Dismissed

Union Of India v. Sri. G Suresh

Karnataka HC4 Nov 2024WP/12683/2024

Case brief

AI extract

What is this about?

Postal authorities sought to quash a CAT Bangalore order refunding sums recovered from a retired Senior Accounts Officer's pension. The High Court upheld the Tribunal's order, relying on Apex Court rulings barring post-retirement recovery of excess payments made without misrepresentation or fraud.

What did the court decide?

None granted to petitioners; Tribunal's order directing refund of Rs.82,939/- to the pensioner upheld, compliance within eight weeks failing which interest at 1-2% per month recoverable from erring of

Union Of India Vs Sri. G Suresh — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:44022-DB WP No. 12683 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2024 PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI WRIT PETITION NO. 12683 OF 2024 (S-CAT)

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BETWEEN:

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UNION OF INDIA, REPRSENTED BY SECRETARY DEPARTMENTOF POSTS(P A WING) DAK BHAVAN, NEW DELHI - 110 001.

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GENERAL MANAGER (PA & F) KARNATAKA CIRCLE, 3^RD FLOOR, BANGALORE GPO BULIDING, BANGALORE - 560 001.

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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ACCOUNTS OFFICER O/O CONTROLELER OF COMMUNICATION ACCOUNTS KARNATAKA CIRLCE, AMENITY BLOCK, PALACE ROAD, BANGALORE - 560 001.

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…PETITIONERS

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(BY SRI. JAYAKARA SHETTY H.,ADVOCATE)

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AND:

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SRI.G SURESH, S/O LATE SRI M K GANAPATHYAPA, AGED ABOUT 61 YEARS, RETIRED SENIOR ACCOUNTS OFFICER, (WAS WORKING AT O/O CONTROLLER OF COMMUNICAITON ACCUONTS) R/AT NO 25, PANCHAJANYA, NEAR M S RAMAIAH COLLEGE, KRUSHINAGAR, SOULANGA ROAD,SHIMOGA - 577 201.

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…RESPONDENT

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(BY SRI.S V PRAKASH.,ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS FROM THE HON’BLE CAT, BANGALORE WHICH ULTIMATELY RESULTED IN PASSING THE IMPUGNED ORDER ANNEXURE-A DATED 07.03.2024 MADE IN OA. No170/436/2022 BY THE HONBLE CAT BANGALORE AND B) ISSUE AN ORDER, DIRECTION WRIT IN THE NATURE OF WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE ORDER, DIRECTION WRIT QUASHING THE ORDER DATED 07.03.2024 ANNEXURE-A MADE IN OA No-170/436/2022 BY THE HONBLE CAT BANGALORE.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE C M JOSHI

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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The Central Government accompanied by officials, is knocking at the doors of Writ Court for assailing the Central Administrative Tribunal’s order dated 7.3.2024 whereby, respondent’s OA No-170/436/2022 having been favoured, inter alia the following direction has been issued:

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“b) The respondents are directed to refund the balance amount of Rs.82,939/- to the applicant, after adjusting the amount of Rs.1,14,326/- already paid to the applicant under Annexure A-14 towards 3^rd MACP, from

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3 - NC: 2024:KHC:44022-DB WP No. 12683 of 2024

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the recovered amount of Rs.1,97,265/- as under Annexure A-13. The said amount of Rs.82,939/shall be refunded to the applicant in an expedite manner in any event not later than eight weeks form the date of the receipt of a certified copy of this order.”

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Learned Sr. Panel Counsel appearing for the

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petitioners seeks to falter the impugned order arguing that the relief granted to the private respondent offends the Central Government’s Policy as promulgated in the MACP guidelines dated 19.05.2009 & 22.10.2019; the violation of Policy that eventually would result into a huge loss to the public exchequer, regard being had to numerical strength of similarly placed employees, has not been duly addressed by the Tribunal despite urgement. What was paid to the respondent was in excess of his entitlement; subsequent to the withdrawal of 3% fitment, he has been granted MACP-3 in a sum of Rs.1,14,326/-; therefore, the Tribunal could not have quashed the orders that were challenged before it. In support of his submission, he

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presses into service the Apex Court decision in STATE OF

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PUNJAB vs. RAFIQ MASIH (WHITE WASHER)¹ .

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Learned counsel appearing for the respondent

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per contra make submission in justification of the impugned order and the reasons on which it has been structured: Firstly, he disputes that his client had no entitlement to the monies in question; secondly, no recovery can be done post-retirement, even if entitlement is discounted and thirdly, the recovery being time barred, refund has to be made to the pensioner. In support of his contention, he banks upon the decision of the Apex Court in THOMAS DANIEL vs. STATE OF KERALA² .

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Having heard the learned counsel for the parties

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and having perused the Petition Papers, we decline indulgence in the matter for the following reasons:

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4.1. The Tribunal which is established under the provisions of the Administrative Tribunals Act, 1985,

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1 AIR 2015 SC 696

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2 AIR 2022 SC 2153

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comprises of a Judicial Member who is a retired High Court Judge and an Administrative Member who is a retired IAS officer, who have accumulated expertise in matters like this. The Tribunal exercises the jurisdiction akin to the one vested in this Court under Articles 226 & 227 of the Constitution of India vide L. CHANDRA KUMAR vs. UNION OF INDIA³ . That being the position, as a matter of course, indulgence of this court cannot be insisted upon even if there are some arguable errors in the orders entered after hearing of the parties. A strong case has to be made out by demonstrating errors apparent on the face of the record. This is the normative approach of the courts in treating the causes brought before them in writ jurisdiction.

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4.2. Admittedly, the respondent-employee has put in a long & spotless service of 35 years and demitted office on attaining the age of superannuation on 30.04.2022 as Senior Accounts Officer. The amount allegedly paid in

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3 AIR 1997 SC 1125

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excess was in the year 2013 and order of recovery is

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made from the pensioner only in the year 2022 i.e., 28.04.2022, to be precise. The Apex Court in RAFIQ supra, has observed as under:

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“… (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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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The same has been reiterated in THOMAS DANIEL supra.

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The above observations come to the rescue of the respondent-pensioner.

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4.3. The above apart, we are in agreement with the submission of learned Senior Advocate appearing for the respondent-pensioner that even if entitlement of his client to the amount in question is demonstrated to be absent,

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no recovery can be made when it is not the case of petitioners that the said payment was made to him because of some culpable conduct on his part. In this regard, what the Apex Court observed in THOMAS DANIEL supra at para 9 being relevant, is reproduced:

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“This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. This Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess”.

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Despite vehement submission of learned Panel Counsel, we are not convinced that the respondent-pensioner was not entitled to the payment made to him in respect of which recovery orders as challenged before the Tribunal were passed. The respondent had received three financial upgradations in his career that spanned beyond three decades: First was under TBOP Scheme on 1.1.2002 in the

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scale of Rs.4500-7000 (subsequently revised grade pay of

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Rs.2800/-); the second was under MACP II from 01.09.2008 in grade pay of Rs.4200/- and the third was on 27.3.2013 after promotion as AAO in grade pay of Rs.4800/-. In his OA No.426/2017, it was held that further financial upgradation under MACP III could not be granted since he has already obtained three financial upgradations. However, petitioners vide order dated 26.04.2021 have withdrawn the 3% pay fixation benefit at the time of his promotion as AAO and recovered Rs.1,97,265/- from the pensionary benefits vide order dated 3.5.2022. Strangely, they accorded MACP III benefit vide letter dated 7.10.2022 and released Rs.1,14,326/- in terms of letter dated 5.12.2022. This could not have been withdrawn as rightly observed by the Tribunal.

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4.4. The apprehension of learned Sr. Panel Counsel appearing for the petitioners that this decision would become a precedent for similarly placed others in the queue is assuaged by the learned Sr. Advocate appearing

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for the respondent-pensioner that the relief granted to him

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is in the peculiar circumstances of his case and that the Tribunal has not laid down any principle generally applicable to others. We agree with this version of the pensioner. In other words, suffice it to clarify that the relief granted to the respondent herein is case specific and that neither the Tribunal in its order has said nor this Court in its judgment is saying that there are any precedential elements in their decisions.

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4.5. As already mentioned above, the respondent having

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retired from his long & spotless service, is in the evening of life drawing periodic pension. The petitioners being the constitutionally ordained Welfare State are expected to treat the pensioners of the kind with soft gloves. It hardly needs to be stated that ours is not the East India Company of bygone era. The entities which answer the definition of ‘State’ u/a 12 of the Constitution of India have to conduct themselves as model employers, to say the least. Viewed from that angle, the orders of recovery

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from the pension that are set-aside by the Tribunal vide

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impugned order run counter to that idea. Much is not necessary to specify.

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In the above circumstances, this petition being devoid of merits, is liable to be and accordingly dismissed.

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The petitioners shall give effect to the impugned order of the Tribunal within an outer limit of eight weeks, failing which delay would carry interest at the rate of 1 per cent per mensem for the first two months and 2 per cent for the period next following and further that the interest component may be recovered personally from the erring officials concerned.

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Now, no costs.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(C M JOSHI) JUDGE

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Bsv/cbc List No.: 1 Sl No.: 35

Union Of India v. Sri. G Suresh

Case brief

What is this about?

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Union Of India v. Sri. G Suresh

Case brief

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