AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
[Per: Kumar Rajesh Chandra, Member(A)]
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
“(i)The order of recovery of total amount of Rs. 4,06,662/- from his salary installment of Rs. 25000/- every month as contained in Annexure-A/1 may be quashed and set-aside.
(ii)The letter dated 24.02.2024 issued by the respondent No. 5 (Annexure-A/3) may be quashed and set aside.
(iii)Lordship may be directed to the respondent to revise his basic pay Rs. 60,400/- as per recommendation of 7th Pay Commission.
(iv)Lordship may be directed to the respondent to return the excess recover amount to the applicant with admissible interest as per rules/law.
(v)Any relief/reliefs may be granted to the applicant for ends of the justice.”
For the sake of clarity, the brief facts of the case, as stated by the applicant in the O.A., are being discussed and delineated as under:-
The applicant was appointed as a Postal Assistant in Postal Central Administrative TribunalDepartment and at present working as HSG-II in Patna GPO. After completion of ten years of service in the Postal Department he was granted 1st MACP in the grade pay of Rs. 2400/- w.e.f. 2006. After completion of 20 years of service, he was granted 2nd MACP in Grade Pay of Rs. 2600/- w.e.f. 03.05.2016 vide memo dated 16.03.2017 (Annexure-A/2).
It is contended by the applicant that after recommendation of 7th Pay Commission he had given option as per Rule 5& 6 of CCS(RP) Rules, 2016. Thereafter, respondent no. 5 as per direction of respondent no. 4 issued the letter dated 24.02.2024 for recovery of the amount which was already over paid to the applicant and directed the applicant to credit Rs. 4,06,662/- in any Post Office. It is further submitted that the aforesaid recovery order was issued in compliance of Internal Audit Report after reducing the basic pay of the applicant.
The applicant has alleged that after audit objection the respondent authority did not give any opportunity to the applicant and recovered the amount of Rs. 25,000/- from the salary of the applicant for the month of March, 2024 (Annexure-A/1) illegally. It is stated that the applicant has been discriminated as pay of the similarly placed employees in Patna GPO has been fixed and arrears given under similar provision of law.
Referring to the decision of Hon’ble Supreme Court of Indiadated 18.12.2014 in the case of State of Punjab and Others Vs. Rafiq Masih [ (2015) 4 SCC 334 ] in support of his case, the instant OA has been filed by the applicant.
Per contra, the respondents in their written statement have submitted as follows:-
The applicant was appointed as Postal Assistant on 19.04.1996. On completion of 10 years regular service in PA cadre, the 1stfinancial upgradation was granted under MACP Scheme w.e.lr. 01.12.2019 in the Pay band 5200-20200 with GP Rs. 2800/- vide memo dated 31.03.2010. Subsequently, on completion of 20 years regular service in PA cadre, the 2nd MACP was granted w.e.f. 03.05.2016 in Pay Level-6 vide memo dated 16.03.2017.
Central Administrative Tribunal(ii) On recommendation of 7th CPC, as per option submitted on 05.08.2016 (Annexure-R/5) the basic pay of the applicant was fixed in new pay scales from 01.01.2016. Subsequently, as per Ministry of Finance, department of Expenditure, New Delhi order dated 12.12.2018 (Annexure-R/1) the applicant was provided another opportunity to switch over to revised pay structure to those employees who were granted promotion/financial upgradation after 01.01.2016, from the date of such promotion or upgradation as per Rule 5 of CCS(RP) Rules, 2016 . Further, option for such re-fixation was to be given within three months, but the applicant did not give any such option during that period.
Later on, the Postal Directorate, New Delhi vide letter dated 31.01.2023 (Annexure-R/2) circulated vide O/o CPMG, Bihar Circle, Patna letter dated 24.02.2023 (Annexure-R/3) requested the Circles to settle similar issues as per clarification provided in this regard vide Directorate’s letter dated 07.10.2022 (Annexure-R/4). The said letter dated 07.10.2022 provides that “As per provision Rule 5 of CCS(RP) Rules, 2016, a Government servant can chose to retain old pay structure up to his next or any subsequent date of increment and for those who have already earned an increment from 01.01.2016 to 25.07.2016 may elect to come over to new structure from date of such promotions. DOE OM 4-13/17-IC/E-IIIA dated 12.12.2018 provided one time opportunity for Government Servant to re-exercise, this option to come over to new pay structure. DoE OM dated 12.12.2018 permits any employee who have already exercised option to come over to revised pay structure or to retain the old pay structure till the date of OM No. 1-13/17-IC/E-IIIA dated 12.12.2018 to revise their initial option in terms of Rule 5 & 6 thereof. ”
It is further submitted that the pay of the applicant was erroneously re-fixed in the light of his request dated 10.04.2023 which was not given within three months prescribed by the aforesaid order dated 12.12.2018. Subsequently, on the basis of clarification issued by Department of Post vide letter dated 20.05.2024 (Annexure-R/6), the benefit given to the applicant through erroneous fixation of pay was withdrawn. It is thus averred by the respondents that the recovery of arrear from pay and allowances from the applicant is liable and justified.
While submitting that the re-fixation of pay and recovery is justified, the respondents have prayed for dismissal of the OA
Rejoinder to the written statement has been filed by the applicant and reply to rejoinder has been filed by the respondents to controvert the submissions made by the respective parties.
Heard the learned counsel for the parties and perused the materials on record carefully.
Learned counsel for the applicant during the course of hearing has submitted that respondent no. 4 issued directions to respondent no. 5 vide letter dated 24.02.2024 to recover the over payment made to the applicant Rs. 4,06,662/- without any show cause notice. The respondents also reduced the basic pay of applicant in violation of principles of natural justice. Further, the respondents also started recovery of Rs. 25,000/- on monthly basis from March, 2024 without giving any opportunity of hearing to the applicant.
Learned counsel for the applicant further submitted that the applicant has been discriminated as similarly placed employees in Patna GPO has been fixed pay and arrears given under similar provision of law violating Article 14 of the Constitution of India.
Learned counsel submits that the applicant has neither made any misrepresentation nor has played in any fraud in fixation of pay pursuant to CCS(RP) Rules, 2016 and only on audit objection pay fixation was held to be erroneous after more than Central Administrative Tribunaltwo years for non fault of applicant. As such, the learned counsel contends that the applicant cannot be made to suffer for no fault on his part.
Referring to judgment of Hon’ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (Whilte Washwer) (2015) 4 SCC 334, learned counsel argues that recovery of amount paid in excess without fault of recipient is impermissible as postulated in para 18, situations in case of Group C & D employees.
Learned counsel for the respondents argued on the basis of the written statement filed in this OA.
After hearing the learned counsels for the parties and going through the records, I have considered the matter in its entirety and come to the following conclusion:-
First of all, I note that this Tribunal after deliberating various law points granted interim protection to the applicant vide order dated 26.06.2024 whereby order dated 24.02.2024 was kept in abeyance till next date of hearing in the interest of justice. Till date, the interim order is still continuing.
Now, two distinct issues arise for consideration:
whether the respondents were entitled to correct/re-fix the applicant's pay if the earlier fixation was found to be contrary to the applicable rules; and
whether, even assuming that the earlier fixation was erroneous, the respondents were entitled to recover from the applicant the amount already paid to him.
These two issues require separate consideration. The power of the employer to correct an erroneous pay fixation cannot, by itself, be equated with an unfettered power to recover every amount already paid pursuant to such fixation. The legality of the correction of pay and the legality of recovery are distinct questions.
So far as the first issue is concerned, the material on record does not enable this Tribunal to conclusively determine the applicant's precise entitlement to fixation of pay. The applicant has claimed that his basic pay was Rs.60,400/- and was subsequently reduced to Rs.58,600/-. However, the relevant pay-fixation statement and complete chain of fixation orders necessary to determine the correctness of the revised figure have not been placed on record by the applicant. In fact he has not even annexed any paper to demonstrate that his pay in the previous months prior to Annexure A-1 that is the pay slip of March 2024 showing his Basic pay as Rs. 58,600/- was actually Rs. 60,400/-
There is also, an apparent inconsistency in the stand of the respondents regarding the option exercised by the applicant. While one part of the written statement proceeds on the premise that the applicant did not exercise the requisite option within the prescribed period, the respondents themselves have referred to an option dated 05.08.2016 under Rules 5 and 6 of the CCS (RP) Rules, 2016 whereby the applicant is stated to have opted for the revised pay structure with effect from 01.01.2016.
In these circumstances, this Tribunal is not inclined to adjudicate the applicant's precise entitlement to the revised basic pay merely on the basis of the incomplete material presently available. The respondents, however, are required to determine the applicant's pay strictly in accordance with the applicable rules, the option actually exercised by him, the subsequent clarifications/orders governing such option, and the relevant pay-fixation records.
The second issue for adjudication is whether recovery of Rs. 4,06,662/- from the applicant can be sustained.
It is settled by a catena of decisions of the Hon'ble Supreme Court, particularly, State of Punjab & Ors. v. Rafiq Masih (White Washer), (2015) 4 SCC 334, that recovery of excess payment, though otherwise traceable to an erroneous fixation, may be impermissible where such Central Administrative Tribunalrecovery would be inequitable, harsh or arbitrary. This principle has been reflected in the instructions contained in Office Memorandum dated 02.03.2016 issued by the DoPT Government of India that has formalized the direction issued by The Hon’ble Supreme Court of India in State of Punjab & Ors. v. Rafiq Masih (Supra) wherein it has been observed that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. It has summarized the following few situations, wherein recoveries by the employer would be impermissible in law:
“(i)Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group D service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(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 is harsh or arbitrary to such an extent, as would for outweigh the equitable balance of the employer's right to recover.”
The principle in Rafiq Masih does not mean that every erroneous payment is incapable of recovery. The nature of Central Administrative Tribunalthe mistake, the conduct of the employee, the period for which the payments continued, the existence or otherwise of any misrepresentation or undertaking by the employee, and the circumstances in which the payment was made are all relevant considerations.
In the present case, there is no finding, nor has any material been produced before us, that the applicant obtained the benefit by fraud, misrepresentation or deliberate concealment of any material fact.
On the contrary, the case of the respondents is that the pay was fixed by the departmental authorities and was subsequently found to be erroneous on scrutiny of the relevant rules/clarifications. The applicant's case is therefore materially different from a case where an employee had secured an undue financial benefit by suppressing facts or making a false declaration.
The record further shows that the pay fixation was acted upon by the respondents for a considerable period before the recovery was initiated. The applicant cannot, in such circumstances, be treated as if he had himself determined and sanctioned his own pay. The mistake, if any, originated in the departmental fixation of pay.
The respondents have also not placed before this Central Administrative TribunalTribunal any material demonstrating that the applicant had furnished a specific undertaking which, in the facts of the present case, would independently authorise recovery notwithstanding the equitable principles governing recovery of excess payment.
I am also conscious of the fact that the applicant has challenged the very basis on which his pay was re-fixed. The respondents reduced the pay and simultaneously proceeded to recover the alleged excess amount. Such action has civil consequences. Where the factual and legal basis of the re-fixation itself is disputed and the applicant asserts that he had acted upon an option accepted by the department, fairness requires that the applicant's representation and the relevant pay-fixation record be considered before any consequential recovery is imposed.
The present case, therefore, cannot be treated as a simple case of recovery of an admitted debt due from the employee to the Government. The amount sought to be recovered represents salary already paid pursuant to a departmental pay fixation, in respect of which no fraud or misrepresentation on the part of the applicant has been established.
In the facts and circumstances of the case, recovery of Rs.4,06,662/- from the applicant would operate harshly and Central Administrative Tribunalinequitably. The respondent’s authority to rectify an erroneous fixation, if otherwise permissible under the applicable rules, does not automatically confer a right to recover the past payments from the applicant.
Consequently, the impugned order dated 24.02.2024, insofar as it directs recovery of Rs.4,06,662/- from the applicant, cannot be sustained. The amount, if already recovered pursuant thereto, shall have to be refunded to the applicant.
At the same time, this Tribunal makes it clear that quashing of the recovery does not amount to a declaration that the applicant is entitled to a basic pay of Rs.60,400/- as claimed by him. The question of correct pay fixation has to be determined by the competent authority on the basis of the applicable provisions and the complete records.
Accordingly, the Original Application is partly allowed in the following terms:
The order dated 24.02.2024, insofar as it directs recovery of Rs. 4,06,662/- from the applicant on account of alleged excess payment, is quashed and set aside.
Any amount if already recovered from the applicant pursuant to the impugned order shall be refunded to him within eight weeks from the date of receipt of a copy of this Central Administrative Tribunal order.
The respondents shall re-examine the applicant's pay fixation strictly in accordance with the CCS (RP) Rules, 2016, the option actually exercised by the applicant, the applicable law/rules/procedures, and the relevant pay-fixation records. If any adverse decision affecting the applicant's pay is proposed on the basis of disputed facts or documents, the applicant shall be afforded a reasonable opportunity to submit his representation before a final decision is taken.
The competent authority shall pass a reasoned and speaking order on the question of pay fixation within twelve weeks from the date of receipt of a copy of this order and communicate the same to the applicant.
The interim order dated 26.06.2024, whereby the impugned recovery was kept in abeyance, shall stand merged in the present order.
In the facts and circumstances of the case, there shall be no order as to interest and costs.