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Judgment
By filing this OA, the applicant is seeking the following reliefs:-
"i) that the impugned office order No.SO (EE-I/867/EA-VI dated 29/05/2017 issued by Dy. Director (Elect. Estt. I) of the Respondents, issued in supersession of Office Order No. 2259/EC-IX dated 14.07.2000, whereby her Pay has been drastically reduced at the time of her retirement on superannuation on 31.05.2017 be quashed.
ii) That Respondents be directed to release arrear of pay to the applicant on the basis of earlier Office Order issued by the Personnel Deptt. of NDMC from time to time throughout her service carrier considering and relying upon her option dated 223.4.1996 under F.R. 22(1)(a)(1) exercised at the time of grant of 1st Time Bound Promotional Scale for retaining the date of increment in June, which had since attained its finality as the same was accepted by the competent authority of NDMC and was acted upon by the Respondent Deptt. throughout her service carrier and amount of Rs.3,33,968/- thus recovered from her last dues of leave encashment on the basis of impugned order be paid to him alongwith interest of 18 (eighteen) percent.
iii) That Respondent be directed to revise pension of the Applicant, release difference of DCRG, commutation of pension, leave encashment based on such last pay drawn fixed as prayed in pray ii) above along with interest of 18 (eighteen) percent per annum on all such retiral benefit arrears and all other delayed payments released to the applicant after retirement.
Brief facts of the case are that applicant was appointed on regular basis as Junior Clerk with the respondents on 26. 10.1979. Thereafter, after qualifying the departmental examination, she was appointed as Steno w.e.f. 17.6.1982 and as per the policy of respondent, applicant was granted 1st, 2nd and 3rd Time Bound Promotional (TBP) scales after completion of service of 10, 18 and 26 years w.e.f. 17.6.1992, 17. 6.2000 and 17.6.2008 respectively.
2.1 Applicant further stated that respondent Deptt. in its own wisdom processed the case of the applicant for grant of 1st TBP scale, which was due to her on 17.6.1992 as late as in the fag end of January 1996 and as per the approval of the competent authority/Secretary, NDMC issued orders for grant of Ist TBPS to her w.e.f. 1.6.1995 fixing her pay as Rs.1950/-per month vide order dated 22.2.1996. The applicant thereafter exercised option dated 23.4.1996 under FR 22(1)(a)(i) for retaining the date of increment in June as is evident from document annexed at page 63 of the OA. Accordingly, the competent authority accepted the said option and her pay was re-fixed as under:-
Rs.1850/- w.e.f. 1.10.1993 under F.R. 22 (a) (i)
Rs.1900/- w.e.f. 1.6.1994 under F.R. 22(1)(a)(3).
Rs.1950/- w.e.f. 1.6.1995
Rs.2000/- w.e.f. 1.6.1996
2.2 Thereafter applicant was granted 2nd TBP scale due on 17.6.2000 vide Office Order dated 7.1.2002 and her pay was fixed as Rs.7500/- w.e.f. 1.6.2001 (page 43 of the OA). The applicant exercised option of pay fixation at the time of grant of 3rd TBP scale due on 17.6.2008 and that her pay may be fixed initially from 1.6.2000 i.e, entitlement of TBP and w.e.f. 1.7.2008, her pay may be re-fixed after earning of annual increment in the lower scale. Accordingly, the pay of the applicant based on the said option was fixed as under:-
Rs.18020/- + 5400 w.e.f. 17.6.2008
Rs.19380/- + 5400 w.e.f. 1.7.2008
Rs.20130/- + 5400 w.e.f. 1.7.2009
Rs.20900 + 5400 w.e.f. 1.7.2010
2.3 The applicant retired on superannuation on 31.5.2017.
However, just before the retirement of the applicant, the Internal Audit Branch after scrutiny of personal file of the applicant observed vide note dated 16.5.2017 as under:-
"1. Leave credited for the period 1.7.1984 to 31.12.1984 and 1.7.1991 to 31.12.1991 is incorrect. Hence, the balance of EL from 1.7.1984 and onwards is also incorrect.
Office Order for the grant of 2st TBP has been issued on 22.2.1996 whereas an option has been given by the individual on 25.4.1996, i.e., two months late. Pl. clarify.
ACR for the period 1988-89, 1989-90 may be provided for grant of 1st TBP as ACR's for previous five years are required while granting the TBP.
While granting the TBP, deptt. has considered the option which was given after lapse of one month. Deptt. should re-examine.
While revising the scales from 6000-10800 to 6500-10,900, Deptt. has not placed the order of the same in the file.
Pay fixation on grant of IIIrd TBP as on 17.6.2008 is not correct.
Deptt. is required to re-examine the Pay fixation from 1st TBP and onwards after examining the last submission of the option along with the pay fixation from 18.6.1982 as well."
2.4 However, in response to the above, the competent authority gave clarification vide note dated 26.5.2017 and the matter was sent to the A.O.(Estt.) for checking the pay fixation as proposed above. Consequent upon checking the same, the respondents have issued the Office Order dated 29.5.2017 in supersession of Office Order No.2259/EC-IX dated 14.07.2000, fixing the pay of the applicant in the pay scale of Rs.1640-60-2600-EB-75-3275 w.e.f. 1.10.1993 as under:-
Existing pay as on 01.10.1993 in the pay scale of Rs.1320- 30-1560-EB-40- 2040-50-2290-EB60-2950 and fixed Rs.1800/-
Granted 1st TBPS in the pay scale of Rs.1640-60-2600-EB-75-3275 w.e.f. 01.10.1993
w.e.f. 01.10.1993 Rs.1880/-
01.10.1994 Rs.1940/-
01.10.1995 Rs.2000/-
Pay revised w.e.f. 01.1.1996 in the pay scale of Rs.5500-175-9875
w.e.f. 01.01.1996 Rs.6200/-
w.e.f. 01.10.1996 Rs.6375/-
w.e.f. 01.10.1997 Rs.6550/-
w.e.f. 01.10.1998 Rs.6725/-
w.e.f. 01.10.1999 Rs.6900/-
Granted 2nd TBPS w.e.f. 17.06.2000 in the pay scale of Rs.6500-200-10900
w.e.f. 17.06.2000 Rs.7100/-
w.e.f. 01.06.2001 Rs.7300/-
w.e.f. 01.06.2002 Rs.7500/-
w.e.f. 01.06.2003 Rs.7700/-
w.e.f. 01.06.2004 Rs.7900/-
w.e.f. 01.06.2005 Rs.8100/-
w.e.f. 01.06.2006 Rs.8300/-
Pay revised in 6th DTL pay scale w.e.f. 01.01.2006 in the pay scale of Rs.10900- 34800 GP 4200/-
w.e.f. 01.01.2006 Rs.16740/- + 4200/- GP
w.e.f.01.07.2006 Rs.17370+GP 4200/-
w.e.f.01.07.2007 Rs.18020+GP 4200/-
Granted 3rd TBPS w.e.f. 17.06.2008 in the pay scale of Rs.19000-39100+5400 GP (the incumbent has exercised her option)
w.e.f.17.06.2008 Rs.18020+5400 GP
w.e.f.01.07.2008 Rs.19380+5400 GP
w.e.f.01.07.2009 Rs.20130+5400 GP
w.e.f.01.07.2010 Rs.20900+5400 GP
w.e.f.01.07.2011 Rs.21690+5400 GP
w.e.f.01.07.2012 Rs.22510+5400 GP
w.e.f.01.07.2013 Rs.23350+5400 GP
w.e.f.01.07.2014 Rs.24220+5400 GP
w.e.f.01.07.2015 Rs.25110+5400 GP
w.e.f.01.07.2016 Rs.26030+5400 GP
Date of retirement
The above pay fixation is subject to the condition that the individual concerned will have to refund to the Council any amount, if on subsequent audit/check found to have been paid in excess."
2.5 Thereafter applicant preferred her representations dated 4.10.2017 and 1.12.2017 to the respondent (Chairman, NDMC) against the aforesaid action of the respondents reducing her pay and asked to release her last dues including retiral benefits but Dy. Director (Elect.) of the respondents department vide his letter dated 23.3.2018 conveyed that "competent authority has already rejected her request to condone the delay for option as option cannot be considered at this stage.
2.6 Being aggrieved by the aforesaid actions of the respondents as reduction of his pay that too from 1.10.1993 was done without issuing any show cause notice, the applicant has filed this OA seeking the reliefs as quoted above.
Pursuant to notice issued to the respondents, they have stated that the applicant was granted 1 TPBS w.e.f. 1.10.1993 vide order dated 22.2.1996 and in the said order, it has clearly stipulated that :
"(i) The option for pay fixation under F.R. 22(a)(1) if desired, should reach the concerned establishment within one month.
(ii) The above pay fixation is subject to the condition that the individual concerned will have to refund the council any amount that may on any subsequent check/audit be found to be paid to him/her in excess."
However, the option was given by the applicant on 25.4.1996, i.e. after a delay of one month beyond the permissible time period. But the department had inadvertently considered the said option which was given after the lapse of two-months and was not permissible in terms of the prescribed rules. The AO (IAB) has raised the objection pertaining to the belated option exercised by the applicant on 25.4.1996, i.e. after a delay of almost 2 months, which was not permissible as per rules.
3.1 They further stated that in terms of rules, when the applicant became eligible for 1st TBPS as Steno, she was granted 1st TBP w.e.f. 1.10.1993, after completion of 11 years of service. The details of ACR for the period was 1987-1988 Average and 1989-90 were not written. Therefore, due to the observation of audit branch her ACR's were again reviewed by the competent authority i.e. Secretary, NDMC on 1.10.2017.
As such there was no requirement for the respondents to issue a fresh show cause notice to the applicant when bonafide mistake in fixation of the above pay was noticed by the respondents. The said exercise would be a futility as the mistake and undertaking of the applicant to pay back any excess amount is undisputable. Further the order dated 22.2.1996 clearly provides the manner and conditions in which the option is to be accepted. Hence, if the option was to be exercised, the same has to be exercised in a particular manner and no one can claim that the said option can be exercised in derogation of the said manner/procedure.
3.2 They further stated that even at the time of grant of 3rd TBP, the applicant has accepted the condition that if in the future any amount is found to have been paid in excess, she would refund the same to the respondents (Annexure A-3).
During the course of hearing, learned counsel for the applicant submitted that respondents processed the case for grant of 1st TBP scale to the applicant, which was due to her on 17.6.1992, as late as in the fag end of January 1996 and as per the approval of the competent authority/Secretary, NDMC issued order for grant of 1st TBP scale to her vide order dated 22.2.1996 and the copy of the said order dated 22. 2.1996 was officially never served upon the applicant, which was collected by her at a later stage personally and thereafter she exercised option dated 23.4.1996 under FR22(1)(a)(i) for retaining the date of increment in June at page 63 of the paper book and thereafter vide order dated 4.6.1996 (page 64 of the paperbook) the competent authority accepted the said option exercised by the applicant and in superstation of the order dated 22.2.1996, her pay was re-fixed under FR 22(I)(a)(I) on the time scale of Rs.1640-40-1850-2300-EB-60-2600-EB-75-3275 as under:-
Rs.1850/- w.e.f. 1.10.1993 under FR 22(a)(I)
Rs.1900/- w.e.f. 1.6.1994 under FR 22(I)(a)(I)
Rs.1950/- w.e.f. 1.6.1995
Rs.2000/- w.e.f. 1.6.1995
4.1 As such from the said order, it is evidently clear that re-fixation of the pay of the applicant was done with the approval of the then competent authority and the same cannot be said to be an inadvertent mistake and the respondents have not denied the said document in their counter affidavit and as such the impugned order which is based on the fact that option was not exercised by the applicant within the time prescribed is misconceived and erroneous as once the then competent authority has accepted the option so exercised by the applicant, might be belatedly, the ground to recall the same at this belated stage, i.e, just before the retirement of the applicant in 2017, cannot be accepted because once the option exercised was accepted by the competent authority, the same was final, binding and could not be subject matter of review at a subsequent date that too on the observation of the audit challenging the exercise of delegated power. Therefore, the impugned order is liable to be set aside and the relief claimed by the applicant be granted.
4.2 Counsel further argued that the impugned order is also liable to be quashed on view of the fact that no notice was given by the respondents before refixing the pay of the applicant adversely that too from the year 1993 as it is settled law that an order for recovery passed against an employee results in civil consequences and without complying principle of natural justice, cannot be sustainable in the eyes of law.
4.3 Counsel for the applicant in support of claim of the applicant placed reliance on the decision of the Hon'ble Delhi High Court in the case of H.S. Dhiman vs. NDMC which decided vide Order dated 27.9.2007 held that refixation of pay cannot be an advertent mistake or error. He also placed reliance on the decision of this Tribunal in OA No.2801/2012 (Suraj Bhan vs. UOI and others) dated 17.9.2012 and submitted that in this case, this Tribunal specifically held that refixation of pay scale with retrospective effect amounted to depriving the valuable right and before visiting the same with such civil consequences, employee is entitled to a notice to show cause.
4.4 Further contention of the counsel for the applicant is that there was no misrepresentation on her part in fixation of the pension and, therefore, the recovery being made was contrary to the judgment of Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc., (Civil Appeal No. 11527/2014) dated 18.12.2014. He has also relied on the judgment of Apex Court in the case of Shyam Babu Verma Vs. UOI, 1994(27)ATC(SC) 121 and Syed Abdul Qadir Vs. State of Bihar, (2009) 3 SCC 475 and submitted that recovery is liable to be quashed.
On the other hand, counsel for the respondents reiterated the respondents stand as taken in the CA and further emphasized that since the applicant was going to retire, as per the usual practice, final audit check was carried out to finalize the retiral benefits of the applicant and Audit Branch observed that 1st TBP scale w.e.f. 22.2.1996 but an option was given by the applicant on 25,4,1996, i.e., after a delay of about 2 months, which as per the rules was not permissible and as such the fixation of her pay was basis of inadvertent error in considering her inadmissible acceptance. Furthermore, the applicant had also given an undertaking that she would refund any excess amount, which is found to have been paid to her in future. As such issuance of show cause notice would amount to futile formality as error apparent and applicant being subject to fixation of correct pay fixation and further adherence to issuance of show cause notice is not watertight formality, which are required to be followed irrespective of facts and circumstances of the case.
5.1 In support of the decision of the respondents, counsel placed reliance on the decision of the Hon'ble Supreme Court in the cases of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, (2012) 8 SCC 417, High Court of Punjab and Haryana & others vs. Jagdev Singh, (2016) 14 SCC 267, and Ashwani Kumar Singh vs. U.P. Public Service Commission and others, (2003) 11 SCC 584 and submitted that there is nothing wrong in the action of the respondents and the same is permissible as held by the Apex Court in the above cited judgments.
Heard learned counsel for the parties and perused the pleadings available on record. It is observed that there is no denial on the part of the respondents that the said option, which was exercised by the applicant after expiry of two months, was considered by the then competent authority and accordingly, order dated 4.6.1996 was issued in accordance with the said option exercised by applicant for re-fixation of her pay under FR-22(I)(a)(I). The only contention in this regard of the respondents that after expiry of one month, there is no provision to exercise such option under FR-22(I)(a)(I) and no benefit can be given to such employee in any manner and as such, the respondents have rightly re-fixed the pay of the applicant w.e.f. 1.10.1993 vide order dated
5.2017, is not sustainable as once the then competent authority in 1996 had taken such a decision to accept the option exercised by the applicant though belatedly submitted by her and re-fixed her pay, now at the time of retirement of the applicant, it cannot be said that the said re-fixation was based on inadvertent mistake. The Hon'ble Delhi High Court in the case of H.S. Dhiman vs. NDMC (supra) in paras 18 and 19 observed under:-
Support is sought to be drawn by the counsel for the respondent on the note which occurs at the bottom of the earlier Office Order dated 29th November, 1984 to the effect that the pay fixation done in terms of the aforesaid Office Order was subject to the condition that the individual concerned will have to refund to the respondent any amount that may on subsequent check or audit be found to have been paid to him in excess, is of no assistance in the present case as the said note is more in the nature of standard error or omission note which could have at best entitled the respondent to rectify/correct any error or omission in the nature of calculation error or typographical error in disbursement of amounts on the basis of the pay fixation in terms of the Office Order dated 29th November, 1984. The impugned Office Order dated 16th December, 1988 can certainly not be termed as an order in the nature of rectification of any error or omission so as to permit the respondent to invoke the said note. Refixation of pay of the petitioner can be of no stretch of imagination be called an 'error or omission' so as to attract the aforesaid note. Lastly, the clarificatory Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi with regard to implementation of selection grades of teachers also advances the case of the petitioner, as the said Circular stipulates that selection grades once given cannot be withdrawn.
For the aforesaid reasons, and primarily for the reason that the respondent/NDMC has violated the principles of natural justice while passing the impugned Office Order dated 16th December, 1988, the same is set aside and the writ petition is allowed. In view of the fact that the petitioner has already retired from service during the pendency of the present petition, he shall be entitled to all the monetary benefits in respect of his salary and consequential reliefs, emoluments including pension, that shall follow on implementation of the earlier Office Order dated 29th November, 1984, along with costs quantified at Rs. 5,000/-.
(emphasis supplied)
This Tribunal in the case of Suraj Bhan (supra) has also specifically held as under:-
"17. In view of the aforesaid facts and circumstances, it is held that the respondent has violated the principles of natural justice by seeking to take away the vested rights that had accrued in favor of the petitioner at the time of passing the Office Order dated 29th November, 1984 and before passing the earlier impugned Office Order dated 16th December, 1988. Refixing the pay scale of the petitioner with retrospective effect amounted to depriving the petitioner of his valuable rights. Before visiting the petitioner with such civil consequences, he was entitled to a notice to show cause. Thereupon the petitioner could have represented and shown to the respondent as to how and why the earlier Office Order dated 29th November, 1984 ought not to have been recalled. Such an opportunity, however, was never afforded to the petitioner in view of the unilateral decision taken by the respondent in the present case and thrust on the petitioner. It is also pertinent to note that there is no explanation offered in the impugned Office Order with regard to the purported error in calculation that finds reference in the averments made in the counter affidavit on behalf of the respondent. In fact a perusal of the impugned Office Order shows that the same is completely silent on the said aspect.
Support is sought to be drawn by the counsel for the respondent on the note which occurs at the bottom of the earlier Office Order dated 29th November, 1984 to the effect that the pay fixation done in terms of the aforesaid Office Order was subject to the condition that the individual concerned will have to refund to the respondent any amount that may on subsequent check or audit be found to have been paid to him in excess, is of no assistance in the present case as the said note is more in the nature of standard error or omission note which could have at best entitled the respondent to rectify/correct any error or omission in the nature of calculation error or typographical error in disbursement of amounts on the basis of the pay fixation in terms of the Office Order dated 29th November, 1984. The impugned Office Order dated 16th December, 1988 can certainly not be termed as an order in the nature of rectification of any error or omission so as to permit the respondent to invoke the said note. Refixation of pay of the petitioner can be of no stretch of imagination be called an 'error or omission' so as to attract the aforesaid note. Lastly, the clarificatory Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi with regard to implementation of selection grades of teachers also advances the case of the petitioner, as the said Circular stipulates that selection grades once given cannot be withdrawn.
For the aforesaid reasons, and primarily for the reason that the respondent/NDMC has violated the principles of natural justice while passing the impugned Office Order dated 16th December, 1988, the same is set aside and the writ petition is allowed. In view of the fact that the petitioner has already retired from service during the pendency of the present petition, he shall be entitled to all the monetary benefits in respect of his salary and consequential reliefs, emoluments including pension, that shall follow on implementation of the earlier Office Order dated 29th November, 1984, along with costs quantified at Rs. 5,000/-."
Since we observed above keeping in view the judgment of the Hon'ble Delhi High Court in H.S. Dhiman(supra) and of this Tribunal in Suraj Bhan (supra) that the said refixation in 1996 in the case of the applicant consequent upon her exercising option under FR 2(I)(a)(I) was not based on any inadvertent error and cannot be said to be an error or omission on the part of the respondents, therefore, this Tribunal finds that the case squarely covered by the above judgments. Hence, we do not find cause to give any deliberation on the judgments of the Hon'ble Supreme Court relied upon by the parties on the issue of recovery.
In view of the above and, for the foregoing reasons, the present OA is allowed. The impugned order dated 29.5.2017 is quashed and the respondents are directed to refix the pay of the applicant having regard to the above observation and consequently re-fix her pension, release difference of DCRG, commutation of pension, leave encashment based on such last pay drawn and also refund the amount of Rs.3,33,968/-, which was recovered from her leave encashment amount, with interest as admissible to GPF amount from the date of recovery till the date of actual realization of the said amount. The aforesaid exercise shall be completed within a period of three months from the date of receipt of a certified copy of this Order. There shall be no order as to costs.