B.K. Shrivastava, Member J
1. This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 on 25.08.2022 for quashing the orders (annexure A-1 to annexure A-4) and for direction to release the withheld amount of ex-gratia Rs.14,365/- with the interest and also seeking the relief for issuing the revised P.P.O. upon the basis of basic pay Rs.46,190/- adding one increment as on 31.01.2020. The relief(s) claimed in para-8 of the O.A. are as under: -
“(i). That the order dated 30.06.2020 passed by Assistant controller of Communication Accounts (Pension) Meerut, order dated 06.01.2021 passed by Assistant Account Officer (Pension) Brapur Meerut, order dated 10.03.2021 passed by Account Officer (Pension) BSR and order dated 24.03.2021 passed by Account Officer (Pension) (Annexure no. 1, 2, 3 and 4) may be declare illegal and same is liable to be quashed and further the respondents be directed to release the ex-gratia Rs.14,365/- with interest at the rate admissible to the applicant till the date of actual payment thereof.
(ii). That the respondents be directed to take a decision in the matter of the applicant to revise the pension payment order and pay the actual payment of the ex-gratia and all retiral dues calculated on the basis of last basic pay drawn Rs.46,190 adding one increment as on 31.01.2020 alongwith interest the rate of admissible to applicant as early as possible.
(iii). Issue any other and further order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case but may have not been pleaded and is found just and proper to this Tribunal.
(iv). Cost of proceeding be awarded to the applicant.”
2. As per applicant’s case, he was working on the post of Sub Divisional Engineer, B.S.N.L. and was retired from service w.e.f. 31.01.2020 as per V.R. Scheme, 2019. The last pay certificate, dated 31.01.2020 annexure A-5, was issued to him in which last pay was shown as Rs.46,170, but in the pension payment order it is found that the last pay was treated as Rs,42,920/-. It is also submitted that the ex-gratia payment Rs.6,33,150/- was shown in the Form-16 of the applicant. The amount Rs.5,41,257/- plus Rs.91,893/- was released, but the amount of Rs.14,365/- is withheld without any sufficient reason. For this purpose, the applicant filed the representation, but the department did not revise the P.P.O. and also not released the withheld amount of ex-gratia. Therefore, the applicant filed this O.A.
3. The respondent No. 7 filed his counter affidavit on 18.10.2022 and the other respondents filed their counter affidavit on 15.07.2023. It is submitted by the respondents that the pay of applicant was recorded as Rs.11,350/- as on 01.10.2006 in the pay scale of Rs.9850-250-14600. He was given the up-gradation in the scale of Rs.11,875-30-17,275 as on 01.10.2006. The pay of applicant was fixed by the Unit, Bulandshahar for Rs. 12,775/- instead of Rs.11,875/-. Moreover, the fitment benefit as on 01.01.2007 should also be given on 11,875/- instead of Rs.12,775/-, which was found to be in adverse of the B.S.N.L. Executive Promotional Policy. On the basis of fitment benefit, the last pay comes to Rs.42,920/-and the P.P.O was issued on 14.06.2020 accordingly.
4. It is also stated by the respondents that the order dated 23.09.2016 issued by the Corporate Office, B.S.N.L, New Delhi should be followed in each case by the B.S.N.L. Unit because the checking of correct fixation is the responsibility of the B.S.N.L. which was not followed by the Unit. The relevant information was sent to the applicant vide office letter dated 10.03.2021 (annexure CR-3).
5. It is not disputed that the last basic pay was shown in the L.P.C. as Rs.46,190/- and the P.P.O. was issued at the basic pay of Rs.42,920/-. In this regard, the annexure A-1 was issued by the CCA-U.P. West, Meerut to the Accounts Officer. In the aforesaid letter, it was stated: -
“Kindly refer to the subject cited above. In this regard, it is to be intimated that after review the case it has found that the pay as on 31-12-2006 should be Rs.11875/- instead of Rs.12775/- as per BSNL Executive Promotion Policy. But the pay was fixed by the unit of Rs 12775/- which is adverse of BSNL Executive Promotion Policy. Hence, the pay as on 01.10.2019 should be fixed of Rs. 42920/- instead of Rs. 46170/-.
So, the PPO has been issued on the last pay i.e. Rs.42920/-
It is, therefore, requested kindly submit the justification of Rs. 46170/- as per norms, if any.”
5.1 Annexure A-2 was given to the applicant by the Assistant Accounts Officer (Pension) and the position was explained to the applicant, as under: -
5.2 Annexure A-3 was also issued to the applicant by the Accounts Officer (Pension) to the applicant in which the position was again explained, as under: -
5.3. Annexure A-4 was issued on 24.03.2021 to the applicant in which it was intimated that pay Rs.42,290/- was the correct pay as on 01.10.2006 after the First EPP in Rs.11,875/-. The aforesaid letter says: -
“With reference to your grievance in pension adalat, it is intimated that the correct pay as on 01-10-2006 after 1st EPP is Rs.11875/- and accordingly last pay Rs.42920/- is correct. Hence PPO was issued accordingly.”
6. The respondents submitted the circular dated 23.09.2016 issued by the Bharat Sanchar Nigam Limited to all concerned Telecom Circles, Districts, Regions etc. In this letter, the provision of ‘audit of the pay fixation’ has been provided. The letter says: -
“The Hon'ble Supreme Court in a judgement dated 18.12.2014 has summarised certain situations, wherein, the recovery of wrong/ excess payments made to employee beyond his entitlement is impermissible in law. To obviate the possibility of making wrong/excess payments to employees, it has been decided to make post audit of every pay fixation on account of promotion, upgradation and pay revision etc. of employees.
2. Accordingly, it is requested that the pay fixation carried out on account of promotion, upgradation and pay revision etc. shall invariably be post audited by an officer not below the rank of AGM of Finance Wing not connected with the channel of submission of the pay fixation related work.
3. Each Circle IFA shall send a certificate to DGM (Estt.), BSNL CO. by 31 st July of every year to the effect that all pay fixation cases of the Circle have been got post-audited during the previous financial year.”
7. In the light of aforesaid instruction when the matter of applicant was examined, at the time of his retirement, it was found that the wrong fixation was done. The respondents explained the position in their counter reply. In para-5 of the counter reply of respondent No. 7, the position has been explained, in detail. It is stated:
“5. That the contents of Paragraph 4.II of the original application as stated are incorrect hence not admitted and denied and in reply thereto it is stated that the pay of Shri Rajendra Singh (applicant) as recorded as 11350/- as on 1.10.2006 in the pay scale of 9850-250 14600. He was given up-gradation in the scale of 11875-30-17275 as on 1.10.2006. The pay of the applicant was fixed by the unit for Rs.12775/ instead of Rs.11875/-. Moreover, the fitment benefit as on 1.1.2007 should also be given on 11875/ instead of Rs. 12775/- which was found to be in adverse of the BSNL Executive Promotional Policy. On the basis of fitment benefit, the last pay comes to be Rs.42920/ and PPO was issued on 14.6.2020 accordingly. It is also stated that a letter was also written to Bulandshahar Unit for the justification of the pay of Rs 46170 on 30.6.2020 as per norms, if any. It is further stated that the order No 1-09/2016-PAT (BSNL) dated 23.9 2016 of Corporate Office, BSNL New Delhi should be followed in each case by BSNL Units because the checking of correct pay fixation is the responsibility of BSNL which was not followed by Unit. The copy of letter/order dated 30 6.2020 issued by competent authority and letter dated 23.9.2016 issued by the competent authority of BSNL Corporate Office, New Delhi in support of the said facts are being filed herewith and marked as ANNEXURE CR-1 AND CR-2 to this counter reply.”
8. The same details also mentioned by respondents No. 1 to 6 in para-3 of their counter affidavit. Therefore, it can be said that the wrong fixation was done which was corrected when the audit department examined the fixation. The Government or the Employer having the right to correct their mistake at any time whenever it comes into notice. In the present case, it was found that on 01.10.2006, the wrong fixation was done. The aforesaid mistake has been corrected by the respondents’ department.
9. In the aforesaid situation, it can be said that the annexure A-1 to annexure A-4 shows the correct position and there is no any ground for quashment of the aforesaid orders.
10. As far as recovery is concerned then, the applicant claimed the ex-gratia Rs.14,365/- which has been withheld by the department. The applicant draws attention towards the order dated 29.07.201 passed in Dinesh Kumar Verma v. Union of India (O.A. No. 201/2021) decided by C.A.T., Allahabad, the order dated 21.09.2021 passed in Bhagirath v. Union of India O.A. No. 359/2018, decided by C.A.T., Allahabad. In both cases, the relief against the recovery has been given by following the Judgment of Apex Court in the case of State of Punjab v. Rafiq Masih.
8. The Supreme Court in the case of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc., [(2015) 4 SCC 334] [S.C.] examined the validity of an order passed by the State to recover the monetary gains wrongly OA 1321 OF 2019 6 extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. The Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was observed in para 8:-
“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.”
Again in para 18 the following directions were given:-
“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 herein above, we may, as a ready reference, summarize the following few situations, wherein recoveries OA 1321 OF 2019 7 by the employers, would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class- IV service (or Group ‘C’ and Group ‘D’ service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(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.”
9. As far as the correction of mistake is concerned, in this case, some case laws should be mentioned. In the case of V. Gangaram vs.Regional Joint Director & Ors., AIR 1997(SC) 2776=1997 AIR (SCW)2754=1997(4) Supreme 446, the applicant was entitled to get only 02 increments while due to some mistake 04 increments were granted. The withdrawal of aforesaid increment was found justified. In Para No.6 of the aforesaid Judgment the Hon’ble Supreme Court says:-
“6. On the basis thereof, the appellant is entitled to only two additional increments, namely, one increment for M.A. and thereafter one for M.Ed. Under these circumstances, the authorities have wrongly applied the G.O. Ms. No. 928 and G.O. Ms. 266 Finance and Planning dated November 17, 1986. OA 1321 OF 2019 10 While issuing the notice, it was confined to the question of recovery of the arrears paid to him from the year 1985, the year in which he is eligible to acquire additional qualifications for holding the post of Lecturer. Thus, it could be seen that he is entitled to the revised scale of pay giving the additional increments on two qualifications, namely, M.A. and M.Ed. and, therefore, he is entitled to the computation of the scale of pay then applicable to him prior to the date of immediate month in which examination was conducted of the scale of pay plus two additional increments. He is not entitled to the four increments, as successively claimed. We hold that he is entitled only two increments, as indicated above. Since the Department itself has adopted above approach, we direct that arrears paid prior to 1985 are not to be recovered and excess amount from 1985 is liable to be recovered from the pension payable to the appellant. Instalment should be proportionately distributed so as not to cause any undue hardship.”
10. The aforesaid Judgment has been relied by the Calcutta High Court in the case re-fixation of pay of Shri Ghosh In vs. Unknown decided on 15th February, 2011(W.P.S.T. 261 of 2009). In the aforesaid case, it has been said that if the benefit has been granted by mistake, then it can be withdrawn. The Court relied upon the some Judgment of Hon’ble Supreme Court and observes as under:-
“Now another question to be discussed about legality and validity of the order recalling the earlier decision whereby the authority admittedly committed a mistake. Whether the petitioner can apply the estoppel principle assailing the order of 2007, by which earlier order granting pay protection was cancelled on the reasoning that there was mistake to fix the pay scale of Debdas Santra. It is the basic principle in the administrative law and in the service jurisprudence that if any mistake is committed by the official and benefit due to mistake is withdrawn or recalled, no estoppel principle is applicable. Long back in the case Rootkin vs. Kent County Council reported in (1981) 1 WLR 1186 (CA) the Bench consisting of Lawton Eveleigh L.J.J. and Sir Stenley Rees considered that aspect wherein under Education Act, 1944, a benefit in the nature of conveyance charge was granted wrongly to a student by holding that he was residing three miles away from the institution. Law permitted to grant such grant to the students OA 1321 OF 2019 11 who are staying more than three miles away so that they ma attend the school from their respective residence. Subsequently, it was found that distance from the school to the residence of that student was wrongly calculated and it was within three miles. Hence, the grant of conveyance allowance was recalled. It was challenged on ground of estoppel and answer given by the Court that estoppel principle had no applicability and mistake could be cured at any time by the administration. The Apex Court also considered this aspect regarding applicability of estoppel principle if there is any mistake by the administration to pass any order and it is recalled thereafter in the case V. Gangaram vs. Regional Joint Director reported in (1997) 6 SCC 139. It was held thereto that mistaken decision based on some facts which proved later has not to be properly considered, is not irreversible. In that case under the Pension Act, 1871, pension was granted wrongly on the basis of pay scale as fixed wrongly and such mistake was rectified by recalling the order of pay fixation and excess amount was directed to be recovered from the pension. On challenge the person concerned failed before the Apex Court. In the case O.K. Udayasankaran Ex-Servicemen LIC Employees Association vs. Union of India reported in (1996) 8 SCC 271, the Court held that after fitment of pay, due to mistake it can be reduced and recalled. If any decision is passed by mistake, whether irreversible; that question was answered with reference to a notice of department proceeding in the case Maharashtra State Seed Corp[oration Ltd. Vs. Haridas reported in (2006) 3 SSC 690, wherein a show cause notice of a departmental proceeding was recalled and it was again reissued. It became the subject matter of challenge. The Apex Court answered that mistaken decision could be withdrawn and irreversible principle has no applicability. Considering the aforesaid judgment of the Apex Court and the law in the field that when there is a mistake to pass any decision, if it is recalled, estoppel principle has not applicability and administration is permitted to withdraw it, we are of the view that the order of the Collector as passed earlier on 15th May 1998, granting pay protection in favour of the present petitioner by holding that Debdas Santra, a junior got higher pay scale, was rightly recalled on dealing with the factual foundation of the case whereby it was held that Debdas Santra was not eligible to enjoy the intermediate selection grade due to non-completion of ten years service in the rank and post of lower division clerk and as a consequence thereof the pay protection granted in favour of the writ petitioner was also recalled. The order applying aforesaid principle, cannot be said as illegal. Mistake was committed and that was withdrawn. Hence petitioner has no legal right.”
11. Therefore, in the light of aforesaid cases, it can be said that the department/respondent was having the authority to withdraw the benefit which was wrongly/mistakenly granted to the applicant.
12. As far as recovery is concerned then the case of Rafiq Masih (Supra) has been mentioned earlier. The applicant also drew attention towards the circular issued by Ministry of Railways (Railway Board) F.No.2016/F(E)II/6/3 dated 22.06.2016 RBE No.72/2016. By the aforesaid circular, the department drew attention towards the memorandum F.No.18/03/2005-Estt. (Pay-I) dated 02nd March, 2016 RBE No.72/2016. In the aforesaid circular, the attention has been drawn towards the Rafiq Masih case.”
13. Therefore, looking to the aforesaid discussion, it can be said that as per Rafiq Masih’s case, the recovery cannot be made from the applicant because he was not responsible for furnishing any wrong information or any misrepresentation in reference to the fixation. The mistake was committed by the department itself. The department having right to correct the mistake at any stage, but cannot recovered the amount if the case comes under the purview of Rafiq Masih’s case.
14. Therefore, looking to the aforesaid discussion, the O.A. is partly allowed. It is ordered that withheld amount of ex-gratia payment of Rs.14,365/- be released in favour of the applicant within the period of three months from the date of receiving the certified copy of this order. The respondents will also liable for payment of the simple interest at the rate of 6% per annum from the date of filing this O.A. on 25.08.2022 to the date of actual payment. The aforesaid interest will also be paid within the period of three months from the date of receiving the certified copy of this order.
