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Judgment
Om Prakash VII, Member (J)
Since the cause of action and relief sought by all the applicants in the aforesaid O.As are common, hence with the consent of learned counsel for parties, all the O.As have been heard together and decided by a common judgment.
The relief claimed in the leading Original application No. 187 of 2018 has been filed seeking following relief:
“1.The Hon’ble Tribunal may graciously be pleased to quash the impugned orders dated 15.1.2018 and 15.2.2018 with direction to the respondents to refund the deducted amount from the T.R.C.A. of the applicants and restore the pay scales which were granted to the applicants after assessment of work-loan.
2.The Hon’ble Tribunal may graciously be pleased to direct the respondents to re-assess the work-load of the B.P.Ms. of the different Branch Post Offices of the respondent no. 5 as per observation of the respondents themselves in the impugned order dated 15.02.2018.
3.To issue any order, direction of further orders which this Hon’ble Court may deem fit and proper in the present facts and circumstances of this case.
4.Award costs in favour of Applicants.”
Brief facts of the leading case are that the applicants were engaged as Extra Departmental Agents at different Branch post Offices and they have been working with devotion to their duties with proper care and caution. The Time Related Continuity Allowances (TCRA) have been revised on the basis of recommendations of the committee formed for this purpose and on the basis of Natrajan Committee for GDS workers, rates of TRCA had been revised since 2011. The applicants were granted enhanced TCRA as per the recommendations of the committee and as per the report of concerned divisional authority, till December, 2016. All of sudden, the respondents have reduced the pay scale of the applicants without giving any opportunity of hearing to the applicants. Applicants have filed representation to the respondents with regard to reduction of pay scale as well as recovery thereof, from the TCRA. In response to the representation of the applicants, respondents have informed that on the basis of noting at paragraph 32 made by the Audit Team, revised work load of the applicants since 2010-11 has been rejected, hence due to such rejection of recommended work load, rate of TRCA since 1.1.2006 to 31.12.2016 has been recalculated and thus overpaid amount has been started to deduct from the TRCA of the applicant. Respondents have passed the impugned order dated 15.1.2018 and 15.2.2018 in this regard, which is challenged by the applicants in these O.A.s. Similar facts have been mentioned in all the aforesaid OAs.
Per contra, learned counsel for the respondents have filed counter Affidavit, in which it is stated that the TRCA of the applicants were fixed as per recommendations of the Natarajan Murti Committee. When the workload calculated for the year 2005, the excess payment were made to them, was found highly objectionable by the Audit Team on 9.11.2016 to 11.11.2016. The fixation of TRCA was reviewed and excess paid TRCA to GDSMBP was calculated and excess payment given to them was ordered to be recovered from December, 2017 @2000/- per month. Similar facts have been mentioned in all the Counter Affidavits.
Heard the learned counsel for the parties.
Learned counsel for the applicants argued that TRCA have been revised since 2011 on the basis of recommendations of the committee formed for this purpose and applicants were getting TRCA on enhanced rate as per the recommendations of the committee but respondents all of sudden have reduced the pay scale of the applicants without giving any show cause notice before reduction of pay and started recovery @ 2000/-per month w.e.f. December, 2017. The Audit report shows that TRCA were revised on the work load of 2005 on the basis of recommendation of the committee. This report shows that there has been no misrepresentation of the applicants. It is further argued that applicants have no role , hence if there was any over-payment, no recovery should be made from the TRCA from the applicants. Learned counsel for the applicants have placed reliance upon the following case laws:-
i) Mohammed Yosuf Vs. Maharana Pratap Agriculture & Technology University, Udaipr through its Registrar (D.B. Civil Special Appeal (W) No. 349/2004 decided on24.11.2016 by Hon’ble High court of Judicature for Rajashthan at Jodhpur.
ii) State of Punjab Vs. Rafiq Mashi reported in Laws (SC) 2014 12 59.
iii) Prakash Chandra Bothra vs. UOI reported in LAWS (Raj) 2017 4 57
iv. Ms. Mridula Saxena Vs. State of M.P. decided in W.P. No. 7497 /2012 on 11th May, 2017 by Hon’ble Madhya Pradesh High Court.
v. K.L. Makashre Vs. Sanchalnalaya Udhyaniki Evan reported in LAWS (MPH) 2017 11 48.
Learned counsel for the respondents argued that TRCA of the applicants were wrongly fixed by the respondents and when the Audit Team has raised objection, the same was recovered from the applicants. Learned counsel for respondents also relied upon the judgment passed by the Hon’ble Supreme Court in the case of High Court of Punjab and Haryana and others Vs. Jagdev Singh in Civil Appeal No. 3500 of 2006 decided on 29th July, 2016.
I have gone through the rival submissions of the learned counsel for the parties and perused the entire pleadings.
From perusal of record, it is admitted fact that applicants were granted enhanced TRCA on the recommendations of the Committee and when the Audit Team has objected, recovery was started from the applicant but without issuing recovery order, no show cause was issued to the applicants. It is also admitted fact that in getting revised TRCA, applicants have not misrepresented or fraud have been committed by the applicants. Applicants are poor GDS employee. If deduction is to be made from the salary of the applicants, it would be difficult for the employee to provide basic needs of the family.
It is worthwhile to mention that it is settled law on the point that firstly no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then also adhering to the Principle of Natural Justice, a show cause notice is a condition precedent for making any such recovery. The bare reading of the entire C.A. there is no whisper about a word notice is shown. It is really very surprising that as to why without issuance of show cause notice, the recovery in question was made.
State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33. In this case, Hon’ble Supreme Court has been pleased to observe as under:-
”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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from 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.
Not only this, the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
“8. We are of the considered view, after going through the “various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.”
Undoubtedly, the amount can be recovered if it is a wrong calculation on the part of the respondents and any amount excess paid to the applicant but the applicant is entitled to have an opportunity of hearing and the principles of natural justice cannot be violated.
In the case of Davinder Singh and others Vs.State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon’ble Apex Court has also been pleased to observe that “opportunity of hearing is to be given to the delinquent before passing an order.”
Admittedly, in the instant case, applicants are a Group D employee and has not committed any fraud or misrepresentation in getting the TRCA, reducing his pay and recovering an amount without issuing a show cause notice to them, is not justifiable.
As far as case law relied upon by the learned counsel for respondents is concerned, in that case applicant was posted as Civil Judge and have given an undertaking that any payment found to have been made in excess would be required to be refunded. Whereas in the present case, applicant is a Group D employee and as per the case of State of Punjab and others Vs. Rafiq Masih (supra), no recovery can be made from any group D employee.
If the undertaking said to have been given by the applicants are taken into consideration, then also it is based on a proforma with mention for refund of overpayment, if any made on account of incorrect fixation. The undertaking is a part of proforma and it is well known that the person belonging to lower post, put signature on such undertaking without application of mind. Similar views have been propounded in the case of Mohammed Yosuf Vs. Maharana Pratap Agriculture & Technology University, Udaipr (supra),Prakash Chandra Bothra vs. UOI (supra) ,Ms. Mridula Saxena Vs. State of M.P (supra) and in K.L.Makashre Vs. Sanchalnalaya Udhyaniki Evan (supra). Hence the case law relied upon by the learned counsel for respondents will not be applicable in the present case.
Since there was no fault on the part of the applicants, fixation was made by the department itself, recovery if any should have been made from the officer, who has made wrong fixation. Applicants who are not at fault, cannot be fastened with the liability of wrong fixation. Since no exception has been carve out by the Hon’ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (supra), as has been argued by the learned counsel for the respondents, therefore, recovery process started for the overpayment from Group D employees are not sustainable.
Considering the facts and circumstances of the case and in the light of the observations made by the Hon’ble Apex Court, all the O.As are disposed off with following directions:-
i) As far as reducing the pay of the applicants are concerned, impugned orders dated 15.1.2018 and 15.2.2018 in O.A. No.187/2018, impugned order dated 18.1.2018 and 15.2.2018 in O.A.No. 563/2018, impugned order dated 7/13.3.2018 in O.A. No. 564/2018 and impugned order dated 18.1.2018 are quashed. If there is a need for review of salary of the applicants, a show cause notice be issued to them and after affording opportunity of hearing to them, respondents may refix the salary/wages by passing a reasoned and speaking order.
ii) Since the applicants were GDS employee, in view of law laid down in the case of State of Punjab and others Vs. Rafiq Masih (supra), recovery process started from the applicants are hereby quashed. If any amount has already been recovered, the same shall be refunded to the applicant within a period of 3 months with simple interest @ 6% per annum. If any amount is still to be recovered, same shall not be recovered.
iii) No order as to costs.
iv) Copy of this order be placed in all the connected O.As.