Balbir Singh vs Delhi Transport Corporation

The applicant was serving the respondent-Delhi Transport Corporation (DTC) under Government of National Capital Territory of Delhi (GNCTD). He had retired on 31.08.2017 on attaining the age of superannuation. The Assured Career Progression (ACP) Scheme was adopted by the DTC in their Resolution No.70/2002 dated 12.08.2002. The ACP Scheme was made effective w.e.f. 12.08.2002 vide orders dated 23.08.2002. While in service, the applicant was granted 1st ACP benefit w.e.f. 01.01.2004 and 2nd ACP benefit w.e.f. 07.11.2004. Subsequently, the ACP Scheme was replaced with a new Scheme, viz. Modified Assured Career Progression (MACP) Scheme. The 3rd MACP benefit was granted w.e.f. 07.11.2010.

With this, the applicant‟s salary at the time of retirement worked out to Rs.50,500/- (revised as per 7th CPC). However, while reviewing the service record to work out retiral dues, at the time of retirement, the applicable date for 2nd ACP benefit was postponed from 07.11.2004 to 20.05.2005. With this postponement, the pay fixation was reworked and the salary at the time of retirement worked out to Rs.45,356/-(revised as per 7th CPC).

With such a reduction, it was calculated that an over-payment of Rs.1,55,906/- has taken place over the period 07.11.2004 till the time of retirement on 31.08.2017. Vide orders dated 30.08.2017, this amount was recovered from the payable amount of gratuity and the pension has also been fixed on the basis of last corrected salary being Rs.45,356/-(revised as per 7th CPC).

The applicant pleads that he has not made any misrepresentation at any point of time and for such reduction, he was not given any show cause notice also. Applicant is aggrieved at this recovery and reduction in salary which also adversely affects his pension. This is ventilated in instant OA.

The applicant has sought relief in the form of quashing of this letter dated 30.08.2017 along with restoration of his last salary to Rs.50,500/-(revised as per 7th CPC) and all consequential benefits in respect of retiral dues as well as pension. Interim relief was also sought.

The respondents opposed the OA. It was brought out that the ACP Scheme was to be implemented w.e.f. 12.08.2002. The Scheme provides for two financial upgradations to the staff, if they had been stagnating in their present scale for a period exceeding 12 years and 24 years. On this basis, the applicant was actually due 1st ACP from 12.08.2002. However, as per the eligibility requirement, the applicant did not satisfy the same as his ACR for the period 01.01.2000 to 31.12.2000 was graded as „average‟. This was communicated to the applicant on 19.02.2001 to enable him to submit his representation, if any.

However, since the „average‟ grading was upheld, it had a repercussion on grant of the 1st ACP which was accordingly granted on completion of the required 3 years period of delay. Therefore, 1st ACP was granted w.e.f. 01.01.2004.

This postponement of the 1st ACP on account of "average" ACP had its repercussion of at least one year time gap for the grant of 2nd ACP also. It was admitted that the 2nd ACP was wrongly given w.e.f. 07.11.2004, whereas in the circumstances explained herein, it was actually due from 20.05.2005.

At the time of retirement, when the entire service record was reviewed, this error had come to light and was rectified at that stage. This postponement of 2nd ACP had its cascading effect on the subsequent payments till retirement which also get revised. Since during this time certain over-payments amounting to Rs.1,55,906/-, had taken place, the same was recovered from the due amount of gratuity. Accordingly, the recoveries as well as retiral dues have been correctly worked out and enforced.

It was also brought out that the applicant had also given an undertaking dated 25.08.2017, to the effect that in case there are any over-payment of pay and allowances, PF, Pension, Gratuity, etc. as are detected by audit or any other authority or DTC, he shall refund the same in lump sum without any delay with interest as applicable from time to time. In view of this, the respondents pleaded that the recoveries and correction of pay is in order and the OA is required to be dismissed.

The applicant brought out that the issue of recoveries where undertaking was given, has recently been gone into by Hon‟ble High Court of M.P. at Jabalpur in two cases

(a) WA No.1232/2017, judgment dated 15.12.2017, and

(b) WP No.7746/2016, judgment dated 14.02.2018.

Both these cases are of employees who had given undertaking at the time of retirement as a routine. However, in both cases recoveries done were not upheld by Hon‟ble High Court.

The matter has been heard at length. Shri Yogesh Sharma, learned counsel represented the applicant and Shri Anmol Pandita, learned counsel represented the respondents.

The facts of this case are not in doubt. The applicant was granted 2nd ACP benefits w.e.f. 07.11.2004 and when the factum of "average" ACR got detected, it was corrected to 20.05.2005 in keeping with the below bench mark ACR grading for the period 1.1.2000 to 31.12.2000 and extent rules.

The applicant had given a clear undertaking at the time of his retirement, giving his consent for the recovery if any excess payment is noticed. The applicant had relied upon a judgment by the Hon‟ble Apex Court in State of Punjab and others etc. vs. Rafiq Masih (White Washer) and Ors., [(2015) 4 SCC 334], which prohibits recoveries older than five years and recoveries at the time of retirement and especially so from Group „C‟ and „D‟ employees. The respondents, however, drew attention to the judgment of Hon‟ble Apex Court in the case of High Court of Punjab & Haryana and others v. Jagdev Singh, [(2016) 14 SCC 267], wherein the recoveries were permitted if the employee was under notice and he has given such an undertaking.

The premise behind the judgment by the Hon‟ble Apex Court in Rafiq Masih (White Washer) (supra) has been that an employee who had been paid a higher amount over long periods is likely to face lot of financial stress if the same is recovered at a later stage. It was in keeping with this that recoveries were disallowed in certain circumstances.

In the instant case, excess payments have taken place over a period starting from 07.11.2004 till 31.08.2017, and it is for this excess that an amount was worked out as Rs.1,55,906/- which the respondents have recovered from the payable gratuity. This excess payment thus had taken place over a long period of about 13 years and its recovery as lump sum at the time of retirement, from the retiral dues is not in order as the reasoning and decision by Apex Court propounded in Rafiq Masih (White Washer) (supra) is attracted. This recovery is, therefore, quashed.

This amount of Rs.1,55,906/- shall be refunded to the applicant within eight weeks of receipt of certified copy of this order. There shall not be any interest if refunded within this period, else it will carry interest at GPF rate w.e.f. 31.08.2017 till it is paid.

Another question for decision is as to what will be the basis on which to fix the retiral dues, i.e. pension and gratuity. The service record of an employee is reviewed at the time of retirement to finalise retiral dues and if any inadvertent error has occurred earlier, it gets rectified.

In the instant case, it is admitted that the 2nd ACP was inadvertently granted w.e.f. 07.11.2004, whereas it was actually due from 25.02.2005 in view of the adverse ACR for the calendar year 2000. This error came to be detected at the time of applicant‟s superannuation. The correction for the same is, therefore, in order and is upheld.

Therefore, working out of the retiral dues, i.e. pension, gratuity etc. on the basis of last salary as Rs.45,356/- (revised as per 7th CPC), is taken to be in order and is upheld. The pension and gratuity etc. shall have to be worked out on this basis and all retiral dues released if not released so far.

The OA is disposed of with these directions. There shall be no order as to costs.