Deepak M. Ganeyan vs Union Of India & Ors.

PER: JUSTICE S. SUJATHA, MEMBER (J)

This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

Facts in brief are that the applicant was appointed as Inspector of Central Excise on 21.09.1990 and he was promoted as Superintendent of Central Excise with effect from 21.09.2002. The applicant claims that he became eligible for grant of higher Grade Pay of Rs. 5400/- on non-functional basis in Pay Band 2 with effect from 21.09.2006, but the same was extended to him with effect from 21.04.2008. On re-examination in the light of the extant instructions in this regard, the Respondent No. 4 issued an order dated 14.02.2019 withdrawing the higher Grade Pay of Rs. 5400/-from the date it was given to him and further ordered that the pay and allowances drawn and paid consequent to the grant of Grade Pay of Rs. 5400/- be recovered. On the challenge made by the applicant to the order of withdrawal of Non-Functional Grade (NFG) granted to him in the Grade Pay of Rs. 5400/- in OA No. 572/2020, this Tribunal by an order dated 27.09.2023 disposed of the same directing the applicant to consider the Office Order dated 14.02.2019 as the show cause notice and reply to the same within four weeks from the date of receipt of the certified copy of the order and if such reply is filed, the same shall be considered by the Respondent No. 4 and an appropriate decision shall be taken in accordance with law by passing a reasoned and speaking order in an expedite manner within a timeframe fixed. Pursuant to which, the applicant submitted his reply to the Office Order dated 14.02.2019 in terms of his representation dated 03.11.2023. However, the Respondent No. 4 rejected the plea of the applicant justifying the action of withdrawal of Non-Functional Upgradation granted to the applicant with effect from 21.04.2008 and ordered for recovery of excess paid drawn. Being aggrieved, the applicant has preferred this OA.

Learned counsel Shri A.R. Holla representing the applicant submitted that the applicant is entitled to the NFG benefit of Grade Pay of Rs. 5400/- in Pay Band 2 with effect from 21.09.2006 as per the relevant rules. There is no rule or official instruction, which regulates the payment of NFG based on vigilance clearance and the competent authority has granted the said benefit to the applicant which is in accordance with law. The said benefit is not liable to be withdrawn after a period of more than 10 years. The applicant has been retired on 23.08.2019 under Rule 56 of Fundamental Rules (FR). Reliance is placed on the judgment of the Hon’ble Apex Court in the case of State of Punjab & Ors vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334.

Detailed reply statement has been filed on behalf of the respondents. Learned counsel Shri Vishnu Bhat representing the respondents submitted that as per Government of India, Department of Expenditure’s resolution dated 29.08.2008 notifying recommendations of the 6^th CPC and subsequent clarification by the CBIC vide F. No. 26017/98/2008/Ad. IIA dated 21.11.2008, Group ‘B’ officers, on completion of four years of service in the pay scale of Rs. 7500-250-12000/- (pre-revised) were granted Grade Pay of Rs. 5400/- in Pay Band-2 on non-functional basis. Accordingly, as the applicant was placed in the higher scale of Rs. 7500-250-12000/- with effect from 21.04.2004, he was granted Non-Functional Upgradation with effect from 21.04.2008 on completion of four years in the scale and was placed in the Grade Pay of Rs. 5400/- in Pay Band-2 vide order dated 04.03.2009. Subsequently, Board vide letter dated 16.09.2009 clarified that Non-Functional Upgradation may be granted retrospectively with effect from 01.01.2006 on completion of four years of regular service in the grade of Superintendent, irrespective of the pay scale attached to the post, provided the individual is clear from vigilance angle. On scrutiny of service book of the applicant for the purpose of grant of financial upgradation under MACP scheme during the year 2018, it was observed that the pay fixation on grant of Non-Functional Upgradation to the Grade Pay of Rs. 5400/- was effected from 21.04.2008, whereas he was due to the said Non-Functional Upgradation with effect from 23.09.2006. Hence, the date of grant of Non-Functional Upgradation was re-examined in the light of the extant instructions in this regard. During the process of obtaining vigilance clearance for grant of Non-Functional Upgradation, it was informed that the Charge Memorandum dated 20.01.2006 was issued to the applicant which culminated in the penalty order of removal from service, confirmed by the Appellate Authority.

On the challenge made before this Tribunal in OA No. 455/2013, this Tribunal vide order dated 25.07.2014 quashed both the orders of the Disciplinary Authority and the Appellate Authority and remitted the matter back to the Disciplinary Authority. In pursuance to the order of this Tribunal, the inquiry proceedings were initiated and the disciplinary proceedings not yet being completed, the applicant was not free from vigilance angle with effect from 20.01.2006 onwards till date. Accordingly, the Central Administrative Tribunal^{Non-Functional Grade Pay of Rs. 5400/- in Pay Band 2 granted to} the applicant with effect from 21.04.2008 was withdrawn vide order dated 14.02.2019, with orders for recovery of excess pay drawn. Further, the applicant was compulsorily retired on 23.08.2019 under Rule 56(j) of the Fundamental Rules/Rule 48 of the CCS (Pension) Rules, 1972 vide order dated 23.08.2019. Thus, supporting the impugned order, learned counsel seeks for dismissal of the OA.

We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.

The sole point that arises for our consideration is, whether withdrawal of NFU benefit in the Grade Pay of Rs. 5400/-granted to the applicant with effect from 21.04.2008, further ordering for recovery of excess pay drawn is justifiable?

Board's clarification issued vide letter dated 16.09.2009 provides thus:

Thus, an officer who has completed minimum four years of regular service as on 01.01.2006 as Customs Appraiser/Superintendent of Central Excise/ Superintendent of Customs (P) irrespective of the pay scale attached to the post and is clear from the vigilance angle is entitled to the grant of the higher Grade Pay of Rs. 5400/- in Pay Band 2 on non-functional basis retrospectively with effect from 01.01.2006. The second condition categorically specifies about the clearance from vigilance angle.

In OA No. 455/2013 (DD: 25.07.2014), this Tribunal quashing the order of the Disciplinary Authority and the Appellate Authority remanded the matter to the Disciplinary Authority to take a fresh decision directing the Disciplinary Authority to reinstate the applicant. The charge memo was not quashed and the disciplinary proceedings were alive. The relevant paragraphs of the said order are extracted hereunder for ready reference:

In the light of the aforesaid order, the arguments of the learned counsel for the applicant that there is no disciplinary proceeding pending against the applicant subsequent to the quashing of the penalty orders by order dated 25.07.2014 in OA No. 455/2013 deserves to be negated.

In OA No. 1030/2016, the applicant had challenged initiation of fresh proceedings against the applicant on 02.11.2016 by the Commissioner of Central Tax, Respondent No. 3 therein under Rule 14 of CCS (CCA) Rules, 1965. The said application was dismissed by this Tribunal vide order dated 09.11.2017 and the respondents were permitted to re-examine two witnesses namely Central Administrative Tribunal^{Shri Abdul Khader and Shri Y. Raju. Review Application filed} against the said order came to be dismissed vide order dated 16.11.2017 holding that the Disciplinary Authority may give a finding on the charge based on the statements of witnesses given under Section 108 of the Customs Act, 1962, though they were not subjected to cross examination. This order was challenged by the applicant in Writ Petition No. 54194/2017 before the Hon’ble High Court of Karnataka which came to be dismissed vide order dated 26.03.2018. Pursuant to which, compulsory retirement order has been passed by the Disciplinary Authority vide order dated 23.08.2019 under Rule 56 (j) of FR/Rule 48 of CCS (Pension) Rules, 1972. This order was challenged by the applicant before this Tribunal in OA No. 514/2020 which came to be disposed of vide order dated 17.07.2023 setting aside the order of compulsory retirement further directing the respondents to reinstate the applicant into service. Learned counsel for the respondents has submitted that the said matter is now seized of by the Hon’ble High Court in Writ Petition No. 17444/2023. Thus, while granting the benefit of NFU to the grade of Rs. 5400/- with effect from 21.04.2008 and issuing the pay fixation order dated 04.03.2009 disciplinary proceedings against the applicant were pending. However, having noticed the withdrawal of NFG of Rs. 5400/- and ordering recovery sans issuing a show cause notice after a period of about 10 years, this Tribunal in OA No. 572/2020 (DD: 27.09.2023) directed the applicant to consider the Office Order dated 14.02.2019 as the show cause notice to give reply to the same, which has been duly complied with, by the applicant submitting the representation dated 03.11.2023. Considering the same, the impugned speaking order dated 05.12.2023 has been passed by the Respondent No. 4. Now, the ground of violation of principles of natural justice would not enure to the benefit of the applicant since opportunity has been provided to the applicant to submit his reply/representation. Considering the grounds urged by the applicant, point-wise findings are given by the Respondent No. 4 in the speaking order impugned herein.

In the light of the Board's clarification dated 16.09.2009 referred to above, vigilance clearance being mandatory, withdrawal of the same after noticing the discrepancy cannot be faulted with. Hence, though withdrawal of NFG benefit to the Grade Pay of Rs. 5400/- is justifiable. However, recovery of the same calls for interference by this Tribunal in the light of the judgment of the Hon’ble Apex Court in Rafiq Masih, supra, more particularly, with reference to paragraph (iii) and (v) which reads thus:

In our considered view, the applicant has not made any misrepresentation or played fraud. Indeed, vigilance clearance was sought and thereafter NFG benefits were granted with effect from 21.04.2008. If the department is not clear about the mandatory requirement of vigilance clearance or vigilance clearance was issued in 2008 while extending NFG benefits, casting aspersions on the applicant would not be appropriate. The onus was on the respondents to examine the correctness of the vigilance clearance, but no such exercise having been done, after 10 long years initiating recovery action is arbitrary and unjust.

Central Administrative Tribunal^{14. Indisputedly, excess payment has been made for a period} in excess of five years (nearly for about ten years before the order of recovery is issued). In such circumstances, it is not uncommon that any delayed action of recovery of the excess amount paid will cause undue hardship to the applicant. Though the applicant's case would not come within para 18 (i) of the judgment in Rafiq Masih supra, being a Group ‘B’ employee, but paras 18 (iii) and (v) certainly attracts. Such recovery is iniquitous, harsh and arbitrary to such an extent that it will far outweigh the equitable balance of the employer's right to recover the same. Hence, we pass the following: