CAT Ahmedabad order dated 30.01.2024 in OA No 501/2017 with MA No184/2019Hon’ble Supreme Court in case of State of Punjab &; Ors. v/s/ Rafiq Manish (White Washer) etc., reported in AIR 2015 (4) SCC 334 in which the Hon’ble Supreme Court has held that no recovery from the retiral employee is permissible.

 CAT Ahmedabad order dated 30.01.2024 in OA No 501/2017 with MA No184/2019Hon’ble Supreme Court in case of State of Punjab &; Ors. v/s/ Rafiq Manish (White Washer) etc., reported in AIR 2015 (4) SCC 334 in which the Hon’ble Supreme Court has held that no recovery from the retiral employee is permissible.

 : :OA No.501/2017

CENTRAL ADMINISTRATIVE TRIBUNAL

AHMEDABAD BENCH

OA No.501/2017 with MA No.184/2019

Date of Reserved: 08.01.2024

Date of Pronouncement 31.01.2024

CORAM:

Hon’ble Dr. A.K. Dubey, Member (A)

Hon’ble Sh. Umesh Gajankush, Member (J)

Shri Ishwarbhai Panchal

S/o. Cholabhai Panchal

Aged about 62 years

Resident of: 1, Chehar society,

Behind Dhanlaxmi Tower,

Anand = 388001 ………………….. Applicant

(Through Advocate: MS. Vilas Purani)

VERSUS

1. Union of India

Notice to be served through

The Secretary,

Ministry of Communication

Department of telecommunication

New Delhi 110 001

2. Bharat Sanchar Nigam Limited

A Govt. of India Enterprise

(Notice to be served through

Principal General Manager,

Gujarat Circle, BSNL, CG Road,

Ahmedabad 380 009

3. Communication Accounts Office

Office of controller of Communication Accounts

Gujarat Telecom Region,

7 th Floor, Opp. Khanpur Post Office,

Khanpur, Ahmedabad 380001

4. General Manager, BSNL,

Telecom District,

Nadiad 0 387 002 …………………Respondents

(/Through Advocate : Ms. R.R. Patel)

ORDER

Per: Hon’ble Sh. Umesh Gajankush, Member (J)

The present OA has been filed by the applicant with the following reliefs:

“A(i) The decision of the respondent No.3 at Annexure A/1 order dated 25.03.2025 letter No: GJT/DOT Cell/15/3/16510 communicated to the applicant by the office of the respondent No.4 under Right to Information Act vide Forwarding letter dated 17 th August, 2016 letter No. Q4299/PEN/ICP/AO © Nadiad 16-1767

 A(ii) The decision of the respondent No.4 vide letter dated 22.07.2016 at Annexure A/2 whereby withdrawing the higher grade of pay granted to the applicant in the year 1999 and effecting recovery from the retiral dues and thereby fixing less pension,

A (iii) Communication of the respondent No.4 dated 11.07.2017 letter No. KTD/Legal/ OA1372017ICP2017-18/7 along with letter dated 01.06.2017 letter No:Q-4227/PENICP/17 of the accounts office Nadiad upholding the re-fixation and illegal recovery of the applicant rejecting the representations dated 28.07.2016 and 10.10.2016 of the applicant at Annexure A/3,

A(iv) The decision of respondent No.3 dated 28.07.2017 letter No. GJT/DOT-CELL/15/3/16510 at

Annexure A/4 reiterating the same decision after direction in OA No. 137/2017 as illegal, unjust arbitrary and  violative of Articles 14, 16 & and 21 of the constitution of India.

B. Be pleased to quash and set aside the impugned decision at Annexure A/1 to A/4 as above and direct the respondents to refund the amount of leave encashment which is illegally recovered from the retiral dues of the applicant and r-fix the pension of the applicant as if no impugned order were ever passed against the applicant.

C. Be pleased to declare th unilateral impugned decision of the respondents withdrawing the higher pay granted to the applicant from retrospective date i.e. 01.08.1999 adversely effecting the pay and retiral dues of the applicant without following due procedure of law as illegal, unjust, arbitrary and in violation of Articles 14 and 16 of the Constitution of India and be pleased to quash and set aside the same.

D. Be pleased to declare that the respondents have illegal fixed less pension of the applicant and direct the respondents to fix the same according to last pay drawn by the applicant and pay the amount of arrears accordingly along with the interest.

E. Be pleased to declare that the respondent No.2 had acted contrary to the settled principle of law by the Hon’ble Supreme Court and unilaterally decided to reduce pay of applicant and recovered the amount of Rs. 1,14,082/- from the retiral dues of the applicant illegally and set aside the same and direct the respondents Nos. 2 & 3 ;to restore pay position of applicant and refund the amount with interest and  further recover special cost and compensation from the erring officer and direct the respondents to continue the applicant to pay pensionary benefits as per the last pay drawn by the applicant.

F. Any other and further relief as this Hon’ble Tribunal may deem fit and proper to be granted.”

2. The brief facts of the case are that the applicant was appointed as Time Scale clerk w.e.f. 21.08.1979 by the Respondent Department and posted at Anand. On 21.08/1995, the applicant was granted the benefits of the First Time Bound Promotion on completion of 16 years w.e.f  21.08.1995 and was promoted as Sr. TOA in 1991. In October, 2000, th applicant was placed in the restructured cadre in the scale of Rs.50000-150-8000 w.e.f. 01.08.1999 at pay of Rs, 5300/-. Subsequently, as per the Memo dated October, 2000, the pay of the applicant was fixed at Rs,5450/- along with all similarly situated employees, after completion of seven years of service, the applicant was granted Second Time Bound Promotion on 01.10.2004. The applicant voluntarily retired from services w.e.f. 01.02.2015 and at That point of time, he was drawing Rs. 28,400/- as his basic pay. After retirement, when the applicant received retiral dues, it was learnt that his pension was fixed at lower rate and not as pr the last pay drawn by the applicant and further the applicant received payment of retirement benefits as compared to similarly placed employees who retired from the same office. Therefore, the applicant submitted representation dated 29.03.2016 to the respondent No.3 mentioning the fact that no recovery has been made from the retiral dues of his batch mates while he had received lesser retiral dues and even his pension was fixed at lower rate. The applicant sought information under RTI 2005 in respect of pay and drawn slips/particulars of his batch mates and similarly retired officials for the period from August, 1999 to January, 2015. Vide letter dated 30.06.2016, the applicant was Supplied with the information which clearly speaks that from 09.08.1999 till January 2015, the pay of the applicant as well as that of his batch mates were throughout the same. However, after his retirement, his pension has been fixed at lower rate and h received less amount of retiral dues as compared to similarly situated employees like R.K. Valan, J.R. Shah, C.C. Patel etc. Another representation dated 05.07.2016 was submitted to the respondent No.4 informing that he has received retirement dues with recovery of Rs. 1,14,082/-. The said amount has been directly recovered before the Payment of his retiral dues and no reason whatsoever was informed to him for recovery and less amount of pension. The respondent No.4 vide it is impugned order dated 22.07.2016 (Annexure A/2) supplied due and drawn statement of the applicant and calculation sheet showing the recovery of amount of Rs. 1,14,082/-. Thereafter, the representation dated 28.07.2016 was submitted, mentioning the fact that the recovery from his retiral dues was effected without giving any prior notice or order. Further, his basic pay was unilaterally reduced from Rs.5450/- to Rs.5300/- w.e.f. 01.08.1999. However, such a treatment was not given to similarly retired batch mate and therefore, such recovery and reduction of pay and pension was illegal, he contended.

3. Although no reply to the said representation was received from the respondent No.3 and therefore, application dated was filed under the RTI, 2005 demanding reason of recovery and less payment of pension, to which by the impugned order dated 17.08.2016, the respondent No.4 supplied a copy of order dated 25.03.2015, the letter issued by the respondent No.2 regarding the decision of recovery and refixation of pay of the applicant. As per the impugned order, the pay fixation granted to the applicant at Rs.5450/- w.e.f. 01.08.1999 was given wrongly and therefore, the pay of the pay of the applicant was reduced and recovery was effected from the retiral dues of the applicant. Another representation dated 10.10.2016 was submitted by the applicant stating the recovery of Rs. 1, 14,082/- from His retiral dues in the light of the letter dated 23.05/2015 was illegal and the same was don only the case of the applicant. However, the case of similarly situated batch mats of the applicant, no recovery has yet been done. Therefore, the decision of the respondents was discriminatory and without application of mind. It was averred that recovery/deduction from leave encashment was illegal. Further, it was submitted that pension of the applicant was wrongly fixed as it was not fixed as per last pay drawn. It was submitted that in January, 2015 Rs.28,400/- was last pay drawn by the applicant whereas while issuing PPO, last pay drawn was mentioned as Rs.27,700/-.

4. Earlier, the applicant had approached this Tribunal by filing OA No. 137/2017 which was disposed of vide order dated 22.03.2917. In spite of the aforesaid direction given by the Tribunal, no steps were taken by the respondents to comply with direction within a period of three months. Therefore, notice on contempt petition dated 10.07.2017 was issued to the respondents. Meanwhile, vide order dated 11.07.2017, the respondent No.4 informed the applicant to submit his reply within fifteen days against the decision of refixation. Accordingly,

vide letter dated 24.07.2017, the applicant submitted Detailed representation in the light of the settled legal position of that said excess recovery after 18 years was not permissible in law. However, without considering the aforesaid detailed representation, the respondent No.3 issued impugned decision dated 28.07.2017 (annexure A/4). Therefore, present OA is submitted challenging the aforesaid impugned order regarding unilateral decision of withdrawing higher pay and therefore effecting recovery from the retrial dues and fixing lesser pension which was ex-facie violative of Articles 14 & 16 of the Constitution.

5. After notice, the official respondent No.2 & 4 filed their reply justifying their action. It was stated that the impugned orders has been passed by the office of the respondent No.1 &and 3 and the office of the respondents Nos. 2 & and; 4 had only implemented it. As such refixation of pay and resulting recovery was effected in pursuance to the order issued by the respondent Nos. 1 & and; 3.

As such, the respondent BSNL was unnecessary made party to the present OA. In reply it is stated that the OA was required to be dismissed on the ground of delay and laches.

6.  On merit, it was submitted that pay of the applicant was fixed as Rs.5300/- as on 01.08.1999, in the pay scale of Rs.5000-150-8000 with eligible D.N.I. on 01.08.2000 to make it Rs.5450/- under Rule of F.R. 22(1)(a)(2). It was also submitted that as per the BSNL promotion policy, the applicant being Sr. TOA (G) was granted first financial up gradation on 01.10.2004 under NEPP and his pay was fixed at Rs.8925/- w.e.f. 01.08.2005. In response to it, the pay of the applicant for the month of the January, 2015 was fixed at Rs.28400/- was not disputed. In response to similarly situated employees, it was stated that pay of batch mates had been reduced and recovery had been ordered and the Pension Department was accordingly intimated for effecting recovery from their retrial benefits. It was submitted that during the entire service tenure of the applicant, he had not disclosed to the office of the respondents herein that his pay was wrongly fixed and he was in receipt of the salary in excess of the actual that he was entitled to. During finalization of the pension papers, this mistake was noticed by the respondent No.3 i.e. the Office of Controller of Communication accounts, Gujarat Telecom Region, Ahmedabad. It was submitted that since the applicant was from erstwhile Department of Telecom, the applicant’s pension papers were required to be send to the department for approval and in the said process, the said mistake was noticed. Accordingly last pay of the applicant has been mentioned as Rs.27,700/- in his PPO. It was in this background, that the impugned communication was issued.

7. M.A. No. 184/2019 was also filed for condonation of official respondents had taken the stand in respect of delay and latches.

8. We have heard learned counsel for the parties and perused material available on record.

9. Although in reply, the respondents have taken a stand that there has been delay in filing of the OA, the said objection is not sustainable in view of the fact that this is the second round of litigation. Earlier, the OA No. 137/2017 was filed by the applicant which was disposed of vide order dated 22.03.2017 and in pursuant to the direction given in the said OA, the respondents has issued letter dated 11.07.2017 (Annexure A/3) providing an opportunity to the applicant to represent against fixation. In pursuance of this Tribunal’s direction, a detailed representation was submitted. Whereupon the impugned communication dated 28.07/2017 (Annexure A/4) was issued; the present OA was submitted on 06.10.2017. Even otherwise, the case of applicant is that his pension has been wrongly fixed while issuing PPO and effect of which the applicant has got lesser pension every month according to the applicant and therefore, there is recurring cause of action. Therefore, in view of the said, MA No.184/2019 is allowed holding that there was no delay in filing of the original application.

10. So far as merit of the case is concerned, the facts on record show that in the earlier round oflitigation, the applicant has approached this Tribunal by filing of the OA No. 137/2017, which was disposed of vide order dated 22.03.2017 with the following direction:“ It is an admitted fact that the pay of the applicant was refixed from Rs.5450/- tp Rs.5300/- with effect from 01.08.1999 and on the basis of such refixation, his pension was fixed. The applicant is in receipt of all the retrial dues on the basis of the said refixation. On coming to know that the refixation and the consequential recovery is contrary to law, the applicant submitted two letters dated 28.07.2016 and 10.10.2016 respectively vide Annexure A/6 &; A/7, and pointed out the mistake committed by the respondents. It is incumbent upon the respondents authority to consider the same and in the process either allowe his request or ought to have passed a reasoned and speaking order for not acceding to his request so as to enable the applicant to know the grounds on which request was rejected. Therefore, in the fitness of facts and circumstances of the case, I am of the opinion that for the time being, interest of justice would be served, if the respondents are directed to consider the letter of the applicant dated 28.07/2016 and 10.10.2016 respectively vide Annexure A/6 and A/7, in accordance with law and in the process if it were to be found that the applicant is entitled for the request in his said two letters, then to grant the same and if not to pass a reasoned and speaking order so as to enable him to know the ground on which his pay was fixed from Rs.5450/- to Rs.5300/- and the basis on which the recovery was made. Accordingly ordered. The Competent authority shall complete the whole exercise as soon as possible but not later than three months from the date of receipt of a copy of this order.”

11. Thereafter, the Office of the respondents No.4 issued communication dated 11.07.2017 to the applicant providing an opportunity to represent against the refixation within a period of 15 days from the date of receipt of the order along with the facts/order pursuant to which, the applicant submitted detailed representation dated 24.07.2017 (Annexure A/12). However, no outcome of the said representation has been placed on record by the said authority. In fact, the Joint Controller of Communication Accounts, Gujarat Telecom Circle issued the impugned order dated 28.08.2017 (Annexure A/9) informing the applicant as follows: “After considering all the facts of the case, it is stated that the O/o Controller of Communication Accounts is a Pension Authorizing Office and authorized your Pension on the basis of pension fixed and sanctioned by the BSNL (O/c GMTD Nadiad) which is the Pension Sanctioning Authority. In view of this, it is informed that this office has correctly authorized the pension on basis of pension sanctioned by the O/o GMTD, BSNL, Nadiad.”

12. Although, a detailed representation dated 24.07.2017 has been submitted by the applicant, he has not been informed of any reason for upholding the action which is clear from impugned communication dated 28.07.2017. Therefore, the impugned order dated 28.07.2017 (Annexure A/4) is unsustainable in the eyes of law and hereby quashed. The competent authority is directed to consider the explanation submitted by the applicant in his representation dated 24.07.2017 (Annexure A/12) in respect of the fixation of his pay and pension and thereafter pass a reasoned and speaking order within a period of 60 days from the date of receipt of certified of this order .In case, the representation is allowed, refixation be made and arrears be paid within a period of 90 days thereafter.

13. So far action in respect of the recovery from the retirement benefits is concerned, the aforesaid aspect has already been considered by the Hon’ble Supreme Court in case of State of Punjab &; Ors. v/s/ Rafiq Manish (White Washer) etc., reported in AIR 2015 (4) SCC 334 in which the Hon’ble Supreme Court has held that no recovery from the retiral employee is permissible. Keeping in view of the aforesaid preposition of law, the recovery of Rs.114082/- is quashed and respondents are directed to refund the said amount with interest @ 06% per annum from the date of recovery till actual releasing/disbursement of the said payment.

14. In view of the above, Original Application is disposed of. There is no order as to costs.

Sd/ Sd/-

(UMESH GAJANKUSH) (A.K. DUBE)

Judicial Member AdministrativeCom