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Judgment
PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER:
This application has been preferred to seek the following relief:
“8.1.That the Hon’ble Tribunal be pleased to set aside and quash the Impugned letter dated 12.08.2022 (Annexure A\1), impugned Memorandum dated 20.10.2022 (Annexure A2), impugned letters dated 14.11.2024 and 24.01.2025 (Annexure- A4 and AS respectively).
8.2.The Hon’ble Tribunal be pleased to direct the respondents to refund the applicant the amount of Rs. 15,89,644/- recovered from his DCRG on 06.01.2023 with interest @ 12% p.a.
8.3.The Hon’ble Tribunal be pleased to direct the respondents to restore the pay of the applicant as Rs, 8125/- w.e.f. 01.01.1996 and re-fix his pay, monthly pension and all pensionary benefits viz; DCRG, leave encashment and pay the arrears after setting aside of the impugned orders as in para 8.1.
8.4.Cost of the application.
8.5.Any other relief or reliefs as the Hon’ble Tribunal may deem fit and proper, including the cost of the case.”
Applicant was appointed as Engineering Assistant in the scale of Rs.1400-2600/- by order dated 31.05.1988 and retired on superannuation on 31.10.2022.
The grievance of the applicant is that, the respondents vide impugned letter dated 12.08.2022 refixed his pay and downgraded as Rs. 7900/- instead of Rs. 8125/- behind his back retrospectively w.e.f. 01.01.1996. Applicant is also aggrieved with the impugned Memorandum dated 22.10.2022 issued consequently whereby an amount of Rs. 15,89,644/- was sought to be recovered from the pensionary benefit (DCRG). He is also aggrieved with impugned letters dated 14.11.2024 and 24.01.2025, whereby the grievances of the applicant against refixation by letter dated 12.08.2022 and recovery by Memorandum dated 22.10.2022, have been rejected.
Sri S. Nath, learned counsel for the applicant submits that vide the impugned order dated 12.08.2022, Respondent no. 3 addressed to the Respondent no. 5 making an observation in respect of the pension case of the applicant that the pay fixation as on 01.01.1996 is found wrong. It was mentioned that the pay as on 01.01.1996 should be Rs. 7900/- instead of Rs. 8125/- and promotional benefit was already availed by him at the time of promotion from Engineering Assistant to Sr. Engineering Assistant. Thereafter, the Respondent no. 5 issued the impugned Memorandum dated 22.10.2022 informing the applicant that as per PAO/AIR, Kolkata’s letter dated 12.08.2022, his pay is refixed w.e.f 01.01.1996 and excess amount of Rs. 15,89,644/- has to be deposited towards excess amount of pay and allowance paid to him to the cash section within 15 days, failing which the said amount would be recovered from the retirement gratuity.
Being aggrieved, applicant submitted several grievance petitions and representation also on 17.02.2025. Another grievance petition dated 18.12.2024 was disposed by the impugned letter dated 24.01.2025 where there is no clarification as to how the pay fixation of the applicant as on 01.01.1996 was wrong and also no statement of re-fixation of pay of the applicant was forwarded along with the impugned letter dated 14.11.2024 and 24.01.2025. As a result the applicant is unable to understand how the pay of the applicant was wrongly fixed on 01.01.1996 that is more than 26 years prior to retirement of the applicant and also the applicant was not awarded how the amount of Rs. Rs. 15,89,644/- was calculated for recovery from gratuity of the applicant.
Learned counsel for the applicant avers that in absence of his service book or any clear order regarding fixation of pay he is not in a position to recollect and determine his due pay as on 01.01.1996 at this distant point of time over 25 years from the date of fixation. Today he does not even remember as to what was his pay as on 01.01.1996. The Impugned order dated 12.08.2022 is vague and non-speaking. It does not disclose as to how the purported correct fixation of Rs. 7900/- as on 01.01.1996 has been determined or how the purported wrong fixation of Rs. 8125 has been determined. He could not understand how his promotion from EA to SEA is connected to such alleged wrong fixation of pay. The manner in which the alleged excess amount of Rs. 15,89,644/- has been determined has also not been communicated to the applicant.
Learned counsel for the applicant further submits that it is the settled position of law that an administrative order should speak for itself and the action of the respondents is violative of the said position of law. The amount sought to be recovered i.e Rs. 1589,644/- from the pensionary benefit of the applicant, who is a group C retired employee in respect of alleged excess payment relating to 01.01.1996, which was ultimately recovered on 06.01.2023, is in gross violation of the settled position of law of the Hon’ble Supreme Court in State of Punjab & Others vs. Rafiq Masih {(2014) 8 SCC 883], DOPT OM dated 02.03.2016 and principles of natural justice, malice and malafide against the applicant.
Learned counsel also place reliance on the judgement rendered by the Hon’ble Supreme Court in Bhagwan Shukla v. UOI : [(1994) 6 SCC 154] which has been pleased to hold that the order of re-fixation downgrading of pay of the applicant done retrospectively behind the back of applicant to be unsustainable thereby setting aside the same, held as under:
“The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not, even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter.”
According to respondents, Applicant was appointed as Engineering Assistant on 31.05.1988 at All India Radio, Itanagar, Arunachal Pradesh in the pay scale of Rs. 1440-40-1600-50-2300-EB-60-2600 which is generally classified as a Group "C" (Class-III) post Non-gazetted position. He was transferred on promotion as Senior Engineer Assistant to All India Radio, Silchar and joined on 21.03.1999 (AN) in the pay scale of Rs.1640-60-2600-EB-75-2900. The scale was later revised and SEAS were first placed in Rs.5500-9000/- and again in revised scale corresponding to Rs.7450-225-11,500/- w.e.f. 01.01.1996 following the 5th CPC recommendation which is generally considered a Group-B (Non-Gazetted) post that was merged and upgraded to the Grade Pay of Rs,4200 or Rs.4600 in the Pay Band-2 (PB-2 under the 6th CPC) w.e.f. 01.01.2006. At the time of promotion of SEA at All India Radio, Silchar the applicant who was Group-B (NGO) was drawing pay scale of Rs. 7450-225-11500/- and his Pay was Rs.8125/- w.e.f. 01.04.1997 which is wrong and objected by PAO, AIR, Kolkata at the time of his retirement, resulted in recovery of Rs. 15,89,644/-which correct and justified, as per the respondents.
That prior to recovery, notice was given to the applicant but he deliberately choose not to reply and remained silent during his service period and eventually retired on 31.10.2022.
The applicant in this OA has clearly admitted that as per letter dated 12.08.2022, his was refixed w.e.f. 01.01.1996 and therefore an excess amount of pay & allowances of Rs. 15,89,644/- (Rupees Fifteen Lakhs Eighty Nine Thousand Six Hundred & Forty Four) was paid to him during his service period which he is not entitled and the benefit of Pay fixation already availed by the applicant during the service period is well known to him and he failed to bring to the notice of the Department knowingly or unknowingly and this is serious lapse on his part as a Govt. servant .
That, the O.M. dated 02.03.2016, in Para-3(iv) specifically provides that recovery should be made in all cases of overpayment barring few exceptions of extreme hardships. Applicant being Group-B (NGO) received various payments like GPF, Gratuity, Leave encashment etc may not get Exemption or excuse of financial hardships. The PAO, AIR Kolkata has made observations in the pay fixation of the Applicant that as on 01.01.1996 is wrong and the applicant has drawn Pay of Rs.8125/- w.e.f. 01.01.1996 instead of Rs.7900/- and no Audit or Department has made any verification of Service Book of the applicant. According to the observation of PAO, AIR Kolkata, Applicant has been served notice.
Respondents further submitted that in extremely exceptional cases Group -B official (and all government employees) can submit a representation requesting the employer not to deduct wrongful pay from gratuity while recovery of excess payments due to wrong pay fixation is legally permitted. In that connection the Hon'ble Supreme Court of India has laid down specific guidelines, more specifically in the Judgment & Order passed in the case of State of Punjab & others -vs- Rafiq Masih, which prohibit such recoveries in case of extreme hardship or if the employee is retiring within one year. The applicant being a Group-B official facing this issue, could have file a detailed written representation highlighting his hardships (e.g. medical expenses, dependency, loans etc) but in the present case in hand, no such representation or documents of the applicant is available seeking consideration of the case of the applicant.
Further, the ratio as cited in Bhagwan Shukla Vs UOI [(1994) 6 SCC 154] and O.A No. 166/2019 [Shri. Ajendra Nath Sarma Vs. UOI] of CAT, Guwahati Bench and other cases as relied by the applicant are not applicable in this present case.
We have heard the learned counsel for the parties and perused the pleadings and materials on record.
It is an admitted case of the applicant that the respondents vide order dated 12.08.2022 refixed his pay and downgraded his pay as Rs. 7900/- instead of Rs. 8125/-retrospectively w.e.f. 01.01.1996 stating that the pay was wrongly fixed and as per objection raised by PAO, AIR, Kolkata, resulted in recovery of Rs. 15,89,644/- from his pensionary benefit (DCRG).
It is a settled law by the Hon'ble Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) AIR 2015 SC 696, wherein the Hon’ble Apex Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. It was further held 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. The Hon'ble Supreme Court also summarized the few situations, wherein recoveries by the employers, would be impermissible in law:
“(i)Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii)Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from the 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 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."
A similar view was also taken by the Hon'ble Supreme Court in the case of Thomas Daniel Vs State of Kerala & Others 2022 Live Law (SC) 438 by observing that relief against the recovery is granted not because of any right of the employees, but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered, particularly, when an employee had no role for the excess payment made to him by the employer.
The action of the respondents in recovering the excess amount of Rs. 15,89,644/- from the DCRG due to wrong fixation of pay due to administrative error or lapses, that too, after lapse of considerable period of time, approximately after 25 years, is arbitrary and the same cannot be sustained.
In view of the facts and circumstances, the impugned recovery order dated 20.10.2022 (Annexure A/2) is hereby quashed and set aside. The respondents are directed to refund the recovered amount from the DCRG within a period of 3 months from the date of receipt of copy of this order.
With the above observations and directions the O.A is partly allowed with no order as to costs.