Surendra Mohan vs Union Of India & Ors

Tarun Shridhar, Member (A)

The applicant in the present Original Application, seeks the following reliefs:-

“(i) To declare the impugned letter dated 18.09.2015 declaring as wrong the stepping up granted to the respondent vide Order dated 21.12.2012 as illegal, mala fide, discriminatory and baseless.

(ii) To direct the respondents to accord stepping up of the pay of the applicant at par with that of his junior Shri Girwar Singh from the date he started getting more pay than the applicant, with all consequential benefits.

(iii) To direct the respondents to refund the amount of Rs.1,26,558/- recovered from the applicant on the basis of the impugned letter dated 18.09.2015.

(iv) To direct the respondents to re-fix Pension on the basis of stepping up of pay and issue Revised PPO.

(v) To direct the respondents to pay all the pensioinary benefits including leave encashment to the applicant on the basis of the stepped up pay in a time bound manner.

(vi) To direct the respondents to pay interest 12% on abovementioned payments from the date of his superannuation till the payment is actually made.

(vii) To direct the respondents to take appropriate disciplinary/administrative action against the defaulting employees for their acts of commission and omission leading to the avoidable harassment of a retired employee.

(viii) To allow the O.A. with costs.

(ix) Pass such other direct or directions order or orders as this Hon’ble Tribunal may deem fit and proper to meet the ends of justice.”

Learned counsel for the applicant submits that the issue involved in the present OA is the financial entitlement of a retired employee and prays for an early adjudication. The applicant is aggrieved by an order dated 18.09.2015 by which the benefits of one increment allowed to him on 01.01.2006, has been withdrawn as not admissible. No other reasons have been mentioned while withdrawing the said increment at a belated stage, that too during the finalization of the pension. The documents on record do not even indicate whether the applicant was to put any notice before issuing such withdrawal order. The said order being arbitrary and unilateral, the applicant agitates the same, subvmits the counsel.

Learned counsel further submits that in case, even if it is to be presumed that increment was erroneously awarded to the applicant, the responsibility for the same totally lies upon the shoulder of the respondents and the applicant cannot be made to pay for this mistake at such a belated stage. Moreover, withdrawal of the increment which the applicant enjoyed for nine continuous years, has resulted in reduction of salary and such a reduction in effect amount to a penalty as it is one of the major penalties listed in the CCS (CCA) Rules. Such a penalty could not have been resorted to without putting the applicant to notice. Pleadings on the file do not indicate that any such procedure was followed.

Mr. Hanu Bhaskar, learned counsel representing the Union of India submits as a preliminary objection that the present Original Application is barred by limitation. The impugned order is dated 18.09.2015, however, the issue of wrong fixation of pay pertains to the year 2006 and at no stage did the applicant pray for the relief he is seeking now by a way of representation before the competent authority. Clarifying, he submits that the issue as agitated by the applicant is not stepping up of pay but wrong fixation.

Drawing attention to the averments made in para 2 of the counter reply, the learned counsel argues that this wrong fixation cannot be attributed to the department since the applicant had made a representation for claiming a benefit of pay fixation for which he was not entitled. It was a bonafide decision taken despite the fact that the applicant, as required, had not exercised any option under FR22(1)(a)(i) which was a condition precedent for deciding the issue of fixation of pay. Therefore, the applicant too needs to share the responsibility of wrong fixation of which he was a beneficiary.

Learned counsel further argues that there was no cause or occasion before the respondents to review such wrong fixation till the period of retirement of the applicant approached, when his pension and other retiral benefits were to be determined. Once this erroneous fixation of pay came to the notice, the respondents were obliged to correct this apparent error since money of public exchequer was involved. He submits that the order dated 18.09.2015 impugned in this OA categorically states that the pay was wrongly fixed in reference to an OM dated 19.03.2012 and the benefit of an additional increment was allowed to the applicant which was not admissible to him. This had resulted in overpayment which was liable to be recovered from him.

Learned counsel also strongly contests the reliefs sought for by the applicant in the OA and points out that the rules determining the procedure of Central Administrative Tribunal do not allow the applicant to seek multiple reliefs in a single OA. In the instant case, the applicant is not only seeking the quashing of the orders, he is also seeking multiple directions such as stepping up of pay at par with one Shri Girwar Singh, refund of an amount, refixation of pension, payment of pensionary benefits including leave encashment on the basis of stepping up of pay with interest @ 12%, disciplinary proceedings and administrative action against the respondents. Such multiple reliefs being beyond the scope of the jurisdiction and in contravention of the procedure cannot be allowed.

Learned counsel also draws attention to the specific and categorical averments made in paragraphs 5, 6 & 7 of the counter reply submitting that he has drawn a factual matrix therein. The applicant was appointed on ad hoc basis as Superintendent and accordingly he was not eligible to opt for fixation of pay under rules FR22(1)(a)(i). It was expected that he was aware of his ineligibility but still he made the representation only on the limited ground that one Shri Girwar Singh had got the benefit after his regular promotion, so he too was entitled to pay fixation under FR22(1)(a)(i). However, he never opted for the same. Accordingly, he himself is aware that benefit of one additional increment was given to him erroneously and in contravention of the rules.

Learned counsel for the applicant contesting the arguments of the learned counsel for the respondents submits that no allegation of misrepresentation can be levelled against the applicant as there is nothing on record to prove the same.

We have heard the arguments put forth by the learned counsel for the parties and also gone through the pleadings on records.

It is not in dispute that the increment, which has been withdrawn vide the impugned order dated 18.09.2015, was allowed to the applicant on 01.01.2006. Accordingly, at least the respondents should have offered an explanation to the applicant as to why the benefit extended in his favour was being withdrawn after a lapse of more than 9 years. Neither was any notice issued to the applicant nor any reasons have been adduced whatsoever for passing the impugned order dated 18.09.2015. Therefore, on the face of it, the action of the respondents is unilateral. We would not give much credence to the objection of the respondents with respect to the issue of limitation by way of withdrawing the increment already granted and which was being enjoyed for more than 9 years. The respondents cannot raise the issue of limitation as the loss faced by the applicant is a recurring one. How could applicant share responsibility for wrong fixation as argued by the respondents, as what the applicant had preferred was merely what he considered was his claim/entitlement. Certainly, there is no allegation of any falsification or misrepresentation against the applicant. Moreover, we cannot sustain the action of the respondents to resort to this action at such a belated stage, that too at the time of the retirement of the applicant.

In view of what has been stated above and considering that elementary principles of natural justice have been violated, the present Original Application is allowed only to the extent that the impugned order dated 18.09.2015 is quashed and set aside with a further direction to the respondents that pay of the applicant as fixed on 01.01.2006 shall be restored forthwith. Any recovery made from the applicant pursuant to the impugned order, shall be refunded to him immediately, in no case later than six weeks from the date of receipt of a copy of this order. If the said recovery is refunded within this period, the applicant shall not be entitled to any interest. However, in case of delay in making this refund, the same shall be made along with interest at the rate applicable upon the GPF as on date. Consequently, the retiral benefits, including, but not restricted to, pension shall also be reviewed and sanctioned again; the arrears of the same, too, shall be paid within this period of six weeks, failing which they too shall carry interest at the rate applicable on GPF. The OA is allowed against the background of these directions.