AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
By way of the instant Original Applicant filed by the applicant, the following relief have been prayed for:-
“i)Quash and set aside the Impugned Orders dated 06.10.2016, 13.11.2017 and 06.03.2018;
ii) Respondents may kindly be directed to re-fix the pay of the applicant to its original pay w.e.f. 01.01.1985;
iii) Respondents may kindly be directed to refund the recovered amount of Rs.7,51,691/- to the applicant with interest @ 8% per annum till actual payment;
iv) Award cost in favour of the applicant and against the respondents; and
v)Pass such other and further orders which this Hon’ble Tribunal deem appropriate and proper in the facts and circumstances of the case.”
Learned counsel for the applicant stated as under:-
The applicant initially joined the respondent department as Senior Physical Education Teacher [hereinafter referred to as SPET] on 25.07.1985 and was subsequently promoted as Post Graduate Teacher (Physical Education) [hereinafter referred to as PGT (PE)]. He was further promoted as Supervisor (Physical Education) on 01.04.2011 from which post he retired on attaining the age of superannuation on 28.02.2018.
The respondents issued three impugned orders against the applicant. By first impugned order dated 06.10.2016, his pay was re-fixed w.e.f. 01.01.1986 to 31.05.2017 without issuing any show cause notice. He received order dated 08.06.2017 asking him to submit the due drawn statement w.e.f. 25.07.1985 to 01.07.2015 to prepare arrear bills. By second impugned order dated 13.11.2017, it was informed that the deductions to the tune of Rs.7,51,691/- were being made on the basis of LPC issued by his previous office. By the last impugned order dated 06.03.2018 issued after his retirement, the applicant was shocked to know that an amount of Rs.4,76,366 had been recovered from the gratuity payable to him. In a nutshell, a total amount of Rs.7,51,691/- had been recovered from the applicant in two spells i.e. first deduction to the tune of Rs.2,75,325/- on the basis of LPC and the second deduction to the tune of Rs.4,76,366/- from his gratuity amount.
The act of the respondents in recovering the alleged amount from the gratuity of the applicant consequent upon re-fixation of his pay without issuing any show cause notice is against the principle of audi alteram partem, and the impugned orders deserve to be set aside in view of the decision of the Hon’ble Supreme Court in State of Punjab & Ors. vs. Rafiq Masih (White Washer) [2015(4) SCC 334] and subsequent decision of Hon’ble High Court of Delhi in Mahanagar Telephone Nigam Ltd. vs. Shri Ramdhan Gupta & Anr. [WP(C) No.1558/2019 decided 15.02.2019].
Per contra, the respondents have filed a counter affidavit opposing the claim of the applicant and stated as under:-
The applicant joined this Directorate as PET on 27.07.1985 and was promoted to PGT(PE) on 06.07.1998. He further got promoted as Supervisor (PE) on 01.07.2011. As he was working as Senior Physical Supervisor, Zone-2, Directorate of Education in 2016, consequent upon revision of pay scale of PET vide Office Order No.3 dated 02.03.1995, his pay was then revised.
The said revision of pay was incorrect as the Office Order No.3 was applicable only for 17 persons who were parties to OA No.1526/1990 and CWP No.5714/1999, hence his pay was re-fixed vide order dated 21.10.2016. A copy of the said revision of pay with reasons for re-fixation was given to the applicant in person under his signature on 24.10.2016. He was asked to submit due and drawn statement for preparation of recovery. Subsequently, an order dated 13.11.2017 had been passed whereby representation of the applicant was rejected and recovery of over payment w.e.f. 01.01.1986 to 31.05.2017 was made from his retirement gratuity on 06.03.2018.
Heard Sh. Ashish Nischal, learned counsel for the applicant, Ms. Purnima Maheshwari, learned counsel for the respondents and perused the material available on record as well as citations relied upon by the leaned counsel for the applicant.
Stand of the learned counsel for the applicant is that the impugned orders dated 13.11.2017 and 06.03.2018 are against the dictum of the decision of Hon’ble Supreme Court in Rafiq Masih (supra) and of Hon’ble High Court of Delhi in Ramdhan Gupta (supra). He also claims that all the three impugned orders had been issued without putting the applicant to show cause notice which is against the principles of natural justice as has been endorsed by several judgments/orders, pronounced from time to time.
Having gone through the decision in Rafiq Masih (supra), it is seen that following conditions have been laid down therein:-
“12.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. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise 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.”
During the course of arguments, learned counsel for the applicant conceded that the case of the applicant is not covered under sub-para (i) of para 12 of the aforesaid judgement quoted above, but is covered under sub-paras (ii) and (iii) of Para 12 thereof. The facts of the case and the impugned orders placed on record by the applicant show that two of the three orders had been issued to the applicant prior to his retirement. As far as applicability of para no.12 (iii) of the aforesaid decision is concerned, the pay of the applicant was re-fixed vide order dated 06.10.2016 after he had exercised his option dated 07.09.2016 with a clear undertaking to the following effect:-
“I hereby undertake that in the event of my pay having been fixed in a manner contrary to the provisions contained in the CCS (Revised Pay) Rules, 2016 as detected subsequently, any excess payment so made shall be refunded by me to the Government either by adjustment future payments due to me or otherwise.”
It is seen that though the revision of pay was to be done only for 17 persons who were parties to OA No.1526/1990 and CWP No.5714/1999, pay of the applicant had also been revised inadvertently. When the said mistake qua revision of pay came to light, the respondents re-fixed the pay of the applicant correctly vide order dated 06.10.2016 on obtaining option/undertaking from the applicant.
Since the applicant had already given his option to the effect that if his pay is found to be fixed contrary to the rules, he shall refund the excess amount so paid to him consequent upon re-fixation of pay. Hence, the decision in Rafiq Masih (supra) will not come to his rescue.
Insofar as non-issue of show cause notice to the applicant is concerned, while re-fixing his pay, vide order dated 08.06.2017, he was directed to submit due and drawn statement from 25.07.1985 to 01.07.2015 in order to prepare the bill. The aforesaid communication clearly reveals that the applicant was well aware of re-fixation of pay as well as recovery on account of an earlier wrong fixation and the respondents were well within their right to recover the same.
Another important point to be seen here is that not only did the applicant give the aforesaid undertaking regarding recovery, but also that the recovery had started much prior to his retirement as is evident from order dated 13.11.2017. Thus, the plea of the applicant that he had not been put to show cause notice and/or was not aware of the recovery, is found to be factually incorrect.
In the conspectus of the facts and circumstances brought out above, I am of the considered opinion that the instant OA is bereft of merit. Hence, the OA is hereby dismissed.
No order as to cost.