Central Administrative Tribunal - DelhiJokhoo Ram vs Mahanagar Telephone Nigam Limited on 18 November, 20221\nItem No. 24                                  O.A. No. 4695/2018\n\n\n\n                Central Administrative Tribunal\n                  Principal Bench: New Delhi\n\n                      O.A. No. 4695/2018\n\n               This the 18th day of November, 2022\n\n              Hon'ble Mr. Manish Garg, Member (J)\n\n    Shri Jokhoo Ram, Dy. GM. (T&D), Group 'A',\n    (Aged about 59 years & 7 months)\n    S/o Shri Bujhawan Ram\n    Resident of Flat No. 312, DDA Flats\n    Mansarovar Park, Shahdra\n    New Delhi - 110 032\n\n                                               ...Applicant\n [By Advocate(s): Mr. A. K. Kaushik]\n                          Versus\n     1. Mahanagar Telephone Nigam Limited\n        Through its Chairman & Managing Director\n        MTNL Corporate Office\n        Mahanagar Door Sanchar Sadan\n        9, C.G.O. Complex, Lodhi Road\n        New Delhi - 110 003\n\n     2. The Executive Director\n        Mahanagar Telephone Nigam Limited\n        K. L. Bhawan, Janpath\n        New Delhi - 110 001\n\n     3. The General Manager (Finance)\n        Mahanagar Telephone Nigam Limited\n        MTNL Corporate Office\n        Mahanagar Door Sanchar Sadan\n        9, C.G.O. Complex, Lodhi Road\n        New Delhi - 110 003\n\n     4. The Accounts Officer (P&A) CO\n        Mahanagar Telephone Nigam Limited\n        Corporate Office\n        Mahanagar Door Sanchar Sadan\n        9, C.G.O. Complex, Lodhi Road\n        New Delhi - 110 003\n                                             ...Respondents\n\n [By Advocate(s): Mr. Saiful Islam]\n                                 2\nItem No. 24                                      O.A. No. 4695/2018\n\n\n\n                          ORDER (ORAL)This Original Application has been filed by the\n\napplicant underSection 19of Administrative Tribunals Act,\n\n1985, seeking the following relief(s):"1. To set aside notice issued vide letter No.\n         MTNL/CO/P&A/Misc/2018-19 dated at New\n         Delhhi the 24-09-2018 (Annexure 'A-1) and to\n         direct the Respondents Not to recover Rs.\n         6,67,495/- (Rs six lakh sixty seven thousand\n         four hundred and ninety five only) from the\n         applicant's monthly salary for the month of\n         October, 2018 till April, 2019 i.e. the month of\n         retirement of the applicant on superannuation\n         on 30.4.2019 and from the retirement benefits\n         on superannuation of the applicant on\n         30.4.2019 to be paid by the respondent to the\n         applicant.2.   To direct the Respondents to immediately\n          refund Rs 98,000/- (Rs. Ninety Eight thousand\n          only) to the applicant recovered by the\n          respondents from the salary of the applicant\n          for the month of October, 2018 and November,\n          2018.3.   To direct the Respondents to pay Rs 50,000/-to the Applicant as the cost of this litigation.4.   To pass such further order(s) and/or give\n          direction(s) as deemed fit and proper in the\n          facts and circumstances of the case."2.        Brief facts of the case are that the applicant was\n\nappointed as the Junior Engineer, Telecom on 03.01.1986.\n\nThereafter, on 30.09.1998, he was promoted on officiating\n\nbasis as Division Engineer, Telecom (I.T.S. Group A). Vide\n\norder dated 20.12.2000, he was promoted to the post of\n\nDivision Engineer on ad-hoc basis and was posted as\n\nDivision Engineer Telecom. On 17.12.2008, he was3Item No. 24                                    O.A. No. 4695/2018promoted to the grade/scale of E-6. He was promoted to the\n\ngrade/ scale of E-7 and the same was made effective by the\n\nrespondents w.e.f. 10.01.2011. He was further promoted to\n\nthe post of Deputy General Manager, Telecom on ad-hoc\n\nbasis on 13.08.2013. On 29.05.2014, he was promoted to the\n\npost of Deputy Manager Telecom. The respondents issued a\n\nletter dated 24.09.2015 regarding recovery of over payment,\n\nthe same reads as under:-"To\n\n         Sh. Jokhoo Ram\n         DGM (Tech & Plg.)\n         MTNL, CO\n         New Delhi.Subject: Over payment regarding.After scrutiny of your service book it has been\n   noticed that overpayment of Rs. 667495/- in words\n   (Rs. Six Lacs Sixty Seven Thousand Four Hundred\n   Ninety five only) has been made to you due to\n   wrong fixation of pay. You are humbly requested to\n   deposit the above said amount of excess payment\n   within 15 days inn lump sum, failing which the\n   recovery of above said amount will be initiated\n   from the salary of next month as per appropriate\n   rules. Calculation sheet is hereby enclosed for ready\n   reference please.For any query kindly contact the u/s on the\n   below mentioned telephone No.\n\n                                                  Sd/-Accounts Officer (P&A) CO\n                                     Tele No 2432280"In reply to the aforesaid letter, the applicant made\n\nrepresentations dated 27.09.2018 & 14.11.2018 before the4Item No. 24                                      O.A. No. 4695/2018respondents. However, the respondents started recovery of\n\nRs. 49,000/- per month from the salary of the applicant. It\n\nis submitted by learned counsel for the applicant that the\n\nrecovered amount of Rs. 98000/- may also be refunded.\n\nHence, this OA.3.      Attention has been drawn to the order dated\n\n15.02.2019 passed by this Tribunal, the relevant paragraph\n\nof the same reads as under:-"Respondents are directed not to effect any further\n     recoveries starting from the salary of March 2019\n     onwards, till a decision in the instant OA is passed.\n     This, however, does not preclude the respondents\n     from paying correct salary now onwards, as per\n     their assessment. MA No. 433/2019 is disposed of\n     with these directions."4.      It is also submitted by learned counsel for the\n\napplicant that after filing of the present OA the applicant\n\nretired on 30.09.2019. The sum and substance of the case of\n\nthe applicant is that no show cause notice was issued by the\n\ndepartment and recovery to be effected pertaining to the\n\nperiod for wrong fixation of pay w.e.f. 01.10.2000. He\n\nsubmits that the applicant is covered by the decision\n\nrendered by Hon'ble Supreme Court in Civil Appeal No.\n\n11527/2014 arising out of SLP (C) No. 11684/2012\n\ntitled        State of Punjab and others etc. Vs. Rafiq\n\nMasih (White Washer) etc. Learned counsel for the5Item No. 24                                    O.A. No. 4695/2018applicant places emphasis on point Nos. (2) & (3) in\n\nparagraph 12 of the same, which reads as under:-"12. It is not possible to postulate all situations of\n   hardship, which would govern employees on the\n   issue of recovery, where payments have mistakenly\n   been made by the employer, in excess of their\n   entitlement. Be that as it may, based on the\n   decisions referred to herein above, we may, as a\n   ready reference, summarise the following few\n   situations, wherein recoveries by the employers,\n   would be impermissible in law:(i) Recovery from employees belonging to Class -III and Class-IV service (or Group 'C' and\n        Group 'D' service)(ii) Recovery from the retired employees, or\n        employees who are due to retire within\n        one year of the order of recovery(iii)Recovery from employees, when the\n        excess payment has been made for a\n        period in excess of five years, before the\n        order of recovery is issued.(iv) Recovery in cases where an employee has\n        wrongfully been required to discharge duties\n        of a higher post, and has been paid\n        accordingly, even though he should have\n        rightfully been required to work against an\n        inferior post.(v) In any other case, where the Court arrives at\n        the conclusion, that recovery if may from the\n        employee, would be iniquitous or harsh or\n        arbitrary to such an extent, as would far\n        outweigh the equitable balance of the\n        employer's right to recover."He further relies upon the DoPT's OM dated\n\n02.03.2016, the relevant paragraph of the same reads as\n\nunder:-"5. The matter has, consequently, been examined in\n   consultation with the Department of Expenditure\n   and the Department of Legal Affairs. The\n   Ministries/ Departments are advised to deal with\n   the issue of wrongful/ excess payments made to6Item No. 24                                        O.A. No. 4695/2018Government servants in accordance with above\n     decision of the Hon'ble Supreme Court in CA No.\n     11527 of 2014 (arising out of SLP (C) No. 11684 of\n     2012) in State of Punjab and others etc vs Rafiq\n     Masih (White Washer) etc. However, wherever the\n     waiver of recovery in the above-mentioned\n     situations is considered, the same may be allowed\n     with the express approval of Department of\n     Expenditure in terms of this Department's OM No.\n     18/26/2011-Estt (Pay-I) dated 6th February, 2014."5.      Learned counsel for the applicant submits that the\n\naction of the respondent of the recovery of Rs. 6,67,495/-\n\nfrom the salary of the applicant is illegal, unlawful, uncalled\n\nfor arbitrary and against the spirit of DoPT order as well as\n\nthe judgment passed by the Hon'ble Supreme Court.6.      On      the   other   hand,   learned   counsel    for    the\n\nrespondents contends that matter is squarely covered by the\n\nfollowing decisions rendered by the Hon'ble Supreme\n\nCourt:-(i)           Civil Appeal No. 9873/2013 titledU.T.\n\n              Chandigarh & Ors Vs Gurcharan Singh &\n\n              Anr.(ii)          Chandi Prasad Uniyal and Ors vs State of\n\n              Uttarakhnd and Ors, 2012 SCW 4742,\n\n              (2012) 8 SCC 417.7.      Further distinction has been drawn to the judgment\n\npassed by this Tribunal in OA No. 792/2016 titled7Item No. 24                                      O.A. No. 4695/2018Navneet Rai Rishi Vs UoI & Others, wherein it has\n\nheld that:"5. The judgment of the Hon'ble Supreme Court inState of Punjab and Ors. Vs. Rafiq Masih\n     (Whitewasher) and Ors.[(2015) 4 SCC 334] , which,\n     for equity, prohibits, in certain situations, recovery\n     from employees, where payments have mistakenly\n     been made by employer, in excess of their\n     entitlement, is inapplicable to the present case.Further, in High Court ofPunjab and Haryana and\n     Ors. Vs. Jagdev Singh[(2016) 14 SCC 267], the\n     Hon'ble Supreme Court held that the principle of\n     non-recovery from retired employees would not\n     apply in the case of an employee put on notice at\n     the time of payment that any excess payment would\n     be required to be refunded.6. In the light of the above, I am of the view that\n     the OA is devoid of merits. The same is, therefore,\n     dismissed. No order as to cost."8.      Learned counsel for the respondents further contends\n\nthat no reply has been given to the impugned Notice No.\n\nMTNL/CO/P&A/misc/2018-19 dated 24.09.2018. However,\n\nthe said fact has been contradicted and learned counsel for\n\nthe applicant states that in reply to the aforesaid notice,\n\nrepresentations dared 27.09.2018 & 14.11.2018 were also\n\npreferred. Further, the said representations were rejected\n\nvide letter dated 27.11.2018.9.      In the present facts and circumstances, the applicant\n\nwas promoted at various levels from 01.10.2000 till\n\n24.05.2014, no steps were initiated for wrong fixation rather\n\nthe department fixed the pay scale as per the norms and the\n\npay scale was accordingly granted to the applicant from time8Item No. 24                                    O.A. No. 4695/2018to time.In light of the recent judgments passed by the\n\nHon'ble Supreme Court in Civil Appeal No. 5527 of 2022\n\ntitledM.P. Medical Officers Association Vs. The State of\n\nMadhya Pradesh& ors. with other cases, wherein it has held\n\nthat;-"5. It is not in dispute that the members of the\n   appellant association, who were serving as\n   Specialists, Dental Specialists and officers in the\n   specialist's cadre got the benefits under the circular\n   dated 23.05.2009. It was the Department/State,\n   who issued the circular dated 23.05.2009 and paid\n   the benefits under the circular dated 23.05.2009 to\n   the members of the appellant association, which\n   subsequently came to be withdrawn by the State in\n   the year 2012. Therefore, as such, there was\n   neither any misrepresentation on the part of the\n   concerned employees - members of the appellant\n   association nor can the mistake be attributed to\n   them. The mistake, if any, can be said to be that of\n   the Department/State, who issued the circular\n   dated 3.05.2009 under which the members of the\n   association were given certain benefits till the\n   same was withdrawn in the year 2012. Therefore,\n   in the peculiar facts and circumstances of the case,\n   the State was not justified in ordering recovery of\n   the excess amount paid along with the interest. It is\n   true that stricto sensu, the decision of this Court in\n   the case ofState of Punjab and others Vs.\n   Rafiq Masih, (2015) 4 SCC 334 may not be\n   applicable. However, at the same time, as observed\n   hereinabove, and in the facts and circumstances of\n   the case, the State was not justified in ordering\n   recovery of the excess amount paid with interest,\n   more particularly, when it is reported that some of\n   the doctors/dentists - members of the association\n   have retired on attaining the age of\n   superannuation and the recovery shall be from\n   their pension/pensionary benefits. However, at the\n   same time, their pay fixation and the pension shall\n   have to be as per the order dated 26.08.2008.6. In view of the above and for the reasons stated\n   above, all these Appeals Succeed in part. The9Item No. 24                                     O.A. No. 4695/2018impugned judgment and order passed by the\n   Division Bench of the High Court upholding the\n   recovery of the excess amount paid alongwith\n   interest is hereby quashed and set aside.In result, there shall not be any recovery of\n   the excess amount paid pursuant to the circular\n   dated 23.05.2009 till the same was withdrawn on\n   30.05.2012. However, for all other purposes\n   including the pay fixation and pension etc., the\n   same shall be now worked out as per the order\n   dated 26.08.2008, as if, the circular dated\n   23.05.2009 was never issued.Present appeals are accordingly partly allowed\n   to the aforesaid extent. However, in the facts and\n   circumstances of the case, there shall be no order as\n   to costs."no divergent view can be taken by this Tribunal.10.     Therefore, the OA is allowed to the extent that no\n\nfurther recovery shall be made and impugned order dated\n\n24.09.2018 is hereby quashed set aside.There shall be no order as to costs.(Manish Garg)\n                                                 Member (J)\n/sm/