principal Bench have gone inte the interpretation of ifustration 4A in accordance with note 2A below Rule 7 of 6" CPC gazette notification. The relevant paras are reproduced as unders-
"2. Aecording 16 the applicant, as per. Section N of Part 5 of the Gazette Notification, notifying the CCS (Revised Pay) Rules, 2008, revised. pay scale' of "6500-10500 has been recommended for Stenographer Grade I] in PB-2 + Grade Pay of "4200/-. It is. also stated that the Government has provided the procedure for initial pay fixation as on 1,01,2006 in Note 2A below Rule 7 of the Notification, which is reproduced below:
"Note 2A- Where a post has been upgraded as a result of the recommendations of the Sixth CPC as indiceted in Part B or Part C of the First Schedule to these Rules, the fixation of pay in the applicable pay band will be done in the manner prescribed in accordance 'with Clause (A) (i) aud (ii) of Rule 7 by multiplying the existing basic pay as op 1.1.2006 by a factor of 1.86 and rounding the resultant figure to the next multiple of ten, The grade pay corresponding to the uperaded scale as indicated in column 6 of Part Bor C will be payable in addition. Iustration 4A in this regard. is in the Explanatory Memorandum. to these Rules."
3 itis further stated in Role 7 (1) (A) @) & (ii, which reads as follows:
"(A) inthe case of all employees:-
(i) the pay in the pay band/pay scale will be determined by multiplying the existing basic pay. as on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10.
Gi} if the minimum of the revised pay band/pay scale is more than the amount arrived at as. per (1) above, the pay shall be fixed at the minimum of the revised pay band/pay scale."
4, In paragraph 4 (i) of the O.A., the applicant has stated that the Government, vide their Notification, has recommended the benefit of one 4 increment after bunching for every two stages so bunched. In fact, the applicant has also purportedly quoted the abstract of the Report as follows:« "Where, In the fixation of pay, the pay of Government servants drawing pay at two or more consecutive stages in-an. existing scale 'gets bunched, that is to: say, gets fixed in the revised pay structure at the same siage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given go as to avoid bunching of more than two stages in the revised running pay bands. For this purpose, the increment will be calculated on the pay in the pay band. Grade pay would not be taken into. accaunt for the purpose Of granting inerements to alleviate bunching."
5, First of all, what is contained in the Report is not important but the Notification of Government of India, based on the Report, is to be followed. Secondly, at Amexure A-4, 'the applicant has enclosed paragraphs 3.1.13 and 3.1.14, perhaps of the Report of 6th Central Pay Commission, which does not mention anything about bunching and as pointed out by the respondents in the impugned order, there is no provision for bunching in the Report. In. fact, at i OA [0312021 Annexure A-1G, ihe applicant has annexed « clarification from Ministey of Finance, Degarisient of Expenditure issued on 14.12.2009, in which the fret point raised and the clarification given therete read.as follows:-
Point raised Clatification .
fa} The manner in which The pay in the pay band of pay of Assistants' Pas in Assistunts/Pas working as on position on 1.1.2006 is to be 1,.1,.2006 will be fixed with fixed as per the provisions reference to the fitment table af CCS (RP) Rules, 2008. of the prerevised pay scale of Whether there will be any Rs.SS500-9000 annexed with bunching in this case, this Department's OM.
No. /12008IC dated 30th August, 2008 and they will be. granted the grade pay of Bs.4600. Since the minimum }pay-in the pay 'S bend i the revised pay structure corresponding to the stage of Rs.5500 (pre-revised) scale of Rs5500-9000) is more than the minimum. of the pay band PB-2 he, Rs.9300, no benefit of bunching is nimissible n this cnse, Therefore, from the above, it is clear that there is no provision of bunching while fixing the pay as per the recommendations of the 6th Central Pay Commission, and if it had been done earlier, that was an etror, which is Tightly rectified by the responders,
6. The pay of the Government servant has to be fixed as per the recommendations of the 6th Central Pay Commission strictly according to the CCS (Revised Pay) Rules, 2008 where the provision is absolutely clear, which is that the basic pay drawn by the employee in the earlier pay scale in the pre-revised scale will be multiplied by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10, and if this is below the minimum of the corresponding pay of the revised pay grade, then the basic pay will be fixed at the minimum of the revised pay grade, This is exactly what the tesponderits have clarified in their affidavit fled on 18.01.2016 and also placed before us 'an Office Merndrandum dated 28.07.2015 Amexure R-10) issued by the Ministry of Finance, Department of Expenditure wherein it has been stated that there is no question of fixing the pay taking the minimom of the corresponding stage of "6500/- of the pre-revised seale of pay of "6500-10500, We are, therefore, clear in our opinion that there is no inconsistency or error cn the impugned orders dated 12.04.2014 and 21/22.04.2014 and 6 these aré issued as per the instnictions of the Government of India contained in CCS (Revised Pay) Rules, 2008.
7 The OA. is, therefore, completely misplaced and on an absolute misunderstanding of the Rules/instructions. It is accordingly dismissed.
Respondents are at liberly to recover any excess amount paid to the applicant, No costs."
12 OA 1031/2021ii. The Patna Bench of this Tribunal, in a sliiilar context in OA 24 of 2016, reiterated the same ratio and dismissed tha said OA, iv. The Bangalore Bench of this Tribunal had dismissed the OA 867 of 2019 filed seeking a similar rellef-as under :-
wee Lhe applicant would say that-even at the time of erroneous fixation in.2012, he was a Group-B (Non-Gazetted) officer and with effect from 2017, he became a Group-BiGazetted) afficer The applicant would claim that sinee erroneous fixation is with effect fom 1.12006 and the excess-has been paid for more than 5 years, as per the White Washer judgment, this cannot be recovered from him, As already seen, the wrong fixation was done on 13.12.2012 and this was corrected on 23.2.2016, Therefore, it cannot be said that he was drawing this excess pay for more than 5 years since it had been modified within four years of the original wrong fixation. Farther, the. Annexure-A13 which was issued in February 2016 was not challenged by the applicant at all. This leads to the suspicion that the refixation was done correctly and that prima-facie the applicant had no objection to it, We fall to understand 2s to how the respondents did not take any action w recover whatever the excess that had been paid to him between 2012 and 2016. 1 is possible that being an Accountant in the same office, the applicant could have had juncture in the nonrecovery also. Be that as it may, it is clear ther he is clearly mot eligible for nonrecovery based on the White Washer judgment. His other contentions relating to the higher Grade Pay vide Annexure-A9 and subsequent higher Grade Pay in 3ré MACP etc., do not deserve any consideration since the concemed instructions are not relevant in his case. His citing the case of one more person algo namely Sr. Sadashiva has also been replied to by the respondents in. para-25 of the reply Statement wherein they had shown that Sri Sadashiva was actually drawing the Basic Pay.of Rs.7250 as on 11.2006 while the applicant was drawing Rs.3675 on the same date. Therefore, this also will not help the applicant.
7. The OA is therefore dismissed..No costs; "
17, Admittedly for the first time against the 6" CPC's recommendation pay fixation has been carried out in the matter of applicant and she has accepted the same and she has not raised any grievances over the same, Other employees have raised the anornaly in respect of their pay fixation and tn view of the decision taken by the headquarters, that'too, subject to ratification and corrections against the excess payment and after getting undertaking. from the employees, the department has refixed the pay under which the applicant was one of the beneficiaries. Immediately within a short span of time approximately two to three years after receipt of the OM dated 28.07.2015 from the Ministry of Finance Department of Expenditure wherein it has been instructed that in view of the anomaly, refixation has been carried out however the same has not been done In conformity with the CCS 13 OA 1031/2021 Revised Pay Rules 2008, and accordingly steps have been taken and refixation has been done In the matter of applicant and other emplayees who were given the benefit of the said wrong fixation. It is to be noted that while dealing inte the Issue & observations In the matter of Rafig Masih, the Tribunal has held as under:
14, Itis to be noted that after the direction of the Hon. Apex court in the matter of Rafiq Masih, DOPT by their OM dated 02.03.2016 have instructed to the authorities in respect of recovery of wronaful excess payment made to the Government servants wherein considering the all observations of the Hon'ble Supreme court as under:
"4, The Hon'ble Supreme Court while observing that it is not possible to pastulate 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 has summarized 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.
(iil) 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.
{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."
LS. As far as concerned to the recovery also if matter is covered under the Rafiq Masih In @ olain reading, then the matter has to be referred te the Department of Expenditure. It is also te be noted that on 22.10.2019 verification of quallflcation of service in respect of the applicant has been done wherein a Senior Accounts Officer hes specifically remarked that "Excess drawn pay and allowances on grant of Rs.6500-200-10500 pay scale may be recovered from DCRG. Bue drawn statement may be prepared along with pension papers." [kt is also submitted that the copy has been served upon the applicant and the same fact is also admitted. It was well within the knowledge of the applicant that after refixation recovery was going to be effected. Therefore on 23.12.2019 he has subrnitted a detailed representation through proper channel to the Chief Executive Officer and raised his 14 OA 10312021 grievances over the action of the respondents in effecting recovery on fast tract, He has also placed reliance upen the order passed by this Tribunal in the. matter of K.Kannan. It is to be noted that In the matter of K.Kannan recovery has been effected from. his retiral benefits so far the action of the respondents to initiate the recovery has not been attempted likewise in the applicant's case stil his representation has been processed to the higher authorities. By representation dated 07.02.2020 again the applicant has agitated to the respondent authority not toe revise his. pay and not to recovery any amount.
16. It isto be noted that by Jetter dated 14.02.2020 from the office of the Directorate General AIR it has been informed to the lower authorities by returning the representations they themselves have to. examine the matter at their end, Even after the knowledge of the saici action on the part of the respondents, the applicant submitted repeated representations to the authorities. However, finally recovery has been effected fromm his retiral benefits. The total retiral benefits due to the applicant is Rs.31,48,029 fram which the respondents have withheld an amount of Rs.4,50,382 towards the excess amount paid under the said refixation effected in the year 2013 against the direction dated 03/04.10.2012. However subsequently within a very short period the said mistake has been rectified and action has been Initiated jn the year 2015 itself and the recovery of excess payment has been initiated In the year 2016, i7, itis to be noted that as observed by the Hon. Apex court of India in Rafiq Masih's case while dealing Into the said issue by considering the orders passed by the predecessor in various pronouncements, the Hon'ble Apex court of India has considered the issue at length and observed thus:
7. Having examined a number of judements readered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cages where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to. recover. In other words, interference would be celled for, only in such cases where, it would b¢ iniquitous to recaver the payment made, In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to. be made to situations when this Court exempted smployees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in-any cause"
would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8..AS between two parties, if'a determination is rendered. in favour of the party, which is the weaker of the hve, without any serious detriment to the other (which is truly.a welfare State), the Issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of india. The right to recover being pursued by the employer, will have to be compared, With the effect of the recovery on the concermed employes. Lf the effect of the recavery from the concemed employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding rieht of the employer to recover the. amount, then it would be iniquitous and arbivvary, fo effect the recovery, In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.15 OA 1031/2021
9. The doctrine of equality isa dynamic: and evolving concept having many dimensions. The embodiment 6f the doctrine of equality, can be found.in Anticles 14 to 18, contained in Part I of the Constitution of India, dealing with "Fundementai Rights". These Artleles of the Constitution, besides assuring equality before the law and equal protection of the laws: also disallow, discrimination with the object of achieving equality, in matters of employment; abolish tuttouchability, to upgrade the social status of an ostracized section of the society: and extinguish titles, to-seale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 394, 43 and 46 contained in Part IV of the Constitution of India, dealiny with the "Directive Principles of State Policy", These Articles of the Constitution of India contain a mandate to the. State requiring it to assure a social order providing justice.- social, economic and politcal, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages $0 aS fo ensure, an appropriate standard of Hife, and by promoting economic interests of the weaker sections.
10, In view ofthe afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfaiz, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer, io recover the amount. Gr in other words, till such time.as the recovery would have a harsh and arbitrary effect on the employes, it would be permissible in law, Crders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recavery {of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.
Hi. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and thi Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery maze on the expressed paranitters,
12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58:
"38. The relief against recovery is granted by courts not because of any right in the employees; but in equity, exercising judicial discretion 10 iclieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the eniployee had knowledge thet the payment tecelved was im excess of what was due or wrongly paid, of in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial. discretion, courts may, ou the facts and circumstances of any particular oase, order for recovery of the amount paid in excess. See Sahib Ram w« State of Haryana, 1995 Supp. (1) SCC 18, Shyam Baba Verma v, Union of India, (1994) 2 SCC 321, Union of India v. M. Bhaskar, (1996) 4. SCC 416, V. Ganga Ram v. Director, (1997) 6 SCO°139, Col. B., Akkara (Retd) v. Govt. of India, (2006) 11 5CC 709, Parshottam Lal Das v, Siate of Bihar, (2006) 11 SCC.492, Punjab National Bank ¥ Manjeet Singh, (2006) § SCC 647 and. Bihar SEB v: Bijay Bahadur, (2000) 10 SCC
99."femphasis is ours) 13,.Fisst and foremost, it is pertinenit-to note, that this Court in tts judgement in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the 16 OA. 1031/2021 action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of Gime, it would be open for the employer to recover the same.
Conversely, if the payment had been made for a long duration of time, it would. be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is. arbitrary, All arbitrary:
actions are truly, actions in violation of Article {4 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of Indis, because it would be almost impossible for an employee te bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent.on his wages, and if a deduction is to be made from hishher wages, it should not be a deduction which would make it difficult for the employee to provide. for the needs of his family. Besides food, clothing and shelter, an employee 'has to cater, not only to the education needs of those dependent'upon him, but also their medical requirements, and a variety of sundry expenses, Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though ®t would be open to the employer to corect the mistake, ft would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee,
14.{n this context, reference may also be made to the devision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
"LL. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission wef. January J, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560. but as they have received the scale of Rs 330-S60 since 1973 due to no fault of theirs and that seale is being teduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been-pald to them. Accordingly, we direct that no' steps should be taken to recover. ar to adjust any excess amount paid to the petitioners due to the fault of the tespondents, the petitioners being in no way responsible for the same."(emiphasis is ours) It is. apparsat, that In Shyam Babu Verma's case (supra}, the higher pay- scale commenced to be paid erroneously in 1973. The same was sought to be recovered. in 1984, Le., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay-scale would not be Just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.
15. Examining a similar proposition, this Court.in Col..B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under;
"28, Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, butin 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 mungs.of service would spend whatever envoluments. 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 reeoyer the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge tahoe a pve, Sibpwarrhbr ation \7 OA 1031/2021 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 wrang payment, courts will not grant relief against recovery, The matter being inthe realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery."
A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara's case {supra} reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be. sustainable so long as the same was not iniquitous or arbitracy, In the observation extracted above, this Court also recorded, that recovery from employees'in lower ming of services, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (3.6., Class-HE and Class-IV - sometimes denoted as Group 'C' and Group 'D') of service, should not be subjected to the ordeal of any recovery, even though they sere beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be. iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
16, This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows:
"39. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount thet was being paid to them. was more than what they were entitled to. [t 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 heid 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 appellant 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 appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." .
Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judamient reproduced above, sulls out yet another considetation, which would make the process of recovery iniquitous and arbitrary. It-is apparent' from: the conclusions drawn in Syed Abdul Qadir's ease (supra), that recovery of excess payments, made from eniployses who have retired from service, or are close to their retirement, would entail extremely harsh consequences oulweighing the monctary gains by the employer. It cannot be forgatten, that 2 retired employee or an employse about te retire, is a class apart from those. who have sufficient service to their credit, before their retirement. Needless to mention, dat at retirement, ah employes is past his youth, his needs are far in excess of what they were when he was younger, Despite that, his earnings have substantially dwindled {or would substantially be reduced on his retirement}. Keeping the aforesaid circumstances in mind, we sre satisfied that recovery would be iniquitous and arbirary, if it is sought to be miade after the date of retirement, or soon before retirement, A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated 2s iniquitous. Therefore, it would be justified to treat an order of recovery, on 18 OA }031/2021 account of wrongful payment made to an employee, as arbitrary, IP the recovery is sought to be made afer the employee's retirement, or within one-year of the date of his retirement on 'superannuation.
17. Last of all, xeference may be made to the decision in Sahib Kam Verma v. Union of India, (1999) Supp. 1 SCC 18, svherein it was concluded as-under:
"4. Mr. Prem Malhotra, learned counss! for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 70C- 1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was. therefore, not tight im dismissing the writ petition. We do not find any force in this contention. [t is seen that the Government in consultation with the University Grants Conmnission had revised the pay soale of a Librarian working in the colleges-to. Rs 700-1600 but they insisted upon the minimum. educational qualification of first or second elass. MLA., M.Se., M-Com. plus-a first or secoml class B-Lib. Science ot a Diploma in Library Science, The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself.
5, Admittedly the appellant does not possess the required. educational qualifications, Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised seale. However, it is not-on account of any misrepresentation made by the appellant that the benefit of the higher pay seale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovéred trom the appellant.
The principis of equal pay for equal work would not apply to the scales preseribed by the University Grants Coramission. The appeal is allowed partly without ang order as te cosis."
it would be. pertinent to. mention, that Librarians were equated with Lecturers, for the grant of the pay seale of Rs.700-1600. The above pay parity would extend tc Librarians, subject to the condition that they passessed the prescribed minimum educational qualification (first or second class M.A., M.Se., M.Cont.. plus a first or second class B.Lib, Science or a Diploma in Library Science, the depree of M-Lib. Science being a preferential qualification). For those Librarians. appointed prior te 3.121972, the educational qualifications were relaxed, In Sahib Ram Vernna's case {supra}, amistake was committed by wrongly extending.to the appellants the revised pey scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were inelictble far the same. The connemed appellants were held not eligible forthe higher scale, by applying the principle of "equal pay for equal work", This Court, in the above circumstances, did not allow thé recovery of the excess payment, This was apparenily done because this Court felt thet the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the mailer, we are-of the opinion, thai jt would be iniquitous and arbitrary for an employer to require an employes to refund the wages of a higher post, against whieh he had wrongfully been permitted io work, though be should have rightfully been requixed to work against an inferior post.
While concluding the issue the court considered various pronouncements under the facts and circumstances of the particular case and came to the conclusion and issued various diréctions and has noted ~hat "We are of the opinion, that if would be Iniquitous and arbitrary for an employer to require an employes to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post." It was concluded that in the cases where excess Unauthorized payment Is 19 OA 1031/2821 deducted within a-short period of time it would be open for the employer to recover the same. Conversely, if the payment had been made for a fong duration of time, it would be iniquitous to make any recovery, After observing all these aspects considering the facts and circumstances, the Hon, Apex court passed the order:
18. It is uot 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, asa teady reference, summmivrisé the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Clase-Ill and Class-lV service (or Group 'C' and Group 'D' servis).
(ii) Recovery from retited employees, or employees who are due to retire within one year, of the order of recovery.
(iit) Recovery from employees, when the excess payment has been made for a pétiod in excess of five years, before the order of recovery is issued,
(iv) Recovery in cases where an employes has wrongfully been required to discharge duties of a higher post, and has bean paid accordingly, even though he should have rightfully been required to work against an inferior post.
(y) 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 sueh an extent, 8s would far outweigh the equitable balance of the employer's right to recover.
18. if is to be noted that the case of the applicant is not covered by the order passed by the Hon'ble Supreme court in the matter of Rafig Masih on the ground that merely saying the applicant belongs to Group C, admittedly he himself being involved in the said fixation of pay, it is well within the knowledge of the applicant, and it may not be correct that he has done unintentionally or by mistakenly he was fully aware that what is mean by pay fixation. When first time against the 6 cpc recommendation his pay has been fixed at Rs.10230 on 17.09.2008 he has accepted as it Is correctly fixed, even today he has no grievances over the same. However, subsequently the pay fixation has been dane by the respondents against the instructions issued in the year 2012 and his pay has been reflxed on 31.03.2012, at Rs.12090. The applicant was aware that it Is the excess payment made to him and according to the clarification issued by the Department of Expenditure dated 28.07.2015, the seme hes been corrected and refixation has been affected on 29.01.2016 within a short period of time and accordingly excess payment made to the applicant to the tune of Rs.4,50,382 was recovered from his retiral benefit of Rs.31,48,029/- and hence recovery is justified by the respondents. But the applicant just kept placing his grievances through repeated representatians to the respondent authorities simply stating that for said pay fixation he is not at fault at any time. However, nowhere he has stated that he is entitled for this refixation of pay-2012. Finally, he has accepted that refixation has been done properly ultimately the eifect of the refixation is to correct his pay and if he is in receipt of any excess payment that has to be recovered, since it is exchequer's/tax payer's money and in the interest of public at large. and to run the administration, it is necessary that the respondents have to give effect to the recovery. Moreover, in the applicant's case, 20 OA HIST-2021 only on the clear clarification Issued by the Department of Expenditure in the year 2015, the refixation of pay and recovery af excess payment has been ordered.
19. While applying the ratio laid down by the Hon'ble Supreme court in the matter of Rafiq Masih, It Is necessary to fook into the facts and circumstances of the case and as recorded above the same is not applicable in the present case, since excess amount which was received under said refixation and paid In the year 2012 has been revised and refixed after consultation with the Ministry of Expenditure in 2015. Therefore in my considered opinion, the action on the part of the respondents is justified and hence no interference is called for."
18. It is to be noted that in the.ordér passed by the Principal Bench of this Tribunal at New Delhi relied upon by the applicant, though the Principal Bench: has declined the relief against the refixation, however set aside the recovery. It is to be noted that as rightly pointed aut by the learned counsel far the respondents, the Principal Bench has though accepted the decision of refixation, however while setting aside the order of recovery not given any specific reason to specify that how the case of the applicant therein covered under the guidelines of the Rafiq Masih's case and falis under which category. Therefore order without reasoning has to be per Incurlam. It is to be noted that the respondent authority has justified in recovering the excess payment from the applicant within three and a half year more particularly when she is holding the Group B post as per the pay scale. It is to be noted that whether thé person belongs to Group C or Group B or Group A category when he/she has been benefited under the wreng calculation for which he/she is not eligible & entitled for, this is the exchequer's fund, tax payer's money and as and when within a short period the same has been rectified, the respondents are having a right to recover the same. It is to be noted that nowhere in the pleadings in the OA as well as in the representation of the applicant she has submitted that she is eligible & entitled for the said refixation.
18, In view of the above I am of the considered opinion, the respondents 2k OA fO3L2021 have justified the refixation as the same fas been effected within shart period of three and a half years, hence the applicant's case is neither covered under the guidelines issued in the matter of Rafiq Masih nor under the subsequent OM of DOPT and facts and ratio of orders passed by the Principal Bench are not applicable to the facts of the present cass,
20. itis to be noted that in the matter of financial Implications each and every matter has to Be considered and scrutinized in its own facts and on merit, Since the applicant has nowhere pleaded that the applicant's pay was _ wrongly fixed in the year 2008 and for the refixation she Is not one of the employees who has raised the anomaly, Just because the other employees raised their grievances and the applicant Is benefited under the refixation for which she is nat otherwise eligible and entitled for and the recovery has been inftiated within a short span of time. In view of the same there is no merit in the matter, hence no interference is cailed for, Accordingly the OA is dismissed; No order as to-costs, ee ie