Disposed

Union of India v. a Francis Royan

Karnataka HC9 Feb 2021WP/5557/2020

Case brief

AI extract

What is this about?

Karnataka High Court disposed of two connected writ petitions filed by the Union of India and BSNL challenging Central Administrative Tribunal orders. The court applied Supreme Court precedents clarifying that recovery from retired Class-III/IV employees is impermissible, quashing the recovery orders while upholding the erroneous pay fixation.

What did the court decide?

Writ petitions disposed of; recovery order quashed; direction to refund recovered amount within sixty days.

Union of India Vs a Francis Royan — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SATISH CHANDRA SHARMA AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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WRIT PETITION NO.5557 OF 2020 (S-CAT) CONNECTED WITH WRIT PETITION NO.13113 OF 2020 (S-CAT)

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IN W.P. 5557/2020:

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BETWEEN:

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UNION OF INDIA BY SECRETARY, MINISTRY OF I AND B., SHASTRI BHAVAN, NEW DELHI - 110 001.

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THE DIRECTOR S -II SECTION, AIR, AKASHVANI BHAVAN, SANSAD MARG, NEW DELHI - 110 001.

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DEPUTY DIRECTOR GENERAL (E) ALL INDIA RADIO, RAJ BHAVAN ROAD, BANGALORE - 560 001.

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DEPUTY DIRECTOR (P) PRASHAR BHARATHI SECRETARIAT, 2^ND FLOOR, PTI BUILDING, SANSAD MARG, NEW DELHI - 110 001.

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PAY AND ACCOUNTS OFFICER AIR, MINISTRY OF I & B., MYLAPORE, CHENNAI - 600 004. ... PETITIONERS (BY SRI D. BASAVARAJA, ADV.) AND: A. FRANCIS ROYAN AGED ABOUT 61 YEARS, S/O. ANTHU DASS, RETIRED AS LDC., A.I.R., RAJBHAVAN ROAD, BANGALORE – 01. RESIDING AT NO.405, NAVA ATHITHI, GRAND NO.19, HORAMAVU MAIN ROAD, BEHIND SBI, BANGALORE - 560 043. ... RESPONDENT (BY SRI KAMALESAN P., ADV.) * * *

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 18-1-2019 PASSED IN ORIGINAL APPLICATION NO.170/00399/2018 BY CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH (ANNEXURE-A) AND DECLARE THE SAME TO BE ILLEGAL, ONE SIDED, ARBITRARY AND CONTRARY TO THE LEGAL PRINCIPLES/OBJECTIONS LAID DOWN IN APEX COURT JUDGMENT DATED 29-7-2016 IN CIVIL APPEAL NO.3500 OF 2006 ANNEXURE-R7, AND ETC.

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IN W.P. 13113/2020:

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BETWEEN:

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BHARAT SANCHAR NIGAM LIMITED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE (PERSONNEL-II SECTION), BHARAT SANCHAR BHAWAN, 4^TH FLOOR, JANPATH, NEW DELHI – 110 001.

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THE CHIEF GENERAL MANAGER TELECOM KARNATAKA TELECOM CIRCLE, BSNL, NO.1, S.V. ROAD, HALASURU, BENGALURU – 560 008. 3. THE PRINCIPAL GENERAL MANAGER BSNL, BENGALURU TELECOM DISTRICT, RAJ BHAVAN ROAD, TELEPHONE HOUSE, BENGALURU – 560 001. ... PETITIONERS (BY SRI Y. HARIPRASAD, ADV.) AND: 1. SRI V. MUTHAPPA S/O. LATE VENKATAPPA, AGED ABOUT 64 YEARS, CHIEF SECTION SUPERVISOR (RETIRED), BENGALURU TELECOM DISTRICT, RESIDING AT NO.747, 17^TH ‘A’ CROSS, 37^TH MAIN, 6^TH PHASE, J.P. NAGAR, BENGALURU – 560 078. 2. THE CONTROLLER OF COMMUNICATION ACCOUNTS, DOT CELL, AMENITY BLOCK, 2^ND FLOOR, PALACE ROAD, BENGALURU – 560 001. ... RESPONDENTS (BY SRI P.A. KULKARNI, ADV., FOR R-1; SRI JAGADISH G. KUMBER, ADV., FOR R-2) * * *

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 25-2-2020 PASSED IN ORIGINAL APPLICATION NO.170/00922/2019 AT ANNEXURE-A PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL.

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THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, SATISH CHANDRA SHARMA, J., MADE THE FOLLOWING:

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O R D E R

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Since the controversy in both the writ petitions is similar, they are heard analogously and a common order is passed.

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Writ Petition No.5557 of 2020 is filed by Union of

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India along with its functionaries being aggrieved by the

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order dated 18-1-2019 passed by the Central Administrative Tribunal (for short, ‘the Tribunal’) in Original Application No.170/00399/2018.

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The facts of the case reveal that, the respondent before this Court was serving on the post of Lower Division Clerk and on account of erroneous pay fixation, he has withdrawn the emoluments more than his entitlement prior to his retirement. At the time of retirement, recovery was ordered against him and in those circumstances, he has approached the Tribunal and undisputedly, there was no misrepresentation on the part of the employee in the matter of pay fixation, nor he was

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at fault in the matter of pay fixation. The Tribunal relying upon its order passed in Original Application No.299 of 2018 decided on 30-7-2018 has quashed the recovery.

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Learned counsel for the respondent has straightaway draw the attention of this Court towards the judgment delivered by the Hon’ble Supreme Court in the case of STATE OF PUNJAB AND OTHERS v. RAFIQ MASIH (WHITE WASHER) in Civil Appeal No.11527 OF 2014 decided on 18-12-2014 and his contention is that, the respondent belongs to Group ‘C’ category and therefore, there cannot be any recovery after retirement.

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The Hon’ble Supreme Court, in paragraph Nos.12 and 13 of the aforesaid judgment, has held as under:

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“12. 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. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference,

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summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(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.

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(v) In any other case, where the Court arrives at the conclusion, that

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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.

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13. We are informed by the learned counsel representing the appellant-State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.”

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The Hon’ble Supreme Court has subsequently taken into account the judgment delivered in the case of Rafiq Masih ( supra ) while deciding another matter, i.e. in the case of HIGH COURT OF PUNJAB & HARYANA AND OTHERS v. JAGDEV SINGH in Civil Appeal No.3500 of 2006 decided on 29-7-2016 .

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In the aforesaid judgment, the Hon’ble Supreme

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Court in paragraph Nos.10 to 13 has held as under:

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“10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

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“(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(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.

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(iv) Recovery in cases where an employee has wrongfully been

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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.

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(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.”

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(emphasis supplied).

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11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

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12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

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13. The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs.”

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In the aforesaid case, it has been reiterated that there cannot be any recovery from employee belonging to Class-III and IV, that too, after retirement. In the light of the aforesaid judgment, this Court is of the considered opinion that the recovery order passed in respect of the respondent, in the peculiar facts and circumstances of case, has rightly been quashed by the Tribunal. However, as the employee’s pay fixation was erroneous, pay fixation is upheld and the recovery is quashed. The amount

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recovered by the employer be refunded to the employee in question within sixty days from today.

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At this juncture, it is brought to the notice of this Court that the amount has already refunded to the employee and therefore, it is made clear that the employee shall be entitled to all terminal dues as well as pension based upon the revised pay fixation, as pay fixation is not disputed by the employee.

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In Original Application No.170/00922/2019, again it is a case of Group ‘C’ employee. However, the only difference is that, he has received the emoluments on account of BCR Scheme. Even, if he has received the emoluments under BCR Scheme and the order granting the benefits of BCR has been withdrawn, the recovery cannot be done, after retirement in the light of the judgment of the Hon’ble Supreme Court in the case of Rafiq Masih ( supra ). It is made clear that the employee shall be entitled for retrial dues keeping in view the revised pay fixation.

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The direction given by the Tribunal to pay 15% interest in Original Application No.170/00922/2019 is hereby quashed. Pay fixation is upheld. Employee shall be entitled to all terminal dues as well as pension based upon the revised pay fixation. Sixty days time is granted to refund the amount recovered, if any, from the retired employee.

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Resultantly, the order passed by the Tribunal does not warrant interference. The writ petitions stand disposed of .

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Sd/JUDGE

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Sd/JUDGE

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kvk

Union of India v. a Francis Royan

Case brief

What is this about?

What did the court decide?

Union of India v. a Francis Royan

Case brief

What is this about?

What did the court decide?

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