Union of India and Others vs D. Jayaramu

Mohan M. Shantana Goudar, J.—The order dated 19th November 2013 passed by the Central Administrative Tribunal (''CAT'' for short), Bangalore Bench in Original Application No. 717/2012 is assailed in this writ petition.

Brief facts leading to filing of this writ petition are as under:

"Respondent was initially appointed for the post of Gramin Dak Sevak (''GDS'' for short), Branch Post Master, Madarahalli Branch Office, Mandya district. He was engaged as a jeep driver for certain period as an outsider from 5.6.2006 in Mandya Division as there was no post of jeep driver in the said Division. There was no sanctioned post of Jeep driver also to the Divisional office. The respondent worked in the aforementioned arrangement for the period from 5.6.2006 to 27.3.2012. Certain of the allowances were allegedly paid to the respondent by the petitioners in respect of both the posts (i.e., GDS and driver) during the period when he was working as a driver. According to the petitioners, the respondent is paid a sum of Rs. 1,02,260/- in excess of the amount for which he is entitled to. Thus the petitioners ordered for recovery of the said sum from the respondent''s Time Related Continuity Allowance (TRCA'' for short). Consequently a notice came to be issued by the petitioners to the respondent as per Annexure-R1 dated 22.10.2010 intimating the respondent that he has been paid excess wages, Bonus and TRCA from 2006-2009 and arrears of CCS (RP) Rules 2007 etc., w.e.f. 1.1.2006. However there was no determination of the amount actually paid by the petitioners to the respondent in excess of his entitlement. Despite the same, by the notice Annexure-R1 dated 22.10.2010, the petitioners informed the respondent that a sum of Rs. 1,000/- per month would be recovered from his pay from the month of September-2010. The respondent gave his reply as per Annexure-R2 dated 5.10.2012 requesting the petitioners that a sum of Rs. 500/- can be deducted from his pay. Ultimately, the notice Annexure-R3 dated 11.10.2012 came to be issued by the petitioners with a direction to recover Rs. 750/- per month from the pay of the respondent. The said notice Annexure-R3 was challenged by the respondent before the CAT in O.A. No. 717/2012, which came to be allowed on 19.11.2013. The said order is impugned in this writ petition."

Undisputedly, the respondent was appointed as Postal GDS. Thus the respondent was governed by the "Gramin Dak Sevaks (Conduct and Employment) Rules, 2001". Earlier to 2001, the respondent and similarly placed employees were called Extra-Departmental Agents (''ED Agents'' for short). There was a demand by the employees like respondent who were working as ED Agents that their nomenclature shall be changed to GDS and consequently a notification came to be issued changing the nomenclature of ED Agents to GDS. However the service conditions remained the same.

Note I and Note II appended to Rule 3(j) of the GDS (Conduct and Employment) Rules, 2001 read thus:

"NOTE I.--The persons holding the posts of Extra-Departmental Agents under the Posts and Telegraphs Extra-Departmental Agents (Conduct and Service) Rules, 1964 on regular basis on the date of commencement of these rules shall be deemed to have been appointed to and hold the posts of Gramin Dak Sevaks in accordance with the provisions of these rules;

NOTE II.--

(i) A Sevak shall not be required to perform duty beyond a maximum period of 5 hours in a day

(ii) A Sevak shall not be retained in employment beyond 65 years of age;

(iii) A Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by the Government for adequate means of livelihood for himself and his family;

(iv) A Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest;

(v) A Sevak shall be outside the Civil Service of the Union;

(vi) A Sevak shall not claim to be at par with the servant of the Government;

(vii) Residence in post village/in the delivery jurisdiction of the Post Office before appointment shall be mandatory for a Sevak;

(viii) Post Office shall be located in the accommodation to be provided by Gramin Dak Sevak Sub-Postmaster/Branch Postmaster suitable for use as Post Office Premises;

(ix) Combination of duties of a Sevak shall be permissible;

(x) A Sevak can be discharged from employment before attaining the mandatory age of 65 years if he is declared prematurely incapacitated for future employment by a Competent Medical Authority."

If the aforementioned provisions are perused carefully, it becomes clear that GDS shall be outside the Civil Service of the Union. In other words, they would not be civil servants of the Union and they cannot be equated to the regular employees of the Union of India. It is further made clear in the Note II that the Sevak shall not claim to be at par with the servant of the Government.

The Department of Posts issued a Memorandum dated 25.5.2007 as per Annexure-A2 in relation to engagement of Gramin Dak Sevaks in short term and leave vacancy of Drivers in Mail Motor Service, Bangalore. It is made clear in the said Memorandum dated 25.5.2007 that whenever the GDS officials are engaged continuously for six days in a week, they are eligible for one day paid weekly off; The GDS officials would be eligible for wages equivalent to that of Drivers on prorate basis calculated on minimum of the scale for each day of engagement; For the days of engagement as drivers, they should apply leave for the GDS post; and they will not be eligible to earn any paid leave in respect of period of engagement as drivers. In other words, if the services of the GDS officials are taken by the department as drivers for transport of mails, they would be paid the wages equivalent to that of Drivers on prorate basis for each day of the engagement. During the said period, the GDS officials shall apply for leave for the GDS post and they will not be able to earn any salary attached to the GDS post in respect of the period of their engagement as drivers. Thus it is clear that the GDS officials who are employed as drivers would be entitled to emoluments as that of drivers on prorate basis and not the salary as paid to GDS officials. According to the petitioners, the respondent is paid certain of the allowances attached to the GDS post for certain period in which he was working as driver and such excess payment made to the respondent is sought to be recovered by them.

However it is the case of the respondent that no excess payment is made in his favour by the petitioners and whatever is paid to him, is as per his entitlement.

It would be beneficial to refer the two Judgments of the Apex Court which touch and deal with the point involved in the matter.

In the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , the Apex Court while considering the matter relating to excess payment made to the employee, observed thus:

"13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

We are concerned with the excess payment of public money which is often described as "taxpayers'' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

Recently in the case of State of Punjab Vs. Rafiq Masih, the Apex Court while considering the very question, laid down certain guidelines for the purpose of effecting recovery from the employee. The Apex Court has specified as to under what circumstances the recovery by the employers would be impermissible in law by concluding 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."

The Apex Court in the case of Rafiq Masih (supra) has referred to various judgments including the case of Chandi Prasad Uniyal. The latest judgment in the case of Rafiq Masih states that the recovery from employees belonging to Class-III and Class-IV service (or Group-C and Group-D service) is impermissible in law.

Sri B. Pramod, learned counsel for the petitioners has tried to overcome the conclusion reached by the Apex Court in the case of Rafiq Masih contending that the respondent is neither the Group-C employee nor the Group-D employee inasmuch as he cannot be treated as a civil servant at all under the Central Government. It is no doubt true that the respondent is not a civil servant under the Central Government. But it is not in dispute that he is performing the duties of Group-D employee i.e., GDS. The facts, on hand also reveals that the respondent has worked as a driver for certain period. In the case of Rafiq Masih, the Apex Court has observed making it clear that Group-C and Group-D employees (employees of lower rung of service) would spend their entire earnings for the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. The following observations of the Apex Court in the case of Rafiq Masih in the context are relevant:

"15. xxx xxx A perusal of the aforesaid observations made by this Court in B.J. Akkara case reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from the employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that the employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e. Class III and Class IV-sometimes denoted as Group C and Group D) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India."

Prima facie it appears that the Apex Court, in the case of Rafiq Masih, did not want the Government to recover from the employees of lower rung of service because of the hardship that would be caused to them. Since it is observed by the Apex Court that the excess payment made in favour of the Group-C and Group-D employees shall not be recovered, the same dictum may be applicable to the respondent also who is working as a GDS, though not in permanent post. His salary is admittedly lower than the salary of a person working in Group-D post. If it is so, if the recovery is made from the respondent, far more hardship would be caused to him than the regular Group-D employee. Thus prima facie it appears that in case if the recovery is effected against the respondent, it would go against the intent of the Apex Court found in the case of Rafiq Masih.

Be that as it may, this factor also needs to be kept in mind and considered by the petitioners while coming to the conclusion. If and only if the petitioners find that the respondent is paid higher salary than that of permanent employee occupying Group-C and Group-D posts, the recovery can be made from the respondent.

Curiously though the respondent has disputed the excess payment, the petitioners have not proceeded to determine the exact amount allegedly paid in excess by them to the respondent. Without quantifying the amount which was allegedly paid in excess to the respondent, the petitioners are seeking to recover Rs. 750/- per month from the salary of the respondent. Merely because the respondent has written letter to the petitioners that a sum of Rs. 500/- per month may be recovered from his salary, the same cannot be treated as admission made by him inasmuch as according to him, he has submitted such an application under pressure.

Be that as it may, in all fairness, there should have been determination of the amount which allegedly paid in excess by the petitioners to the respondent. Without such determination or quantification, it is not open for the petitioners to recover any sum from the respondent. It is needless to observe that before such determination, the respondent shall be notified and he should be given an opportunity to have his say in the matter. In view of the same, the impugned order passed by the CAT and so also the notice Annexure-R3 dated 11.10.2012 issued to the respondent by the petitioners intimating the respondent that a sum of Rs. 750/- per month would be recovered from him are liable to be quashed.

Accordingly, we pass the following:

"1. The impugned order dated 19th November 2013 passed by the Central Administrative Tribunal, Bangalore in Original Application No. 717/2012 stands quashed.

The notice Annexure-R3 dated 11.10.2012 issued by the 2nd petitioner to the respondent intimating him that a sum of Rs. 750/- per month would be recovered from him stands quashed.

There shall be determination or quantification of the amounts allegedly paid in excess in favour of respondent. The respondent shall be notified by the petitioners before proceeding to determine the amount which was allegedly paid in excess of his entitlement.

It is open for the respondent to furnish all the details before the concerned authorities to support his contentions. Ultimately, on merits, if it is found that respondent is paid in excess of his entitlement, the exact amount which was paid in excess of his entitlement shall be quantified and thereafter the recovery shall be made in easy monthly installments."

Writ Petition is allowed with the above observations.