C.Raveendran vs Union Of India & Ors

K.V. Eapen, Member A

The applicant at the time of filing the O.A was working as an Upper Division Clerk (UDC) in the establishment of the 4th respondent, All India Radio, Kannur. It appears that on implementation of the Central Civil Services (Revised Pay) Rules, 2008 [CCS(RP) Rules, 2008] the applicant's pay was revised on various occasions (the applicant submits that it was done as many as 7 times as per the orders at Annexure A-1 to Annexure A-4 and Annexure A-6 to Annexure A-8) due to erroneous interpretations. The respondents also have accepted in their reply that there were a series of errors in implementing the relevant part of the 6th Pay Commission Report, which had led to the erroneous pay fixation in many offices. In any case, the respondents submit that, ultimately, the correct interpretation of the said notification was made and the erroneous pay fixation refixed, though some of their Regional Offices continued with the erroneous calculations. It is submitted by them that the beneficiaries of these erroneous fixations took benefit of the same and have filed O.As before various Benches of this Tribunal across the country. It is submitted by them that the present O.A is also one such action by an applicant, who has been still drawing the benefit under the erroneous calculation.

Whatever may be the reasons for this erroneous fixation etc., the applicant has filed this O.A aggrieved by the recovery notice served on him stating that an excess amount of Rs.415302/- had been paid to him on account of the wrong fixation of pay with effect from 01.01.2006. The respondents had issued a letter, produced at Annexure A-12 to him, in which it has been stated that an amount of Rs.415302/- was paid to him as excess pay during the period from March, 2007 to 31.12.2015 and the same is due for recovery. They also produced a due-drawn statement applicable to him in this respect for this period. This statement dated 01.02.2018 produced at Annexure A-12 reveals that an excess amount of Rs.415302/- had been paid to the applicant. Subsequent to this, notice was issued to him directing him to remit the amount within 7 days vide Annexure A-13 dated 22.02.2018. Another notice at Annexure A-18 dated 30.11.2018 directed him to remit the amount, failing which, the amount would be recovered from his salary for the month of December, 2018. At this stage the applicant filed this O.A. When this matter came up before the Bench on 21.12.2018, it was ordered that there would be no recovery from the salary until the disposal of the O.A. This position continued till the retirement of the applicant on 31.05.2020. On 24.02.2021, it was submitted by counsel for the applicant that the respondents were not releasing the pensionary benefits since the O.A had been filed by him. It was ordered by this Bench on that date that all due pensionary benefits, after deducting the claim made by the respondents, should be released to the applicant without delay.

In this matter the reasons for the erroneous fixation of pay in the case of the applicant as well as various interpretations by the respondent authorities relating to the same are not being examined. The issue under consideration here is, whether, in the given circumstances and conditions of the case as well as the applicant's position, the respondents were correct in issuing the order of recovery on the applicant at this stage. The applicant submits that his case is fully covered by the Office Memorandum (OM) issued by the Department of Personnel & Training (DoP&T) dated 02.03.2016 produced by him at Annexure A-16. This O.M was issued by the DoP&T following the judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) etc. in C.A.No.11527/2014 (arising out of SLP(C) No.11684/2012). His contention is that the Hon'ble Supreme Court had stipulated a few situations wherein recoveries by the employers would be impermissible in law in paragraph 12 of the aforesaid judgment. It is his submission that since the recovery has arisen from mistakes made by his employer and since the said mistake cannot be ascribed to him or to any contentions made by him or due to any other cause, he is protected under the conditions mentioned at paragraphs 12 (i) and 12 (iii) of the judgment. Paragraph 12 (i) prevents recovery being made from employees belonging to Class III and Class IV service (or Group 'C' and Group 'D' service). The applicant being a UDC is covered under this criteria. Similarly, under paragraph 12 (iii) he has also submitted that recovery is impermissible from employees, where the excess payment had been made for a period in excess of five years before the order of recovery is issued. He submits that as stated by the respondents the recovery is being made for the period from March 2007 onwards, whereas, the notice of recovery was issued only in January, 2018. Hence, he submits that he is protected from recovery under this condition. He further submits that since he had retired from service on 31.05.2020 after the filing of the O.A. he is now covered under paragraph 12 (ii) also where recovery is found to be impermissible from retired employees or employees who are due to retire within one year of the order of recovery.

In response to the above contentions, without going into details made in the reply statement of the respondents, relating to the reasons for the fixation and misinterpretation of the CCS (Revised) Pay Rules, 2008, it has only been contended that the DoP&T O.M of 02.03.2016, following the dictum of the Rafiq Masih (supra) judgment, vide paragraph 5 indicates that, wherever, the waiver of recovery in the above mentioned situations in paragraph 12 of the judgment is being considered, the same may be allowed with the express approval of Department of Expenditure in terms of DoP&T O.M dated 06.02.2014. They submit that after the correct interpretation of the 2008 Rules the recovery being made in the case of the applicant is fully in order. They submit that the O.M of the DoP&T dated 02.03.2016 thus entails detailed examination of case in terms of another DoP&T O.M also dated 06.02.2014, which was the official notification of the Chandi Prasad Uniyal case. This refers to an earlier judgment of the Hon'ble Supreme Court wherein it was laid down that any amount paid or received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. It is also laid down in that judgment that, in such situations, the law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. They also point to a series of orders of various Benches of this Tribunal in similar situations which allowed the revision of pay of the applicants therein, subsequently in terms of CCS (Revised) Pay Rules. They submit that the Hon'ble Supreme Court judgment of 18.12.2014 in Rafiq Masih (supra) cannot apply to situations where the officials are clearly aware that any payment found to have been made in excess would be required to be refunded. This had been circulated vide their letter dated 16.05.2017 to all Zonal Stations.

In this connection, they have brought to notice the orders of the CAT Bangalore Bench in O.A.No.215/2017 where the prayer to stop refund of excess pay from the retirement benefits were dismissed relying on the order of the Hon'ble Supreme Court in C.A.No.3500/2006 – High Court of Punjab & Haryana & Ors. vs. Jagdev Singh. It has been ruled by the Hon'ble Supreme Court vide its judgment dated 29.07.2016 therein that the clause regarding waiver of recovery, as mentioned in the Rafiq Masih case, is not applicable if an officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be noticed. It is submitted that the officer had furnished an undertaking while opting for the revised pay scale and thus he was bound by that undertaking. It is also submitted that the applicant herein does not strictly fall under the categories that are identified by the Hon'ble Supreme Court in the Rafiq Masih (supra) judgment. At the time of filing the O.A the applicant was not retired and the recovery proceedings were initiated two years prior to his retirement, which was later in 2020. Further, he was also aware that there had been considerable issues regarding interpretation of the 6th CPC recommendations and objections at the Prasar Bharati and at the Ministry level to the extent of it being a policy matter in the pay fixation benefit enjoyed by him as well as a number of other similarly placed employees.

We will confine, as earlier indicated, our examination only to the issue whether the said recovery is justified in the facts and circumstances of this specific matter and in light of the judgments of the Hon'ble Supreme Court both in Rafiq Masih (supra) and Jagdev Singh (supra). Learned counsel for the applicant, Mr.C.S.G.Nair has, in addition, brought to notice another judgment of the Hon'ble Supreme Court in C.A.No.5527/2022 (along with other C.As) in M.P.Medical Officers Association v. The State of Madhya Pradesh & Ors. The Hon'ble Supreme Court held that in case of mistake of the Department or a State, the State was not justified in ordering recovery of the excess amount paid along with the interest. In that judgment it was held that while it is true that stricto sensu the decision of the Court in the case of Rafiq Masih (supra) may not be applicable, however, at the same time, in the facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount paid with interest, especially when the members of the Officers' Association had retired on attaining the age of superannuation and the recovery was being made from their pension/pensionary benefits. In addition, learned counsel has brought to notice a judgment of the Hon'ble High Court of Judicature for Rajasthan at Jodhpur in Mohammed Yusuf v. Mahranna Pratap University & anr. on 24.11.2016 in Division Bench Civil Special Appeal (W) No.349/2004 where, as far as the issue relating to undertaking given by the applicant was concerned, it was held that the same cannot be equated with the undertaking given by the officer whose case was dealt with by the Hon'ble Supreme Court in Jagdev Singh (supra). In Jagdev Singh (supra), the person concerned was a Civil Judge (Junior Division) and, further, the undertaking given by him was in quite specific terms that any payment found to have been made in excess would be liable to be adjusted and that further fixation of the refund made was to be used for adjustment of excess payment, if any given. The Hon'ble High Court thus concluded that the undertaking said to be given was in a proforma that simply mentions for refund of over payments, if any made, on account of incorrect fixation. It was held that the undertaking was a part of proforma and it is well known that the persons belonging to lower posts put signatures on such undertaking without application of mind. Hence, the Hon'ble High Court concluded that cases of the present appellants were required to be dealt with in accordance with law laid down by the Apex Court in the case of Rafiq Masih (supra).

However, learned Senior Central Government Standing Counsel, Mr.N.Anilkumar has emphasised that the applicant in this O.A had been clearly placed on notice that any payment found to have been made in excess would be required to be refunded. It is submitted that the applicant had furnished an undertaking expressly consenting to refund the excess amount. Thus, the decision of the Hon'ble Supreme Court in Jagdev Singh (supra) was squarely applicable in his case as it is submitted that the applicant is bound by the undertaking given by him relating to repayment of excess pay drawn by him. However, while being pressed by this Tribunal to furnish a copy of the said undertaking which had been submitted by the applicant no such copy pursuant to the implementation of the 6th CPC recommendations could be produced. An undertaking that was shown to the Tribunal related to an agreement signed pursuant to the implementation of the 7th CPC recommendations, whereas this matter dealt with the outcome of the 6th CPC recommendations and thus the same was not taken on record as being irrelevant to the case. In any case, we are of the opinion that the said undertaking, even if it had been submitted, would have been in the nature of a proforma undertaking, which, as has been held in Mohammed Yusuf (supra), being a routine nature need not to be taken into consideration especially if such undertaking is being signed by persons belonging to lower level posts.

Thus, in this matter we are being guided in finalizing our views first of all by the fact that the respondents have not been able to produce a specific copy of the undertaking which they insist was signed by the applicant pursuant to the implementation of the 6th CPC recommendations. Secondly, even considering that such an undertaking exists and perhaps cannot be traced at this length of time, we are of the opinion that such an undertaking, as held by various Courts, has to be viewed in the facts and circumstances of the particular matter. In this matter, what is very clear is that the respondents had been showing indecisiveness by issuing various conflicting interpretations and erroneous fixation of pay on the basis of the 6th CPC recommendations from time to time by, at times, giving certain benefits and later withdrawing them. The respondents have not contested that, as many as seven circulars some of them contradictory, were issued by them pursuant to the implementation of the 7th CPC recommendations. None of these so called interpretations were caused to be issued due to any misinterpretation or misguidance committed by the applicant in the O.A but were due to their confusion caused in the interpretation. Thus, the amount of money which the applicant is supposed to have received in excess ie. Rs.415302/- has been given to him not due to any misrepresentation on his part but purely due to mistakes committed by the respondents.

Accordingly, we find that this matter is squarely covered under the conditions stipulated in paragraphs 12 (i) and 12 (iii) of the Rafiq Masih (supra) judgment. It is not fair at this length of time for the respondents to turn around and issue a notice of recovery after the amounts were given more than ten years prior to the issue of the recovery notice. What is to be considered, as also laid down in the judgment of the Hon'ble High Court of Kerala in W.A.No.310/2022 dated 03.06.2022 in University of Calicut & Ors. vs. Dr.C.Rajendran & Ors., (2022) ICO 705 is that this Tribunal should examine, whether the circumstances in which the recovery of excess amount paid by mistake is being done would result in the hardship of such nature which would far outweigh the equitable balance of the employers right to recover. Such an interpretation is also found in Rafiq Masih (supra). In other words, the Hon'ble High Court of Kerala held that interference would be called for only in such cases where it would be iniquitous to recover the payment made. In paragraph 11 the Hon'ble High Court held as under :

“11. The only circumstance in which the recovery of excess amount paid by mistake is not recovered is when the recovery would result in the hardship of such nature which would far outweigh the equitable balance of the employers right to recover. In other words interference would be called for only in such cases were it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration and test to be applied, reference needs to be made to a situations noticed in the judgment in State of Punjab and Others v. Rafiq Masih White Washer [(2015) 4 SCC 334] . The exercise of jurisdiction under Article 142 of the constitution of India for doing complete justice cannot be treated as a precedent under Article 141 of the Constitution of India. It is to be noticed that public money wrongly paid at the instance of the official cannot be allowed to be retained except in the circumstances noted above. In cases where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error was detected or corrected, within a short time of the wrong payment, courts will not grant relief against recovery.”

Flowing from the above, we hold that the recovery at this point of time from the pension of a retired UDC would be iniquitous and attracting the circumstances which have been laid down in the above judgment. We, therefore, do not allow the said recovery to be made and accordingly direct the respondents to refund the amount retained by them which they had deducted from the pensionary benefits due to the applicant at the time of his retirement. However, we are not directing any payment of interest etc. in this matter as the retention was made with the direction of this Tribunal during the course of hearing of the O.A on 09.04.2021. Further, it is also made clear that all other pensionary benefits, if not already released, should be released immediately to the applicant as due if there are no other issues to be considered.

The O.A is disposed of with the above directions. There shall be no order as to costs.

(Dated this the 23rd day of September 2022)