Central Administrative Tribunal - ErnakulamC Raveendran vs The Secretary Ministry Of Personnel And ... on 23 September, 2022-1-\n\n             CENTRAL ADMINISTRATIVE TRIBUNAL\n                    ERNAKULAM BENCH\n\n                Original Application No.180/01012/2018\n\n               Friday, this the 23rd day of September 2022\n\nCORAM:\n\nHON'BLE Mr.JUSTICE K.HARIPAL, JUDICIAL MEMBER\nHON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER\n\nC.Raveendran,\nS/o.late Krishnan,\nAged 58 years,\nUpper Division Clerk,\nAll India Radio, Kannur Station,\nKannur - 670 004.                                              ...Applicant\n\n(By Advocate Mr.C.S.G.Nair)\n\n                                   versus\n\n1.    Union of India represented by Secretary,\n      Ministry of Personnel, Public Grievances & Pensions,\n      Department of Personnel and Training,\n      North Block, New Delhi - 110 001.\n\n2.    Prasar Bharathi Broadcasting Corporation of India,\n      represented by Chief Executive Officer,\n      New Delhi - 110 001.\n\n3.    Director General, All India Radio,\n      Akashvani Bhavan, Sansad Marg,\n      New Delhi - 110 001.\n\n4.    Head of Office,\n      All India Radio,\n      Kannur - 670 004.                                      ...Respondents\n\n(By Advocate Mr.N.Anilkumar, SCGSC)\n\n      This application having been heard on 16 th September 2022, the\nTribunal on 23rd September 2022 delivered the following :\n                                      -2-\n\n                                   ORDERPer : HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER\n\n      The applicant at the time of filing the O.A was working as an Upper\n\nDivision Clerk (UDC) in the establishment of the 4 th respondent, All India\n\nRadio, Kannur.    It appears that on implementation of the Central Civil\n\nServices (Revised Pay) Rules, 2008 [CCS(RP) Rules, 2008] the applicant's\n\npay was revised on various occasions (the applicant submits that it was done\n\nas many as 7 times as per the orders at Annexure A-1 to Annexure A-4 and\n\nAnnexure A-6 to Annexure A-8) due to erroneous interpretations.          The\n\nrespondents also have accepted in their reply that there were a series of\n\nerrors in implementing the relevant part of the 6 th Pay Commission Report,\n\nwhich had led to the erroneous pay fixation in many offices. In any case, the\n\nrespondents submit that, ultimately, the correct interpretation of the said\n\nnotification was made and the erroneous pay fixation refixed, though some\n\nof their Regional Offices continued with the erroneous calculations. It is\n\nsubmitted by them that the beneficiaries of these erroneous fixations took\n\nbenefit of the same and have filed O.As before various Benches of this\n\nTribunal across the country. It is submitted by them that the present O.A is\n\nalso one such action by an applicant, who has been still drawing the benefit\n\nunder the erroneous calculation.2.    Whatever may be the reasons for this erroneous fixation etc., the\n\napplicant has filed this O.A aggrieved by the recovery notice served on him\n\nstating that an excess amount of Rs.415302/- had been paid to him on-3-account of the wrong fixation of pay with effect from 01.01.2006. The\n\nrespondents had issued a letter, produced at Annexure A-12 to him, in which\n\nit has been stated that an amount of Rs.415302/- was paid to him as excess\n\npay during the period from March, 2007 to 31.12.2015 and the same is due\n\nfor recovery. They also produced a due-drawn statement applicable to him\n\nin this respect for this period. This statement dated 01.02.2018 produced at\n\nAnnexure A-12 reveals that an excess amount of Rs.415302/- had been paid\n\nto the applicant. Subsequent to this, notice was issued to him directing him\n\nto remit the amount within 7 days vide Annexure A-13 dated 22.02.2018.\n\nAnother notice at Annexure A-18 dated 30.11.2018 directed him to remit the\n\namount, failing which, the amount would be recovered from his salary for\n\nthe month of December, 2018. At this stage the applicant filed this O.A.\n\nWhen this matter came up before the Bench on 21.12.2018, it was ordered\n\nthat there would be no recovery from the salary until the disposal of the O.A.\n\nThis position continued till the retirement of the applicant on 31.05.2020.\n\nOn 24.02.2021, it was submitted by counsel for the applicant that the\n\nrespondents were not releasing the pensionary benefits since the O.A had\n\nbeen filed by him. It was ordered by this Bench on that date that all due\n\npensionary benefits, after deducting the claim made by the respondents,\n\nshould be released to the applicant without delay.3.    In this matter the reasons for the erroneous fixation of pay in the case\n\nof the applicant as well as various interpretations by the respondent\n\nauthorities relating to the same are not being examined. The issue under-4-consideration here is, whether, in the given circumstances and conditions of\n\nthe case as well as the applicant's position, the respondents were correct in\n\nissuing the order of recovery on the applicant at this stage. The applicant\n\nsubmits that his case is fully covered by the Office Memorandum (OM)\n\nissued by the Department of Personnel & Training (DoP&T) dated\n\n02.03.2016 produced by him at Annexure A-16. This O.M was issued by the\n\nDoP&T following the judgment of the Hon'ble Supreme Court in the case ofState of Punjab & Ors. v. Rafiq Masih (White Washer) etc. in\n\nC.A.No.11527/2014 (arising out of SLP(C) No.11684/2012). His contention\n\nis that the Hon'ble Supreme Court had stipulated a few situations wherein\n\nrecoveries by the employers would be impermissible in law in paragraph 12\n\nof the aforesaid judgment. It is his submission that since the recovery has\n\narisen from mistakes made by his employer and since the said mistake\n\ncannot be ascribed to him or to any contentions made by him or due to any\n\nother cause, he is protected under the conditions mentioned at paragraphs 12(i) and 12 (iii) of the judgment. Paragraph 12 (i) prevents recovery being\n\nmade from employees belonging to Class III and Class IV service (or Group\n\n'C' and Group 'D' service). The applicant being a UDC is covered under this\n\ncriteria.   Similarly, under paragraph 12 (iii) he has also submitted that\n\nrecovery is impermissible from employees, where the excess payment had\n\nbeen made for a period in excess of five years before the order of recovery is\n\nissued. He submits that as stated by the respondents the recovery is being\n\nmade for the period from March 2007 onwards, whereas, the notice of\n\nrecovery was issued only in January, 2018. Hence, he submits that he is-5-protected from recovery under this condition. He further submits that since\n\nhe had retired from service on 31.05.2020 after the filing of the O.A. he is\n\nnow covered under paragraph 12 (ii) also where recovery is found to be\n\nimpermissible from retired employees or employees who are due to retire\n\nwithin one year of the order of recovery.4.In response to the above contentions, without going into details made\n\nin the reply statement of the respondents, relating to the reasons for the\n\nfixation and misinterpretation of the CCS (Revised) Pay Rules, 2008, it has\n\nonly been contended that the DoP&T O.M of 02.03.2016, following the\n\ndictum of theRafiq Masih(supra) judgment, vide paragraph 5 indicates that,\n\nwherever, the waiver of recovery in the above mentioned situations in\n\nparagraph 12 of the judgment is being considered, the same may be allowed\n\nwith the express approval of Department of Expenditure in terms of DoP&T\n\nO.M dated 06.02.2014. They submit that after the correct interpretation of\n\nthe 2008 Rules the recovery being made in the case of the applicant is fully\n\nin order.They submit that the O.M of the DoP&T dated 02.03.2016 thus\n\nentails detailed examination of case in terms of another DoP&T O.M also\n\ndated 06.02.2014, which was the official notification of the Chandi Prasad\n\nUniyal case. This refers to an earlier judgment of the Hon'ble Supreme\n\nCourt wherein it was laid down that any amount paid or received without\n\nauthority of law can always be recovered barring few exceptions of extreme\n\nhardships but not as a matter of right. It is also laid down in that judgment\n\nthat, in such situations, the law implies an obligation on the payee to repay-6-the money, otherwise it would amount to unjust enrichment. They also point\n\nto a series of orders of various Benches of this Tribunal in similar situations\n\nwhich allowed the revision of pay of the applicants therein, subsequently in\n\nterms of CCS (Revised) Pay Rules.They submit that the Hon'ble Supreme\n\nCourt judgment of 18.12.2014 inRafiq Masih(supra) cannot apply to\n\nsituations where the officials are clearly aware that any payment found to\n\nhave been made in excess would be required to be refunded. This had been\n\ncirculated vide their letter dated 16.05.2017 to all Zonal Stations.5.In this connection, they have brought to notice the orders of the CAT\n\nBangalore Bench in O.A.No.215/2017 where the prayer to stop refund of\n\nexcess pay from the retirement benefits were dismissed relying on the order\n\nof the Hon'ble Supreme Court in C.A.No.3500/2006 - High Court ofPunjab\n\n& Haryana & Ors. vs. Jagdev Singh.It has been ruled by the Hon'ble\n\nSupreme Court vide its judgment dated 29.07.2016 therein that the clause\n\nregarding waiver of recovery, as mentioned in theRafiq Masihcase, is not\n\napplicable if an officer to whom the payment was made in the first instance\n\nwas clearly placed on notice that any payment found to have been made in\n\nexcess would be required to be noticed. It is submitted that the officer had\n\nfurnished an undertaking while opting for the revised pay scale and thus he\n\nwas bound by that undertaking.It is also submitted that the applicant herein\n\ndoes not strictly fall under the categories that are identified by the Hon'ble\n\nSupreme Court in theRafiq Masih(supra) judgment. At the time of filing\n\nthe O.A the applicant was not retired and the recovery proceedings were-7-initiated two years prior to his retirement, which was later in 2020. Further,\n\nhe was also aware that there had been considerable issues regarding\n\ninterpretation of the 6thCPCrecommendations and objections at the Prasar\n\nBharati and at the Ministry level to the extent of it being a policy matter in\n\nthe pay fixation benefit enjoyed by him as well as a number of other\n\nsimilarly placed employees.6.    We will confine, as earlier indicated, our examination only to the issue\n\nwhether the said recovery is justified in the facts and circumstances of this\n\nspecific matter and in light of the judgments of the Hon'ble Supreme Court\n\nboth inRafiq Masih(supra) andJagdev Singh(supra).Learned counsel for\n\nthe applicant, Mr.C.S.G.Nair has, in addition, brought to notice another\n\njudgment of the Hon'ble Supreme Court in C.A.No.5527/2022 (along with\n\nother C.As) inM.P.Medical Officers Association v. The State of Madhya\n\nPradesh & Ors. TheHon'ble Supreme Court held that in case of mistake of\n\nthe Department or a State, the State was not justified in ordering recovery of\n\nthe excess amount paid along with the interest.In that judgment it was held\n\nthat while it is true that stricto sensu the decision of the Court in the case ofRafiq Masih(supra) may not be applicable, however, at the same time, in the\n\nfacts and circumstances of the case, the State was not justified in ordering\n\nrecovery of the excess amount paid with interest, especially when the\n\nmembers of the Officers' Association had retired on attaining the age of\n\nsuperannuation     and   the   recovery      was   being   made     from    their\n\npension/pensionary benefits.In addition, learned counsel has brought-8-to notice a judgment of the Hon'ble High Court of Judicature for Rajasthan\n\nat Jodhpur inMohammed Yusuf v. Mahranna Pratap University& anr. on\n\n24.11.2016 in Division Bench Civil Special Appeal (W) No.349/2004\n\nwhere, as far as the issue relating to undertaking given by the applicant was\n\nconcerned, it was held that the same cannot be equated with the undertaking\n\ngiven by the officer whose case was dealt with by the Hon'ble Supreme\n\nCourt inJagdev Singh(supra).InJagdev Singh(supra), the person\n\nconcerned was a Civil Judge (Junior Division) and, further, the undertaking\n\ngiven by him was in quite specific terms that any payment found to have\n\nbeen made in excess would be liable to be adjusted and that further fixation\n\nof the refund made was to be used for adjustment of excess payment, if any\n\ngiven. The Hon'ble High Court thus concluded that the undertaking said to\n\nbe given was in a proforma that simply mentions for refund of over\n\npayments, if any made, on account of incorrect fixation. It was held that the\n\nundertaking was a part of proforma and it is well known that the persons\n\nbelonging to lower posts put signatures on such undertaking without\n\napplication of mind.Hence, the Hon'ble High Court concluded that cases of\n\nthe present appellants were required to be dealt with in accordance with lawlaid down bythe Apex Court in the case ofRafiq Masih(supra).7.    However, learned Senior Central Government Standing Counsel,\n\nMr.N.Anilkumar has emphasised that the applicant in this O.A had been\n\nclearly placed on notice that any payment found to have been made in excess\n\nwould be required to be refunded. It is submitted that the applicant had-9-furnished an undertaking expressly consenting to refund the excess amount.\n\nThus, the decision of the Hon'ble Supreme Court inJagdev Singh(supra)\n\nwas squarely applicable in his case as it is submitted that the applicant is\n\nbound by the undertaking given by him relating to repayment of excess pay\n\ndrawn by him. However, while being pressed by this Tribunal to furnish a\n\ncopy of the said undertaking which had been submitted by the applicant no\n\nsuch copy pursuant to the implementation of the 6 thCPCrecommendations\n\ncould be produced. An undertaking that was shown to the Tribunal related\n\nto an agreement signed pursuant to the implementation of the 7 thCPCrecommendations, whereas this matter dealt with the outcome of the 6 thCPCrecommendations and thus the same was not taken on record as being\n\nirrelevant to the case.In any case, we are of the opinion that the said\n\nundertaking, even if it had been submitted, would have been in the nature of\n\na proforma undertaking, which, as has been held inMohammed Yusuf(supra), being a routine nature need not to be taken into consideration\n\nespecially if such undertaking is being signed by persons belonging to lower\n\nlevel posts.8.    Thus, in this matter we are being guided in finalizing our views first of\n\nall by the fact that the respondents have not been able to produce a specific\n\ncopy of the undertaking which they insist was signed by the applicant\n\npursuant to the implementation of the 6 thCPCrecommendations. Secondly,\n\neven considering that such an undertaking exists and perhaps cannot be\n\ntraced at this length of time, we are of the opinion that such an undertaking,-10-as held by various Courts, has to be viewed in the facts and circumstances of\n\nthe particular matter.    In this matter, what is very clear is that the\n\nrespondents had been showing indecisiveness by issuing various conflicting\n\ninterpretations and erroneous fixation of pay on the basis of the 6 thCPCrecommendations from time to time by, at times, giving certain benefits and\n\nlater withdrawing them. The respondents have not contested that, as many\n\nas seven circulars some of them contradictory, were issued by them pursuant\n\nto the implementation of the 7 thCPCrecommendations. None of these so\n\ncalled interpretations were caused to be issued due to any misinterpretation\n\nor misguidance committed by the applicant in the O.A but were due to their\n\nconfusion caused in the interpretation. Thus, the amount of money which\n\nthe applicant is supposed to have received in excess ie. Rs.415302/- has\n\nbeen given to him not due to any misrepresentation on his part but purely\n\ndue to mistakes committed by the respondents.9.    Accordingly, we find that this matter is squarely covered under the\n\nconditions stipulated in paragraphs 12 (i) and 12 (iii) of theRafiq Masih(supra) judgment. It is not fair at this length of time for the respondents to\n\nturn around and issue a notice of recovery after the amounts were given\n\nmore than ten years prior to the issue of the recovery notice.What is to be\n\nconsidered, as alsolaid down inthe judgment of the Hon'ble High Court of\n\nKerala in W.A.No.310/2022 dated 03.06.2022 inUniversity of Calicut &\n\nOrs. vs. Dr.C.Rajendran & Ors., (2022) ICO 705 is that this Tribunal should\n\nexamine, whether the circumstances in which the recovery of excess amount-11-paid by mistake is being done would result in the hardship of such nature\n\nwhich would far outweigh the equitable balance of the employers right to\n\nrecover.Such an interpretation is also found inRafiq Masih(supra). In\n\nother words, the Hon'ble High Court of Kerala held that interference would\n\nbe called for only in such cases where it would be iniquitous to recover the\n\npayment made. In paragraph 11 the Hon'ble High Court held as under :"11. The only circumstance in which the recovery of excess\n       amount paid by mistake is not recovered is when the recovery\n       would result in the hardship of such nature which would far\n       outweigh the equitable balance of the employers right to\n       recover. In other words interference would be called for only\n       in such cases were it would be iniquitous to recover the\n       payment made.In order to ascertain the parameters of the\n       above consideration and test to be applied, reference needs to\n       be made to a situations noticed in the judgment inState of\n       Punjab and Others v. Rafiq Masih White Washer[(2015) 4\n       SCC 334] . The exercise of jurisdiction underArticle 142of\n       the constitution of India for doing complete justice cannot be\n       treated as a precedent underArticle 141of the Constitution of\n       India. It is to be noticed that public money wrongly paid at the\n       instance of the official cannot be allowed to be retained\n       except in the circumstances noted above. In cases where the\n       employee had knowledge that the payment received was in\n       excess of what was due or wrongly paid, or where the error\n       was detected or corrected, within a short time of the wrong\n       payment, courts will not grant relief against recovery."10.   Flowing from the above, we hold that the recovery at this point of time\n\nfrom the pension of a retired UDC would be iniquitous and attracting the\n\ncircumstances which have beenlaid down inthe above judgment. We,\n\ntherefore, do not allow the said recovery to be made and accordingly direct\n\nthe respondents to refund the amount retained by them which they had\n\ndeducted from the pensionary benefits due to the applicant at the time of his-12-retirement. However, we are not directing any payment of interest etc. in\n\nthis matter as the retention was made with the direction of this Tribunal\n\nduring the course of hearing of the O.A on 09.04.2021. Further, it is also\n\nmade clear that all other pensionary benefits, if not already released, should\n\nbe released immediately to the applicant as due if there are no other issues to\n\nbe considered.11.   The O.A is disposed of with the above directions. There shall be no\n\norder as to costs.(Dated this the 23rd day of September 2022)\n\n\n\n\n     K.V.EAPEN                                       JUSTICE K.HARIPAL\nADMINISTRATIVE MEMBER                                JUDICIAL MEMBER\n\n\n\nasp-13-List of Annexures in O.A.No.180/01012/20181. Annexure A-1 - A copy of the Pay Fixation Statement dated\n26.09.2008 issued by the 4th respondent.2. Annexure A-2 -        A copy of the Pay Fixation Statement dated\n20.06.2010.3. Annexure A-3 - A copy of the Order No.KNR/-1(11)2013-S dated\n07.01.2013 issued by the 4th respondent.4. Annexure A-4 - A copy of the Statement showing fixation of pay\nissued on 25.07.2013 by the 4th respondent.5. Annexure A-5 - A copy of the Memo No.A-26022/02/2012-S.II dated\n19.09.2014 issued by the 3rd respondent enclosing a copy of the e-mail.6. Annexure A-6 - A copy of the Pay Fixation Statement\nNo.KNBR/10(2) 2015-S/2440 dated 27.07.2015 issued by the 4 th\nrespondent.7. Annexure A-7 - A copy of the Statement showing pay fixation on\n22.03.2016.8. Annexure A-8 - A copy of the Pay Fixation Statement issued on\n18.05.2016 by the 4th respondent.9. Annexure A-9 - A copy of the Memo No.26022/02/2012-S.II dated\n10.05.2016.10. Annexure A-10 - A copy of the Memo F.No.26022/02/2012-S.II\ndated 05.01.2016 along with Memo F.No.Misc.-1/330/2012-PPC dated\n31.12.2015 of the 2nd respondent.11. Annexure A-11          - A copy of            the   Communication\nF.No.Misc.1/330/2012-PPC(Pt.) dated 09.03.2016.12. Annexure A-12 - A copy of the Memo No.KNR/-7(2)2017-18/AC/66\ndated 05.01.2018 issued by the 4th respondent.13. Annexure A-13 - A copy of the Memo No.KNR-7(2)/2017-\n18/AC/319 dated 22.02.2018 issued by the 4th respondent.14. Annexure A-14 - A copy of the Memo No.KNR.21(2)2018-S/RC/316\ndated 22.02.2018 issued by the 4th respondent.15. Annexure A-15 - A copy of the representation dated 01.03.2018.-14-16. Annexure A-16 - A copy of the O.M.F.No.18/03/2015-Estt.(Pay-1)\ndated 02.03.2016.17. Annexure A-17 - A copy of the O.M.No.A-22015/16/2018-S.II dated\n22.11.2018.18. Annexure A-18 - A copy of the Memo No.KNR-7(2)/2018-\n19/AC/1078 dated 30.11.2018 issued by the 4th respondent.19. Annexure R-1 - A copy of the Notification No.470 issued by the\nGovernment, the revised Pay Rules (CCS (Revised Pay) Rules 2008)20. Annexure R-2 - A copy of the Circular No.A-26022/02/2012-S-II\ndated 03/04.10.2012 issued by the DG AIR New Delhi.21. Annexure R-3 - A copy of the Letter No.A-26015/3/2014-BAP dated\n20.08.2014 issued by the Ministry of I & B along with the I.D. Note of the\nDepartment of Expenditure vide dated 12.08.2014.22. Annexure R-4 - A copy of the DG:AIR Letter No.A-26022/02/2012-\nS-II dated 05.01.2016.23. Annexure R-5 - A copy of the representation submitted by the\napplicant for granting pay scale with Grade Pay Rs.4600/- in PB 2.24. Annexure R-6 - A copy of the option submitted by the applicant for\n6thCPCPay Scale.25. Annexure R-7 - A copy of the reply issued to the applicant with a\ncomparative statement of service particulars of both the applicant and\nShri.K.Balachandran dated 22.02.2018.26. Annexure R-8 - A copy of the representations received from the\napplicant.27. Annexure MA-1 - A copy of the interim order dated 21.12.2018.28. Annexure MA-1 - A copy of the PPO No.285542000718.29. Annexure MA-2 - A copy of the Order on 30.05.2020 issued by the\nPay & Accounts Officer (All India Radio) Chennai.30. Annexure MA-3 - A copy of the Sanction Order issued by the PAO\n(AIR) Chennai dated 04.06.2020.31. Annexure MA-4 - A copy of the Order No.KNR-13(2) 2020 dated\n22.07.2020 issued by the 4th respondent.-15-32. Annexure MA-5 - A copy of the Letter dated 25.08.2020 issued by\nthe 4th respondent.___________________________