AI Structured Summary
Not yet generated for this judgment
Judgment
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:
“(a)Call for records of the case from the respondents and on perusal
(b)Quash and set aside the impugned letter No. 20802/EST(IND) dated 27.07.2022 (Annexure: A4) passed by respondent No.3 and impugned undated Pension Payment Order No. 834202500231 (Annexure A6) passed by 4th respondent in so far as it relates to recovery of amount from his gratuity;
(c)Issue a direction to the respondents 3 to 5 to refund the recovered amount of Rs.5,69,134/- forthwith together with interest thereon from the date of recovery till the date of repayment.
(d)Grant such other relief/s as this Hon’ble Tribunal deems fit to grant to the applicant in the circumstances of the case including an order as to costs of this OA for unnecessarily driving the applicant to institute unavoidable litigation on a pensioner.”
The facts in brief as narrated by the applicant are that he was appointed as Labourer on 16.09.1989 and was promoted as Turner Mate on 25.11.1997 and further as Turner Skilled on 23.03.2001. At that point of time the rules applicable for career prospects was SRO 1/1988 which became operational with effect from 30.01.1988. The applicant was promoted to the post of Turner HS II with effect from 01.01.2006. SRO 29/2006 came into effect from 18.02.2006. Consequent to the constitution of a Board of officers convened on 25.07.2012 for the purpose of ascertaining the seniority as on 18.02.2006 of all civilian industrial trades including the merged trades, the applicant was placed in the merged grade of machinist HS II. Some of the applicants who were appointed after 2002 approached this Tribunal seeking for their promotion from the date of the promotion of their juniors which was allowed, against which, Union of India approached the Hon’ble High Court of Karnataka in Writ Petition Nos. 31240/2015 and 53718/2016 which came to be disposed of holding that the respondents are free to review all promotions granted after coming into force of SRO 29/2006. It has been further observed that it is needless to mention that in case any situation arises for reversion of an employee, the respondents shall issue proper show cause notice before reverting any employee while finalizing the promotions keeping in view the Recruitment Rules. Consequent to which, the respondents have reviewed the promotions after issuing the show cause notices and considering the reply. The date of placement of the applicant as Turner HS I which was given from 01.01.2006 was reviewed and was placed at Machinist HS II with effect from 18.02.2006 and Machinist HS I with effect from 21.08.2014. The applicant retired from service on attaining the age of superannuation on 31.07.2025. The respondents have calculated the excess paid salary and allowances from 01.01.2006 till July, 2025 and an amount of Rs. 5,69,134/- has been deducted from the applicant's retirement gratuity. Being aggrieved, the applicant has preferred this OA.
Learned counsel Shri B.S. Venkatesh Kumar representing the applicant submitted that the applicant joined service in the year 1989 and the reliance placed by the respondents on the judgment of the Hon’ble High Court referred to supra, is not applicable as the observation of the Hon’ble High Court is only to the extent of the respondents being free to review the promotions after coming into force of SRO 29/2006 which came into effect from 18.02.2006 whereas the applicant was appointed when the SRO 1/1988 was in operation. The respondents re-fixed the pay of the applicant by virtue of illegal review of promotion and reduced the pay of the applicant from 01.01.2006 just a few months prior to the date of retirement of the applicant. The respondents have recovered the amount of Rs.5,69,134/- from the Retirement Gratuity of the applicant towards overpayment of pay which is against the rulings of the Hon’ble Apex Court in State of Punjab & Ors vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 and Thomas Daniel v. State of Kerala reported in 2022 SCC OnLine SC 536. Hence, seeks for the reliefs claimed.
Detailed reply statement has been filed on behalf of the respondents. Learned counsel Shri N.Amaresh representing the respondents submitted that the applicant was placed in Highly Skilled Grade I in Turner trade with effect from 01.01.2006, prior to merger of trades with effect from 18.02.2006. As per the directions of the Hon’ble High Court of Karnataka dated 23.03.2021 in Writ Petition No. 31240/2015 and Writ Petition No. 53718/2016, promotions were required to be granted on the unified list (i.e., list after merger of trades with effect from 18.02.2006). Accordingly, on review of promotions based on the order of the Hon’ble High Court of Karnataka, the applicant was placed as Machinist Highly Skilled Grade II with effect from 18.02.2006 and subsequently as Machinist HS I with effect from 21.08.2014. The pay of the applicant has been re-fixed, and accordingly, an excess amount of Rs. 5,69,134/- paid was intimated to him vide letter dated 18.03.2025. Hence, seeks for dismissal of the OA.
Heard the learned counsel appearing for the parties and perused the material on record.
The factual aspects are not in dispute. It is apt to refer to the background of this case. The applicant is Group ‘C’/Class III employee. Modification of grade structure as shown hereunder was introduced vide Ministry of Defence, Government of India’s letter dated 14.06.2010 which was to be implemented from 01.01.2006:
(a)Skilled - 45%
(b)Mastercraftsman - 25% of remaining 55%.
(c)Highly Skilled I Remaining posts divided in a
(d)Highly Skilled II ratio of 50:50
Accordingly, the applicant was placed in Highly Skilled Grade 1 in Turner trade with effect from 01.01.2006. However, as per the directions of the Hon’ble High Court of Karnataka in Writ Petition No. 31240/2015 and connected matter, promotions were to be granted in the unified list i.e., after merger of trades with effect from 18.02.2006. In view of the liberty reserved to the respondents to review all promotions done after 2006 keeping in view the statutory Recruitment Rules known as Corps of Electronics and Mechanical Engineers (Industrials) Recruitment Rules, 2006, the applicant was placed in Machinist Highly Skilled Grade II with effect from 18.02.2006 and Machinist Highly Skilled Grade I with effect from 21.08.2014. At the time of retirement of the applicant on 31.07.2025 on attaining the age of superannuation, as per the PPO, a sum of Rs. 5,69,134/- was recovered from his Retirement Gratuity.
In OA No. 371/2022 (DD 05.06.2024, Shri Tazimulla Shariff S.D., and ors. vs. the Union of India and ors.), this Tribunal, on adjudicating the identical issue regarding re-fixation of pay and recovery, upholding the re-fixation of pay based on the order of the Hon’ble High Court of Karnataka in Writ Petition Nos. 31240/2015 and connected matter, placing reliance on the judgment of the Hon’ble Apex Court in the case of Rafiq Masih (White Washer), supra, and Thomas Daniel v. State of Kerala, supra, quashed the recovery proceedings initiated against the applicants therein. This decision is squarely applicable to the facts of the present case as far as the recovery of Rs.5,69,134/- from the applicant's Retirement Gratuity amount is concerned.
It is not in dispute that due to any misrepresentation/fraud played by the applicant any excess payment has been made. Wrong promotion given to the applicant on a mistaken notion has been set right in compliance with the directions issued by the Hon’ble High Court of Karnataka referred to supra. At this juncture, it is beneficial to refer to the relevant paragraphs of OM dated 02.03.2016 issued by the DOPT considering the case of Rafiq Masih (White Washer), supra, and the same reads thus:
“4.The Hon'ble Supreme Court while observing 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 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.
(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 harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
In the light of the aforesaid OM which is based on the legal principles enunciated by the Hon'ble Apex Court, no recovery could have been made from the Retirement Gratuity of the applicant, a Group ‘C’ employee at the time of settlement of his retiral benefits there being no misrepresentation or fraud played by him, more particularly, when the applicant has worked in the promoted post during the subject period and the excess payment is attributable to wrong promotion granted by the authorities.
It is apt to refer to the judgment of the Hon’ble Bombay High Court in the case of Subhash Nimba Chavan vs the State of Maharashtra in Writ Petition No. 6440/2024 and connected matters (DD: 01.07.2024) wherein, it is held that the undertaking extracted at the stroke of retirement, is taking advantage of helplessness of such petitioners who were at the verge of the retirement, where at the time of calculating their retiral benefits, an undertaking is extracted. Thus, it is settled law that at the time of superannuation of an employee, asking him to tender an undertaking, practically amounts to an afterthought on the part of the employer and a mode of compelling the employee to execute an undertaking since they are apprehensive that their retiral benefits would not be released until such undertaking is executed. Such an undertaking will not have same sanctity of an undertaking executed when the payment of revised pay scale had commenced. Taking into account that the applicant was not involved in any mischief, fraud or deceit in orchestrating his wrongful pay revision, law laid down in Rafiq Masih, supra, would apply. Undertaking taken in the coercive circumstances at the stroke of retirement from the employee would not exonerate the employer from his liability to refund if the case falls under the four corners of Rafiq Masih, supra, more particularly, in the background of the case where on the liberty reserved to the employer, review of promotion has been made resulting in consequential change in promotional dates also. This Tribunal has to lift the corporate veil to find out the real truth in giving the undertaking at the verge of retirement of an employee. Blindly, no support could be given to such an undertaking. As such, excess amount paid could be recovered from the Group ‘C’ employee from his retiral benefits.
For the reasons aforesaid, the respondents are directed to refund the recovered amount of Rs. 5,69,134/- (Rupees Five Lakhs Sixty Nine Thousand, One Hundred Thirty Four only) to the applicant in an expedite manner, in any event not later than eight weeks from the date of receipt of certified copy of this order.
OA stands disposed of in terms of above. No order as to costs.