Ranbir Singh Grewal vs Delhi Development Authority & Others

R.N. Singh, Member (J)

(Through Video Coonferencing)

In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant while working as Assistant Engineer (Civil) retired on 31.1.2019 on attaining the age of superannuation is aggrieved by the order No.610 dated 21.5.2019 (Annexure A-1) issued after retirement of the applicant vide which the benefits granted to him of second financial upgradation under Assured Career Progression (ACP) Scheme way back on 17.1.2006 effective from 12.11.2005 has been withdrawn and his pay has been re-fixed w.e.f. 4.2.2008 and a recovery of a sum of Rs.11,81,827/- has been effected from his gratuity. He is also aggrieved by EO No.655 dated 31.5.2019 (Annexure A-2) vide which the benefits of third financial upgradation under Modified Assured Career Progression (MACP) Scheme, which has been refixed by the respondents, has been made effective from 4.2.2014.

The applicant has prayed for the following reliefs:-

"(a) To set aside the impugned order No. 610 dated 21.05.2019 and Order No.655 dated 31.5.2019 and to set aside the recoveries from the retiral benefits.

(b) To direct the Respondents to release the entire amount of gratuity without any deduction.

(c) To direct the Respondents release the payment of Rs.11,81,827/- illegally recovered by respondents from retiral dues of Applicant together with interest @15% p.a. from the date of accrual to the date of payment.

(d) To pass any order/directive/relief as this Hon'ble Tribunal may consider at its discretion just and proper."

Pursuant to notice from this Tribunal, the respondents have filed counter reply and applicant has filed rejoinder.

The brief undisputed facts coming from the pleadings on records are that the applicant joined as Junior Engineer (Civil) on 12.11.1981 under the respondents and he retired as Assistant Engineer (Civil) on attaining the age of superannuation from the service of the respondents w.e.f. 31.1.2019. The applicant was granted first financial upgradation under ACP Scheme w.e.f. 1.11.2001 instead of 9.8.1999, i.e., after expiry of penalty period, vide E.O. No.503 dated 12.4.2002. The first financial upgradation under ACP Scheme was delayed by two years, two months and twenty two days and the benefits of second financial upgradation under ACP Scheme have been granted to the applicant w.e.f. 12.11.2005 vide E.O. No.71 dated 17.1.2006 and the benefits of third financial upgradation under MACP Scheme have been granted to the applicant w.e.f. 12.11.2011 vide E.O. No.1964 dated 28.12.2012 on completion of 24 years and 30 years of service respectively. The penalty of stoppage of two increment without cumulative effect was imposed on the applicant vide order dated 26.4.1999 arising out of the chargesheet dated 11.1.1995. On completion of penalty period, first ACP was granted to the applicant on 1.11.2001 instead of 9.8.1999. After the applicant had retired on 31.1.2019, the respondents have finalized the retiral benefits and had issued PPO bearing number 9396, according to which, the monthly pension before commutation was fixed at Rs.47050/- and after commutation was fixed at Rs.37640/- per month. Retirement gratuity and commutation of pension was fixed at Rs.17,38,968/- and Rs.9,25,267/- respectively. The applicant was pursuing to get the gratuity amount. However, he came to know that the respondents have issued impugned order dated 21.5.2019 vide which the benefits of second ACP granted earlier on 17.1.2006 effective from 12.11.2005 has been withdrawn and re-fixed w.e.f. 4.2.2008. He had also come to know that benefits of third MACP was also withdrawn.

Learned counsel for the applicant has argued that impugned orders are issued in utter violation of law laid down by the Hon'ble Apex Court in the case of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc., reported in AIR 2015 SC 596 and Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, reported in (2012) 8 SCC 417, and also in utter disregard of Office Memorandum dated 2.3.2016 issued by the DoP&T and the respondents' own circular dated 26.4.2016 which provides that no recovery can be effected after retirement unless the excess payment is a result of wrong information provided by the employee. It is contended on behalf of the applicant that the benefits accorded to the applicant vide order dated 28.12.2012 effective from 12.11.2011 is revised from 4.2.2014 (Annexure A-2) and vide the impugned non-speaking and cryptic orders, the respondents have proposed to recover the amount of Rs. 11,81,827/- (Annexure A-3). Shri Verma has argued that the impugned orders and recovery made are not only in violation of the aforesaid instructions/ policy decision on the subject and the law laid down by the Hon'ble Apex Court but also against the principles of natural justice inasmuch as no notice has been given to the applicant before passing the impugned orders.

Per contra, Ms. Chatterjee, learned counsel for the respondents, has submitted that during pre-audit of pension and terminal benefits, some discrepancies were noticed by Accounts Wing with regard to grant of 2nd ACP and 3rd MACP to the applicant. With the assistance of the counter reply, she has further submitted that a penalty of stoppage of two increments without cumulative effect was imposed upon the applicant vide order dated 26.4.1999 arising out of the charge memo dated 11.1.1995 and on completion of penalty period, first ACP was allowed to the applicant w.e.f. 1.11.2001 instead of 9.8.1999 vide order dated 12.4.2002. She has also submitted that DoP&T had issued clarification that if a financial upgradation has been deferred/postponed on account of an employee is not found fit or due to departmental proceedings etc., 2nd and 3rd financial upgradation under ACPs/MACPs would have consequential effect. In the present case, first financial upgradation was delayed by two years, two months and twenty two days and therefore, 2nd ACP and 3rd MACP should have also deferred by the same period. However, inadvertently, 2nd ACP and 3rd MACP were granted to the applicant on completion of 24 years and 30 years of service respectively. She has also submitted that on the recommendation of the Accounts Wing, 2nd ACP and 3rd MACP earlier granted to the applicant was revised with the approval of the competent authority. She has further added that in view of refixation of the pay of the applicant, a recovery of an amount of Rs.11,81,827/- was worked out and recovered from the applicant. She has also submitted that besides the said recovery, a sum of Rs.33,750/- needs to be deposited by the applicant, towards medical contribution and a sum of Rs.5,23,391/-has already paid to the applicant.

In rejoinder, learned counsel for the applicant has reiterated his arguments and he has emphasized that in view of OMs dated 6.2.2014 and 2.3.2016 issued by the DoP&T as well as the law laid down by the Hon'ble Apex Court in Rafiq Masih (supra) and Chandi Prasad Uniyal (supra), recovery from the applicant is not permissible.

We have perused the pleadings on record and we have also considered the submissions made by the learned counsels for the parties.

From the aforesaid, it is evident that the grievances of the applicant are twofold; (i) after his retirement on 31.1.2019 on attaining the age of superannuation, the benefits granted to the applicant under ACP Scheme way back on 17.1.2006 effective from 12.11.2005 has been withdrawn vide impugned order dated 21.5.2019 (Annexure A-1) and recovery of a sum of Rs.11,81,827/-has been effected from his gratuity; and (ii) benefits of Third financial upgradation under MACP Scheme granted to the applicant on completion of 30 years of service vide Office Order dated 28.12.2012 effective from 12.11.2011 has been withdrawn from the applicant.

It is not in dispute that the applicant was granted First financial upgradation under ACP Scheme w.e.f. 01.11.2001 instead of 9.8.1999, i.e., after expiry of penalty of 'stoppage of two increment without cumulative effect' imposed vide order dated 26.4.1999 and the respondents have granted the benefit of Second financial upgradation under ACP Scheme w.e.f. 12.11.2005 to the applicant, i.e., on completion of 24 years of service and benefit of Third financial upgradation under MACP Scheme on completion of 30 years, i.e., w.e.f. 12.11.2011. The respondents have issued order dated 16.8.2019 (Annexure A-7 Colly) through Banker of the applicant vide which the pay of the applicant has been re-fixed and recovery has been suggested.

Shri Verma, learned counsel for the applicant has advanced arguments that in view of the law laid down by the Hon'ble Apex Court followed by the respondents in their two Office Memoranda dated 6.2.2014 and 2.3.2016, recovery is not permissible. Other ground which has been vehemently argued that after years of grant of the benefits under ACP/MACP Schemes, the respondents could not withdraw the same and that too without putting the applicant on notice, reduce the pay and pension of the applicant. Para 3 of Office Memorandum dated 6.2.2014 issued by the DoP&T reads as under:-

"3. In view of the law declared by Courts and recently reiterated by the Hon'ble Supreme Court in the above cited case, Chandi Prasad Uniyal And Ors vs State Of Uttarakhand And Ors, 2012 AIR SCW 4742, (2012) 8 SCC 417, the Ministries/Departments are advised to deal with the issue of wrongful/excess payments as follows:

i. In all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc come to notice, immediate corrective action must be taken.

ii. In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment, and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee.

iii. Whenever any excess payment has been made on account of fraud, misrepresentation, collusion, favouritism, negligence or, carelessness, etc., roles of those responsible for overpayments in such cases, and the employees who benefitted from such actions should be identified, and departmental/criminal action should be considered in appropriate cases.

iv. Recovery should be made in all cases of overpayment barring few exceptions of extreme hardships. No waiver of recovery may be allowed without the approval of Department of Expenditure.

v. While ordering recovery, all the circumstances of the case should be taken into account. In appropriate cases, the concerned employee may be allowed to refund the money in suitable installments with the approval of Secretary in the Ministry, in consultation with the FA.

vi. Wherever the relevant rules provide for payment of interest on amounts retained by the employee beyond the stipulated period etc as in the case of TA, interest would continue to be recovered from the employee as heretofore."

In view of the law laid down by the Hon'ble Apex Court in the case of Rafiq Masih (supra), the respondents have issued Office Memarundam dated 2.3.2016 (Annexure A-9 Colly) and para 4 thereof reads as under:-

"4. The Hon'ble Supreme Court while observing that 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 has summarized 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."

From the aforesaid, it is evident that impugned recovery from the applicant evidently falls under the categories of (4) (ii) and (iii).

It is not in dispute that the applicant was granted first financial upgradation under ACP Scheme w.e.f. 01.11.2001 instead of his entitlement for the same w.e.f. 9.8.1999 on account of currency of penalty of 'stoppage of two increment without cumulative effect' and as deferment of grant of benefit of First financial upgradation by two years, 2 months and 22 days is not under challenge in the present OA, we refrain ourselves to interfere in the same. However, the Second financial upgradation under ACP Scheme granted to the applicant w.e.f. 12.11.2005 vide order dated 17.1.2006 on completion of 24 years of service and the benefit of Third financial upgradation granted to the applicant w.e.f. 12.11.2001 vide order dated 28.12.2012, after around 14 years or around 8 years respectively and that too after retirement of the applicant, have been withdrawn vide impugned orders leading to recovery from the applicant is under challenge.

An identical issue came up before us for adjudication in OA 2245 of 2017, titled Balraj Singh vs. Delhi Development Authority, as to whether on account of one of minor penalties, i.e., 'stoppage of one increment for two years without cumulative effect' can entitle the respondents to withhold the financial upgradation of the applicant. We have held in the said OA vide Order dated 12.11.2021 that the same is not permissible. Moreover, similar issue came up for consideration before this Tribunal in OA 4462/2011, titled Hayat Ram vs. Commissioner of Police and others, wherein the case of the applicant therein was that he was to be given 2nd ACP w.e.f. 15.7.2000 after completion of 24 years of service under the old ACP Scheme of 1999. The same was, however, deferred by 20 days on account of the punishment of censure awarded to him vide order dated 4.2.2000. He was given the benefit of ACP Scheme ultimately w.e.f. 4.8.2000 after expiry of six months from the order dated 4.2.2000 awarding punishment of censure. The applicant had already put in more than 30 years of service as on 1.9.2008 when the recommendations of 6th CPC were implemented whereupon MACP Scheme was introduced. The claim of the applicant was that he should have been granted the benefit of 3rd MACP w.e.f. 1.9.2008 as he has completed 30 years of service on 15.6.2006. The claim of the applicant was opposed by the respondents on the ground that the applicant was not found fit for grant of 3rd financial upgradation under MACP Scheme w.e.f. 1.9.2008 as per the instructions contained in para 15 of the MACP Scheme and subsequent clarifications thereon against point of doubt no.7 vide Government of India Office Memorandum dated 9.9.2010. According to the respondents, the same provides that if a financial upgradation has been deferred /postponed on account of the employee not found fit or due to departmental proceedings etc. the 2nd/3rd financial upgradation under MACP Scheme would have consequential effect on the subsequent financial upgradation which would also got deferred to the extent of first financial upgradation. This Tribunal after considering the relevant provisions of ACP/MACP Schemes in the said OA, vide Order dated 28.3.2012 held in paras 14 and 15 as under:-

"14. Having bestowed our careful consideration, we find that the Scheme as drafted does not present a satisfactory reading. The illustrations that are intended to elucidate and clarify certain aspects have in fact further confounded the matter, rendering it ambiguous on certain vital aspects. The Scheme essentially envisages grant of three financial upgradations upon completion of 10, 20 and 30 years respectively provided one has not earned any promotion in that time span. But illustration A in para 28 of the Scheme indicates the feasibility of grant of 2nd and 3rd financial upgradation even before completion of 20 years or, as the case may be, 30 years provided an employee has rendered continuous service in the same Grade pay for 10 years. On the other hand, illustration C. in Para 28 provides for 3rd financial upgradation upon completion of 30 years of service even if the employee has not rendered continuous service in the same Grade Pay for 10 years. The concerned authorities may, therefore, consider suitable revision of the Scheme with a view to make it more clear and unambiguous.

Since illustration as at para 28 C. of the MACP Scheme is crystal clear and squarely covers the claim of the applicant in these proceedings, we direct the respondent no.2 to consider the applicants claim in terms of Para 28 C. of the MACP Scheme by holding a review Departmental Screening Committee meeting with consequential benefits, including arrears of pay. The Scheme envisages holding of Departmental Screening Committee meeting in every six months. Accordingly the next Screening Committee meeting is scheduled to be held in the first week of July, 2012. Respondent no.2 may consider the applicants case either before the Screening Committee meeting to be held in July 2012 or a Review Screening Committee meeting for such consideration. If upon consideration, he is found fit for the grant of 3rd financial upgradation, the benefits thereof be extended to the applicant from due date. The directions issued as above will, however, not debar the respondents from taking recourse to the provisions of Para 9 of the Scheme for clarifying their doubt, if any, in the matter."

It is not the case of the respondents that the applicant has made any misrepresentation in making the respondents to grant the benefit of second financial upgradation under ACP Scheme w.e.f. 12.11.2005 on completion of 24 years of service vide order dated 17.1.2006 and the benefit of third financial upgradation under MACP Scheme w.e.f. 12.11.2011 on completion of 30 years of service vide order dated 28.12.2012. Therefore, withdrawal of the same vide impugned order after the applicant's retirement is very harsh, arbitrary and therefore, the recovery is found to be impermissible in view of the provisions of Office Memorandum dated 2.3.2016 of the DoP&T under reference.

In view of the aforesaid, withdrawal of the benefits granted to the applicant under 2nd ACP and 3rd MACP Schemes is found to be contrary to the Order/Judgment of this Tribunal in OA 2245/2017 in the case of Balraj Singh (supra) and the Order/Judgment of the coordinate Bench of this Tribunal in OA 4462/2011 in the case of Hayat Ram (supra). Further the recovery ordered vide impugned order is found to be contrary to the provisions of para 4 of the Office Memorandum dated 2.3.2016 under reference.

In view of the aforesaid, OA deserves to be allowed and the same is accordingly allowed with the following orders:-

(i) The impugned order No.610 dated 21.5.2019 (Annexure A-1) and Impugned Order No.655 dated 31.5.2019 (Annexure A-2) are set aside.

(ii) The respondents are directed to release the withheld/recovered amount from the gratuity and other retiral dues of the applicant. The respondents are further directed to pay interest on the withheld pensionary benefits and/or the recovery made from the applicant's gratuity benefits with interest admissible on GPF from became payable to the actually paid to him. and/or any other retiral thereon at the rate as the date when the same applicant till the same is

(iii) The respondents are further directed to complete the aforesaid exercise within eight weeks of receipt of a copy of this Order.

However, in the facts and circumstances, there shall be no order as to costs.