Kailash Nath vs Senior Superintendent Of Post Offices

By filing the instant OA, the applicant is seeking the following reliefs:-

"i) To allow this OA and quash the impugned orders of recovery of Rs.105775/- mentioned below the letter dated 28.4.2016 against the copy endorsed to the Postmaster, Jhilmil H.O., Delhi - 95 (Rs.105775/- may be recovered from DCRG).

ii) The cost of the proceedings may also be awarded in favour of the applicant being poor and innocent.

(iii) Any other relief(s), which the Hon'ble Tribunal deems fit and proper in the circumstances of the case and in the interest of justice may be granted to the applicant."

Brief facts of the case are that the applicant, who was selected as Postal Assistant and was sent for trainings from 1.1.1996 and after completion of theoretical and practical trainings, was appointed on the said post w.e.f. 2.4.1996 and was also granted second and third financial upgradations. However, the third financial upgradation which was granted to the applicant vide Memo dated 19.1.2014 in the grade pay of Rs.4200 has been withdrawn vide Corrigendum dated 3.2.2016 (Annexure A-III).

2.1 The applicant retired from the service of the respondents on 29.2.2016. However, pursuant to the aforesaid Corrigendum dated 3.2.2016, the respondents have issued the impugned order dated 28.4.2016 (Annexure A-1) ordering recovery of Rs.105775/- from the amount of DCRG accorded for the payment of Rs.586928/-. However, no show cause notice has been issued and further no intimation of recovery and details of recovery has been provided to the applicant.

2.2 The applicant through his counsel sent a legal notice dated 8.8.2016 (Annexure A-5) to the respondents against the alleged recovery of Rs.105775/- which was recovered from the DCRG of the applicant after his retirement but the respondents did not give any reply to the said legal notice.

2.3 Being aggrieved by the said action of the respondent, the applicant has approached this Tribunal for redressal of his grievances.

In the counter affidavit filed by the respondent pursuant to notice, it is stated that the applicant retired from Government service from O/o SSPOs, Delhi East Division, Delhi-110051 on 29.2.2016. The applicant's service particulars are as under:-

a. Date of entry in the Department (as Packer) : 25.05.1973;

b. Date of entry in Postman cadre: 08.03.1989;

c. Date of entry in Postal Assistant cadre: 02.04.1996;

d. Date of financial upgradatio under MACP-II: 01.09.2008.

3.1 The applicant joined the Department of Posts as a Packer and was promoted to the post of Postman and then to Postal Assistant cadre w.e.f. 2.4.1996 (corresponding Grade Pay of Rs.2400/- after sixth Pay Commission) after passing LDCE. The financial upgradation under MACP-II was granted to the applicant w.e.f. 1.9.2008 (Grade Pay of Rs.2800/-) and thereafter the applicant was granted 3rd Financial upgradation under MACP Scheme w.e.f. 19.1.2014 vide Memo dated 15.5.2014. But AAO (Inspection), Posts & Telecommunications Audit Office, Delhi raised objection that as applicant had already got three promotions, hence, the fourth promotion (upgrading to Grade Pay Rs.4200/-) could not have been given to him. Thus, the applicant's case was re-checked and the 3rd financial upgradation granted to him has been withdrawn by the SSPOs Delhi East Division vide Memo dated 3.2.2016 (Annexure RR-III). Since the applicant had retired from Government service on 29.2.2016 on attaining age of superannuation, an overpayment of Rs.105775/- was adjusted from the DCRG vide Memo dated 28.4.2016 (Annexure RR-IV) in view of authorization received from Sr. Accounts Officer, O/o G.M. (Finance), Postal Accounts Office, Delhi vide Memo dated 22.4.2016 (Annexure RR-IV). The legal notice dated 8.8.2016 received from Shri R.C. Gautam, advocate of the applicant has already been reply by the respondent vide letter dated 7.11.2016 (Annexure RR-V).

3.2 They further stated that applicant was appointed as Packer initially i.e. direct entry in the grade and his appointment to the post of Postman/Postal Assistant after passing the LDCE would be a promotion and the same cannot be equated to be a direct appointment. This appointment is a promotion and would be considered as a promotion for considering the cases of the applicant for grant of MACP. Once the applicant has already got three promotions, he is not entitled for the grant of any further benefit under MACP Scheme as the same provides that there shall be three financial upgradations counted from the direct entry on completion of 10, 20 and 30 years of service respectively. Moreover, as per Rule 73 of CCS (Pension) Rules, 1972, regarding adjustment of dues other than dues pertaining to Government accommodation, the dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of retirement gratuity becoming payable to the Government servant on his retirement. As such the action of the respondents is in accordance with law and as per rules on the subject.

In the rejoinder filed by the applicant, he reiterated the stand taken by him in the OA and refuted the contents of the counter affidavit.

Heard learned counsel for the applicant and learned counsel for the respondents and perused the material placed on record.

Counsel for the applicant submitted that the said recovery made by the respondents from the DCRG without issuing any show cause notice is not sustainable in the eyes of law as the said recovery pertains to the period when he was granted 3rd financial upgradation vide Memo dated 15.5.2014 and the said financial upgradation granted to the applicant is not granted to him due to any fraud or misrepresentation made by him but the same has been granted by the respondents themselves and as such at the time of his retirement the same cannot be recovered from his retiral dues. In support of his contention, learned counsel for the applicant placed reliance on the decision of the Hon'ble Supreme Court in the case of State of Punjab and others vs. Rafiq Masih and others, 2015 (4) SCC 334.

Counsel for the respondents submitted that 3rd financial upgradation wrongly granted to the applicant vide Memo dated 15.5.2014 as he had already availed three promotions and as such AAO (Inspection), Posts & Telecommunications Audit Office, Delhi raised objection that as applicant had already got three promotions, hence, the fourth promotion (upgrading to Grade Pay Rs.4200/-) could not have been given to him. Therefore, the applicant's case was re-checked and 3rd financial upgradation granted to him has been withdrawn by the SSPOs Delhi East Division vide Memo dated 3.2.2016 (Annexure RR-III). Since the applicant had retired from Government service on 29.2.2016 on attaining age of superannuation, an overpayment of Rs.105775/- was adjusted from the DCRG vide Memo dated 28.4.2016 in view of authorization received from Sr. Accounts Officer, O/o G.M. (Finance), Postal Accounts Office, Delhi vide Memo dated 22.4.2016.

7.1 Counsel further submitted that as per the provisions of Rule 73 of CCS (Pension) Rules, 1972, action of the respondents is in accordance with law and as per rules on the subject.

After giving thoughtful consideration to the rival contentions of the parties, this Court is unable to accept the contentions of learned counsel for the respondents as it is admitted fact that the said 3rd financial upgradation was granted to the applicant by the respondents themselves and the same is not based on any misrepresentation or fraud on the part of the applicant. This issue has been dealt with by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) in which the Apex Court held as follows:-

"12. 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."

In view of the aforesaid clauses (i) and (ii), this Court is of the view that the said recovery is impermissible. Further the Apex Court in Bhagwan Shukla Vs. Union of India & others, 1994 (6) SCC 154, is similar circumstances, has held that an order passed in violation of principles of natural justice cannot be sustained. In para 3 of the judgment, the Apex Court observed as under: "The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause ...Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him hearing in the matter." The issue of recovery due to mistake has been dealt with by the Hon'ble Supreme Court in number of cases and the consistent view taken by the Hon'ble Supreme Court is that in case, the pay had been fixed by the authorities under some misconception or misinterpretation of rules without any misrepresentation made by the employee concerned, the amount already paid should not be recovered though they may do the corrections after putting the employee on notice.

In view of the above, for the foregoing reasons, the impugned order dated 28.4.2016 is quashed and set aside. The respondents are at liberty to take appropriate course in respect of alleged excess payment in accordance with law and also with regard to the latest judgment of the Hon'ble Supreme Court on the subject. There shall be no order as to costs.