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Judgment
Pramod Kumar Das, Member (A)
Applicant, who retired voluntarily w.e.f. 31.01.2020, is aggrieved by the objection of CCA Team (Pay and Accounts Officer for Telecom & BSNL employees) alleging his wrong pay fixation w.e.f. 01.01.1996 onwards. It is submitted by Ld. Counsel for the applicant that without giving him any show cause notice, the DGM, Bhawani Patna reduced his pay from 23,440/- to 21,730/- and, consequently, asked to refund the excess payment to the tune of Rs. 5,15,339/- vide letter dated 13.04.2020 (A/2). Applicant submitted representation stating inter alia that since he retired as Group 'C' employee, no amount can be recovered from him as per Govt. of India O.M. dated 02.03.2016 (A/6) issued as per the orders of Hon'ble Supreme Court dated 18-12-2014 passed in case of State of Punjab & others Vs. Rafiq Masih (White Washer) & others, (2015) 4 SCC 334. It is alleged by the Ld. Counsel for the applicant that the DGM, Bhawanipatna (Respondent No.3) recovered the alleged excess payment from applicant’s DCRG and Leave Salary. Hence, by filing this OA, applicant has prayed for the following reliefs:
(A) to quash the order of reduction of pay with retrospective effect and consequential order of recovery of Rs. 5,15,339/-dated 13.04.2020 (Annexure A/2).
AND
(B) to direct the Respondents to refund the amount of Rs. 5,15,339/- which has been irregularly recovered from the exgratia amount and leave salary amount of the applicant towards the so called excess payments or wrong payments made to the applicant due to wrong pay fixation from January-1996 to January-2020 along with interest at the rate applicable for fixed deposits under the Senior citizen savings scheme of Government of India as applicable on the date of recovery from the date of recovery to the actual date of payment,
AND
(C) to pass Appropriate orders directing the respondents not to reduce the pay of the applicant and consequently direct the respondents to grant him pension and pensionary benefits based on his last pay drawn of Rs.23440/-as on 31-1-2020.
And
(D) pass such other order(s)/direction(s) as may be deemed fit and proper in the bonafide interest of justice.”
Respondents filed their counter justifying their action. It is submitted by them that as per standard procedure the Service Book of the applicant was verified by the Controller of Communication Accounts, Odisha Telecom Circle before his retirement. Since inadvertent mistake was detected in the pay fixation by the CCA during verification, necessary correction was made in the Pay Regulation Sheet and LPC was issued with basic pay of Rs. 21,730/-, which is well within the jurisdiction of the competent authority. On calculation, overpayment was calculated to the tune of Rs. 5,15,339. The said fact was intimated to the applicant by Respondent No. 3 and he was requested vide Letter dtd.13.04.2021 to refund the excess payment of Rs. 5,15,339/- in order to process and finalize his retirement and pensionary benefits. Subsequently, the said amount was adjusted from his VRS benefits. It is submitted by Ld. Counsel for the applicant that it is not the recovery but the adjustment of excess payment made to the applicant erroneously, which is in tune with the terms and conditions of the BSNL VRS-2019 Guidelines dated 04.11.2019. Relevant provision of the said Guidelines is quoted hereunder:
“Para-6.1: Lumpsum compensation of ex-gratia
(f): Payment of the amount of Ex-gratia and Gratuity shall be subject to recovery of dues outstanding against the employee and deduction of tax at source as per provisions of Income Tax act, 1961 in force on the date of payment.
General Conditions-
15 (iv) All payments under the Scheme and any other benefit payable to the employee(s) by BSNL shall be subject to prior settlement /re-payment in full of loans, advances, returning of property and any other dues payable by such employee(s) to BSNL.
Provided that such employees can give an option to settle the pending dues to BSNL from the amount of payment under Ex-Gratia, Gratuity or other retirement benefits."
Stating inter alia that CCA Odisha is the final pension paying authority and the service books of the employees are subject to the verification by the CCA before issuing the PPOs, Ld. Counsel for the respondents submits that this OA being devoid of any merit is liable to be dismissed.
Applicant has filed rejoinder reiterating the facts and the grounds taken in the OA. The only contention of the applicant is that respondents are refrained from making correction in his service book after his VRS on the objection of the CCA Team that his pay as on 01.01.1996 was erroneously fixed at Rs. 3170/- instead of 2960/-. However, in course of hearing, Ld. Counsel for the applicant has fairly submitted that he confines his prayer only insofar as recovery of Rs. 5,15,339/- from his exgratia amount and does not press the other reliefs sought in this OA. In this regard, he has relied on the decision of the Hon’ble Apex Court in the cases of Jogeswar Sahoo vs The District Judge, Cuttack in Civil Appeal No.…….of 2025 (Arising out of SLP(C) No(s). 5918/2024 dated 04.04.2025 and in Thomas Daniel Vs State of Kerala & Ors in Civil Appeal No. 7115 of 2010.
Ld. Counsel for the both sides during the course of hearing have led emphasis on the points raised in their respective pleadings and after giving due consideration to their arguments, perused the records.
As stated above, since Ld. Counsel for the applicant confines his relief that recovery of Rs. 5,15,339/- from his DCRG is bad in law, we are not inclined to deal with the other part of the stand and relief taken by the applicant in the OA, i.e. as to the correctness of the refixation of his pay is concerned.
In Rafiq Masih (supra), 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, as in the present case. Their Lordships considered the situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
“18. 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 hereinabove, we may, as a ready reference, summarise the following 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 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.”
As per the aforesaid decision of the Hon’ble Apex Court, the recovery being the excess payment due to wrong fixation of pay starting from 01.01.1996 and such wrong fixation being not attributable to the applicant, he would have been paid full amount of DCRG instead of paying the DCRG after making deduction of Rs. 5,15,339/-, which has caused him financial hardship as alleged by him. We find that the respondents department did so without due application of mind and the law. Recovery of excess payment made in the circumstances, as in the present case, has also been forbidden by the Hon’ble Apex Court in the case of Jogeswar Sahoo Vs The District Judge, Cuttack in Civil Appeal No.…….of 2025 (Arising out of SLP(C) No(s). 5918/2024 dated 04.04.2025. In the aforesaid facts and circumstances of the case, as also the law, we declare that the recovery of Rs. 5,15,339/- from the DCRG of the applicant is bad in law being opposed to the law laid by the Hon’ble Apex Court in the case of Rafiq Masih (supra) and Jogeswar Sahoo (supra). Hence, the respondents are hereby directed to refund the amount of Rs. 5,15,339/- to the applicant within a period of 30 days hence; failing which, the applicant shall be entitled to interest @ 8% per annum from the date it became due till the payment is actually made to him with liberty that the amount of interest payable to the applicant shall be recoverable from the officer/official responsible for the delay in making payment.
In the result, the OA stands allowed to the extent stated above. No costs.