Union of India Vs Arindam Ghosh

This writ petition has been filed by the Union of India inter alia, seeking to quash the impugned order dated 23.07.2024 under Annexure-9 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack and to uphold the order dated 10.08.2020 passed by the Senior Superintendent (Postal), RMS "N" Division, Cuttack in rejecting the representation of the opposite party.

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The brief facts of the case is as follows:

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The opposite party Arindam Ghosh was initially appointed as Sorting Assistant with effect from 09.03.2011 and after rendering regular service for a period of five years in the said post, he was directed to work against the post of Inspector (IP), N-1^st Sub-Division, Cuttack on officiating arrangement basis for a period not exceeding 179 days. Thereafter, the opposite party no.1 continued to render service on officiating arrangement against the vacant post of

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Inspector (IP), N-1^st Sub-Division, Cuttack 27.10.2017 till 23.04.2018 in the 1^st spell and thereafter, he was allowed to work in the same post from 14.08.2018 to 09.12.2018 during the 2^nd spell and from 13.12.2018 to 09.06.2019 for the 3^rd spell.

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It is further case of the opposite party no.1 that while he was working in the said post on officiating arrangement basis during the 2^nd spell, he submitted a representation to the SSRM ‘N’ Division, Cuttack to issue necessary orders to enhance his officiating pay for his 1^st spell. The said representation of the opposite party no.1 was considered by the opposite parties with a condition that in case objection arises in future, he has to refund the same and he also made a declaration to that effect. Pursuant to such declaration, the Head Record Officer directed to pay the minimum entry grade pay of Inspector of Posts cadre to the opposite party keeping in view his declaration.

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The Department of Personnel & Training, vide O.M. No. 1/4/207-Estt.(Pay-I) dated 28.02.2019 intimated that the pay and allowances of the opposite party under FR-35 shall be restricted in a manner so that the increase in the basic pay of the post held by the Government servant prior to the officiating appointment shall not exceed 12.5% subject to a maximum of Rs 6700/- per month and any increase in excess of 12.5% of the basic pay with further ceiling of Rs 6700/- per month shall be treated as substantial increase for the purpose of FR-35. Pursuant to such office memorandum, the HRO ‘N’ Division, Cuttack vide letter dated 01.04.2019 communicated the opposite party regarding excess payment of Rs.1,42,496/- and also requested him to credit the same in

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shape of unclassified receipt, otherwise, the amount will be recovered in lump sum from April, 2019.

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That apart, the Internal Audit team while conducting inspection of the office of HRO ‘N’ Division, Cuttack also noticed some major irregularities vide their report dated 21.05.2020. It is ascertained from such audit that the Opp. Party has claimed DA during his officiating arrangement to the cadre of Inspector of Posts even though the same has been restricted under FR 35. As per Rule FR-35 the opposite party is in level -4 and was officiating in level-7, hence his pay is restricted to Level-4 in pay matrix. Therefore, he was entitled to DA on tour @ 500/- instead of Rs.800/- per day and has been sanctioned and paid to him accordingly considering entitlement as per Level-7. Accordingly, such report on Audit objection of excess payment of DA on tour to Opposite Party amounting to Rs. 13,400/-.

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Against such recovery, the opposite party made a representation to the authorities, which was rejected vide office memo dated 10.08.2020 under Annexure-6. Challenging such rejection order, the opposite party filed O.A. No. 323 of 2020 before the learned Central Administrative Tribunal, Cuttack Bench, Cuttack, which was disposed of vide order dated 23.03.2021 directing the petitioners to pass a reasoned and speaking order within four weeks.

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Pursuant to such order, again the petitioner no.2 rejected the representation of the opposite party. Against such rejection of the representation, the opposite party filed O.A. No. 70 of 2022 before Central Administrative Tribunal, Cuttack Bench, Cuttack and the learned Tribunal by the impugned order dated 23.07.2024 quashed the order of

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recovery dated 01.04.2019, orders of rejection dated 10.08.2020 and 22.06.2021 and observed that the opposite party is entitled to the officiating pay as he was granted earlier for the period he actually officiated in the post of Inspector of Posts. Against such order, the Union of India has filed this writ petition.

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In the case of State of Punjab -Vrs.- Rafiq Masih reported in (2015) 4 Supreme Court Cases 334 has held that as follows:-

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"In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee."

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The aforesaid principle has been reiterated by this Court in the case of Union of India -Vrs.- Md.Ahmed Baig reported in 2024(I) ILR- CUT 739 and dismissed the writ petition filed by the Union of India.

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In the case of Bhusawal Municipal Council -Vrs.Nivrutti Ramchandra Phalak and others reported in (2015) 14 Supreme Court Cases 327 , the Hon’ble

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Supreme Court in para 16 has held as follows:

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“The judicial process of the Court cannot subvert justice for the reason that the Court exercises its jurisdiction only in furtherance of justice. The State/authority often drags poor uprooted claimants even for payment of a paltry amount upto this Court, wasting the public money in such luxury litigation without realising that poor citizens cannot afford the exorbitant costs of litigation and, unfortunately, no superior officer of the State is accountable for such unreasonable conduct. It would be apt to quote the well known words of Justice Brennan:

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Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.

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In the case in hand, as per the petitioners, the excess amount paid to the opposite party is to the tune of Rs.1,42,496/towards officiating pay and Rs.13,400/towards excess payment of D.A. on tour and if both the amounts are taken together, the same comes to Rs.1,55,896/- and for recovery of the such meager amount from a poor employee working in the Postal Department, the Union of India is fighting the litigation since 2020.

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Having heard the learned counsel for the petitioners and in view of the reasoning recorded by the learned Tribunal

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and the ratio decided as aforesaid, we find no infirmity or illegality in the impugned order.

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Accordingly, the writ petition being devoid of merits, stands dismissed.

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( S.K. Sahoo)

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(S.S. Mishra)