Employer challenged a CAT order directing refund of Rs.5,38,179 recovered as excess pay from a retired stenographer's gratuity. The High Court held recovery at retirement was impermissible under the principles in State of Punjab v. Rafiq Masih and dismissed the writ petition.
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NC: 2024:KHC:12692-DB WP No. 6244 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K WRIT PETITION NO. 6244 OF 2024 (S-CAT)
BETWEEN:
Digitally signed by SUMATHY KANNAN Location: High Court of Karnataka
…PETITIONERS
(BY SRI. JAYAKARA SHETTY H - ADVOCATE)
NC: 2024:KHC:12692-DB WP No. 6244 of 2024
AND:
SHRI SHIBOBRATA NANDY S/O LATE SACHINDRA CH.NANDY AGED ABOUT 63 YEARS RETIRED AS STENOGRAPHER-I DOORDARSHAN KENDRA, J C NAGAR BANGALORE - 560 006 RESIDING AT: ELEGANT EMBASSY NORTH SHIVANAHALLI VILLAGE ROAD JAKKUR LAKE, YELAHANKA HOBLI BANGALORE NORTH BANGALORE 560064.
…RESPONDENT
THIS WRIT PETITION IS FILED UNDER SECTIONS 226 AND 227 OF THE CONSTITUTION OF INIDA, PRAYING TO QUASH THE ORDER DATED 29-8-2023 AT ANNEXURE-A MADE IN OA No. 170/00206/2022 BY THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE AND DISMISS THE SAME.
THIS WRIT PETITION, COMING ON FOR PRELILMINARY HEARING, THIS DAY, K. SOMASHEKAR .J., MADE THE FOLLOWING:
ORDER
Though this matter is slated for preliminary hearing, with the consent of the learned counsel for both the
parties, the same is taken up for final disposal.
for the petitioners and also the learned AGA for the respondent / State. Perused the impugned order rendered by the CAT including the material available on record.
Stenographer II was fixed under CCS RP Rules, 2008, as on 01.01.2006, after allowing the benefit of bunching in the pre-revised upgraded scale of Rs.6500-200-10500 and his basic pay was fixed at Rs.12,840 + Rs.4200 GP. Thereafter, the respondent’s pay was revised after grant of ACP in terms of letter dated 07.02.2013 issued by the Prasar Bharathi, All India Radio, Guwahati and his pay was further revised in accordance with the 6th CPC recommendations and in accordance with the Prasar Bharati Secretariat letter dated 18.06.2015. Again, his pay was refixed by an order dated 18.01.2018 by Doordarshan Kendra, Bengaluru at Rs.11,540 + Rs.4200/GP after 12 years. Thereafter, he retired from service on 31.12.2021, on attaining the age of superannuation.
However, his pension papers were returned by the Pay and Accounts Office, Doordarshan Kendra, Chennai on the plea that excess pay drawn should be recovered. Accordingly, the Prasar Bharati issued a memo dated 02.11.2021 directing to remit an amount of Rs.5,38,179/and forced the respondent to submit a declaration to
deduct the excess payment from his gratuity benefits. Since his Gratuity and other benefits were not settled, the respondent proceeded to pay the sum of Rs.5,38,179/-. Being aggrieved by the action of the petitioners, the respondent approached the Central Administrative Tribunal, Bangalore Bench, by filing O.A.No.170/00206/2022. The Central Administrative Tribunal, on hearing the said application, allowed the application and directed the respondents therein / petitioners herein, to refund the amount of Rs.5,38,179/to the applicant / respondent herein, within eight weeks
from the date of receipt of a copy of the said order. The present petition is filed by the respondents therein being aggrieved by the said order passed by the Central Administrative Tribunal.
Court in the case of State of Punjab & Ors vs. Rafiq Mashi (White Washer) reported in (2015) 4 SCC 334 . According to the learned counsel, on a careful perusal of the dictum laid down by the Hon'ble Apex Court in the aforesaid case, the same is applicable only in respect of recovery from employees belonging to Class III and Class IV service (or Group 'C' and Group 'D' service) but the respondent belongs the Group 'B' employee. Hence, the respondent cannot take shelter by virtue of the law laid down by the Hon'ble Apex Court in the aforesaid case. He would further contend that the Tribunal failed to appreciate that the respondent retired from service on 31.12.2021. However, the pay of the respondent was first upgraded in the pre-revised scale to Rs.6500-10500 and then revised under 6th CPC and his pay was refixed by an order dated 18.01.2018. The respondent was intimated about the excess payment made to him vide order dated 18.01.2018 itself and he was further informed vide memorandum dated 02.11.2021 to refund the excess payment, which he did not oblige till his retirement.
Hence, the law laid down by the Hon'ble Apex Court in Rafiq Masih's case is not applicable to the case of the respondent. He would also contend that the petitioners have taken steps to recover the excess amount but the respondent has not bothered to refund excess amount and hence, he committed default and now it is not open for the respondent to contend that the petitioners have not taken steps to recover the excess amount at the time of his retirement. He further submits that the Tribunal failed to appreciate these aspects of the matter. To buttress his argument, he relied on the judgment in the case of
Thomas Daniel vs. State of Kerala & Ors reported in 2022 LiveLaw (SC) 438 . Accordingly, he prays to issue a writ of certiorari or any other appropriate order or direction to quash the order dated 29.08.2023 made in Original Application No.170/00206/2022 by the Tribunal.
considered the submissions made by the learned counsel for the petitioners and the judgment relied upon by the learned counsel for the petitioners.
that "This is in continuation to this Office Memo dated 10.05.2019 and 23.07.2020 directing Shri Shibobrata Nandy, Stenographer Gr I to remit the excess paid salary of Rs.5,38,179/- due to the revised pay fixation dated 18.01.2018 as per the observations made by DG, AIR, New Delhi Audit report dated 26.08.2013. In this regard, it is to inform that the Pension papers in r/o. Shri Shibobrata Nandy, Stenographer Gr I, retiring on superannuation on 31.12.2021 has been returned by PAO, DDK, Chennai seeking the details of recovery made. Shri Shibobrata Nandy is hereby directed to remit the excess paid amount immediately or submit declaration to deduct the same from the retirement Gratuity to avoid further delay in processing the pension papers."
payment, as laid down by the Hon'ble Apex Court in the judgment relied by the learned counsel for the petitioner in the case of Thomas Daniel supra, since the petitioners failed to prove the said aspect that the petitioners received the excess amount with due knowledge.
passed by the impugned order by relying on the judgment of the Hon'ble Apex Court in the case of Rafiq Masih's
case supra wherein the Hon'ble Apex Court, in paragraph No.18, held as under:
"18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(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.
(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.
(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."
Hon'ble Apex Court to the case on hand, we are of the considered view that the dictum laid down by the Hon'ble Apex Court in the above case squarely applies to the case on hand and the Tribunal has rightly passed the impugned order, which does not call for any interference at the hands of this Court. Accordingly, we proceed to pass the following:
ORDER
The writ petition, being devoid of merits, is
dismissed .
Sd/JUDGE
Sd/JUDGE
KS
2 issues framed by the court
Whether recovery of excess salary of Rs.5,38,179 from a retired Group B employee's retiral benefits was permissible in law.
Whether the Tribunal erred in applying Rafiq Masih to direct refund of the recovered amount.
Colour shows how this judgement treated each authority
State of Punjab & Ors vs. Rafiq Mashi (White Washer)Applied¶11
(2015) 4 SCC 334 · Who else cites this
Thomas Daniel vs. State of Kerala & OrsDistinguished¶9
2022 LiveLaw (SC) 438
2 provisions across 1 enactments
The Union of India
Pay and Accounts Officer, Ministry of Information and Broadcasting, Doordarshan Bhavan, Chennai
Directorate General S-11 Section, Akashvani Bhavan, New Delhi
Head Office Prasar Bharathi Doordarshan Kendra, J C Nagar, Bangalore
Shri Shibobrata Nandy
K. Somashekar
Rajesh Rai K
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
