Ramesh Chand Gupta vs Mahanagar Telephone Nigam Limited And Ors

The applicant has filed this OA seeking the following reliefs:-

“1. To set aside notice issued vide letter No.AO(P&A)HQ/MTNL/RCG/88639/17-18, dated 01.12.2017 (Annexure A-1) and to direct the

respondent not to recover Rs.4,07,447/-(Rs. Four lakh and seven thousand four hundred and forty seven only) from the applicant’s monthly salary.

To set aside the Respondent order No.Dy.Mgr.(P&AHQ)/VR-4/RCG/D 0900031/17-18 dated 11.01.2018 (Annexure A- 2) for starting the

recovery @ Rs.20,000/- per month from December, 2017 onwards from the applicant’s monthly salary.

To direct the Respondents to immediately refund Rs.20,000/- (Rs. Twenty thousand only) recovered from the monthly salary of December 2017 of

the applicant.

To direct the Respondents to pay Rs.50,000/-to the Applicant as the cost of this litigation.

To pass such further order(s) and/or give direction(s) as deemed fit and proper in the facts and circumstances of the case.â€​

The applicant, through this OA, has challenged the respondents’ order dated 01.12.2017 whereby the applicant has been informed that there is

so called overpayment of Rs.4,07,447/- due to wrong fixation of pay w.e.f. 01.01.2007 while implementing the 2nd Pay Revision Committee Report.

The applicant alleged that this action of the respondents is totally arbitrary and in violation of the provisions of the DOPT OM dated 02.03.2016 which

directs the Departments/Ministries not to make 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, in the light of the judgment of the Hon’ble Supreme Court in the case of State of Punjab and others

etc. vs. Rafiq Masih (White Washer etc.) in Civil Appeal No. 11524 of 2014. The applicant submits that his case is squarely covered by this judgment

as the respondents have ordered for recovery for the wrong fixation of pay w.e.f 01.01.2007 while implementing the second Pay Revision Committee

Report.

The respondents, while contested the OA, have filed their reply. During the course of the arguments, the respondents have submitted that the

applicant has not challenged the re-fixation as being wrong but has also challenged the recovery order on the sole ground that it would cause undue

hardship to him. As such, it is an admitted case of the applicant that the overpayment has been made to the applicant by wrong fixation and therefore,

the respondents are within their right to recover the same. The respondents have further contended that the recovery of overpayment in the instant

case has been made in accordance with Rules 71 and 73 of the CCS (Pension) Rules, 1972. They have also contended that the applicant’s case is

not covered by the judgment of the Rafiq Masih’s case (supra) as there is no situation in case of the applicant herein as he is presently working

with the answering respondents and will be superannuated in the year 2020 and recovery sought on account of excess payment due to wrong fixation

will be completed during his services.

After hearing both the parties, the Tribunal, in order to adjudicate the matter, thinks it necessary to through the provisions of the Rule 71 and 73 of

the CCS (Pension) Rules, which clear provides as under:-

“71. Recovery and adjustment of Government dues

(1) It shall be the duty of the Head of Office to ascertain and assess Government dues payable by a Government servant due for retirement.

(2) The Government dues as ascertained and assessed by the Head of Office which remain outstanding till the date of retirement of the Government

servant, shall be adjusted against the amount of the 1[retirement gratuity] becoming payable.

(3) The expression `Government dues' includes -

(a) dues pertaining to Government accommodation including arrears of licence fee * [as well as damages for the occupation of the Government

accommodation beyond the permissible period after the date of retirement of the allottee )] if any ;

(b) dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance,

overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961).

Adjustment and recovery of dues other than dues pertaining to Government accommodation

(1) For the dues other than the dues pertaining to occupation of Government accommodation as referred to in Clause (b) of sub-rule (3) of Rule 71,

the Head of Office shall take steps to assess the dues ^[one year] before the date on which a Government servant is due to retire on superannuation ;

or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.

(2) The assessment of Government dues referred to in sub-rule (1) shall be completed by the Head of Office eight months prior to the date of the

retirement of the Government servant.

(3) 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 1[retirement gratuity] becoming payable to the Government servant on

his retirement.â€​

The Tribunal like went through the provisions of Rule 58 which reads as under:-

“Every Head of Office shall undertake the work of `preparation of pension papers in Form 7 two years before the date on which a Government

servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.â€​

From the file, it is clear and indisputable that the applicant is still serving with the respondent department and the year of his superannuation is 2020.

Hence, there is no delay on the part of the respondents to make recovery from the applicant in light of the provisions of Rules 71 and 73 read with rule

The provisions of these rules clearly empower the Government to assess and recover the dues which remain outstanding till the date of retirement

of the Government servant. Since the applicant is due to retire in the year 2020, the respondents have timely ordered the recovery of excess amount

paid to the applicant on wrong fixation of his pay as per the provisions of aforesaid Rules of CCS(Pension) Rules.

In view of the above provisions of the CCS(Pension) Rules, we do not find any merit in this OA and it is accordingly dismissed. No order as to

costs.