Rajwant Sandhu, Member (A).
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking to quash the order dated 19.12.2014 (Annexure A-1) vide which respondent no.3 stopped the Children Education Allowance, Family Planning Allowance and LTC being given to the applicant in terms of DOPT OM dated 02.09.2008 (Annexure A-2) read with order dated 06.02.2015 (Annexure A-3) and 19.03.2015 (Annexure A-4) vide which the applicant has been directed to deposit an amount of Rs.1,08,284 paid to her towards Children Education Allowance, Family Planning Allowance, LTC with further direction to debit 172 days Child Care Leave availed by her for her second born child from her Earned Leave account within a specified time frame as given in orders.
2. Interim relief was sought seeking to restrain the respondents from making any recovery from the applicant. When the matter was considered for admission on 24.03.2015 recovery in pursuance to impugned order was stayed and this position continues till date.
3. Averment has been made in the OA that the applicant joined respondent Department as Junior Stenographer on 15.07.1987 and she was upgraded as Personal Assistant in December 1998. The applicant got married on 31.01.1990 and was blessed with a daughter on 25.12.1991 namely Divya Chanda. The applicant availed maternity leave for 3 months at that time. She was blessed with second child in 1993 and also availed 3 months maternity leave on this account. The second child of the applicant was adopted by her sister as her sister did not have any children. The applicant was blessed with third child namely Raghav Chanda on 01.08.1999 and she availed commuted and earned leave at that time. It is further stated that the applicant availed Child Care Allowance for two children as mentioned in the notification no.12011/03/2008-Estt.(Allowance) dated 02.09.2008 (Annexure A-2). She never took any benefit of CCL/CEA for 2nd child throughout her service as she was no more her child. The applicant was however served with memo dated 16.05.2014 (Annexure A-5) whereby the respondents asked her to clarify the following points:-
'iii) On scrutiny of records it has been observed that she is having more than two children for which the benefits drawn are not allowed. Reason for availing miscellaneous benefits.
iv) Explain the circumstances under which the miscellaneous benefits are being drawn for such a long time.'
The applicant submitted detailed reply dated 21.05.2014 (Annexure A-6 colly.) along with supporting documents as well as affidavits of her sister and her sisters husband to the effect that they had adopted her second born child. In the school records etc. of the second born child they have been reflected as parents.
4. Subsequently, memo dated 03.06.2014 (Annexure A-7) was served upon the applicant by the respondents as to why disciplinary action should not be initiated against her for not informing the controlling authority in time and for drawing miscellaneous benefits for which she was not entitled. The applicant submitted her reply on 13.06.2014 (Annexure A-9). The respondents referred the matter to Deputy Secretary (AS), ICAR, Krishi Bhawan, New Delhi for clarification and the same was received on 12.09.2014 (Annexure A-11). Office order dated 9.12.2014 (Annexure A-1) was then issued vide which the benefits of Child Education Allowance (CEA), LTC and other miscellaneous benefits being claimed by the applicant for third child were stopped with immediate effect and CCL availed by her was ordered to be adjusted against earned leave account. Further direction was given for recovery of these miscellaneous benefit. Thereafter, the respondents passed order dated 06.02.2015 vide which respondents directed the applicant to deposit amount of Rs.1,08,284/- within 15 days. The applicant submitted detailed representation in this regard but she was directed to deposit the recovery amount within 7 days failing which disciplinary action would be initiated against her. Hence this O.A.
5. In the grounds for relief it has, inter alia, been stated as follows:-
'i) The applicant has only two children with her and the child given in adoption to her sister from time of birth cannot be construed to be hers. There was never any misrepresentation or inducement by the applicant for grant of the benefits sought to be recovered and no recovery as such is liable to be effected in terms of settled law and the allowances with regard to her children are liable to be continued to be paid as earlier, being covered under the instructions on the subject. Even the instructions dated 13.11.2009 do not support the plea of the respondents as the applicant is only parent to two children and a clarification cannot be construed in a manner that it takes away the benefit being given by the OM itself more specifically when it is a beneficial legislation.
ii) In the case of Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department & Ors., decided on 17.04.2014, the Honble Supreme Court of India while relying upon Govt. order bearing no.S-3-35/10-07-101(6)/2005, dated 16.01.2007 has held that recovery of any amount from salary paid in pursuance of some mistake committed cannot be effected. In the present case the respondents are trying to illegally effect recovery while snatching away the genuine benefits being given to the applicant.
iii) In the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) 2015 (1) SCT, 195 the Honble Supreme Court held that the respondents cannot make recovery from employees to whom excess payment has been made for a period of more than five years before order of recovery and in case like of present applicant where recovery will be iniquitous, harsh and arbitrary as it will outweigh the equitable balance of the employers right to recover.
iv) LTC for Rs.18914 claimed in respect of third born child is being recovered when it is clearly written in office order dated 19.12.2014 that 'For LTC, the Governments wife or husband as the case may be and two surviving unmarried children or step children wholly dependent on the Govt. servant.' . Nowhere it is written that LTC may be given to the eldest two children. Even for CEA it is clearly stated in DoPT OM dated 02.09.2008 that the CEA can be availed for upto a maximum of two children.'
6. In the written statement filed on behalf of the respondents it has been stated that the order dated 19.12.2014 (Annexure A-1) had been passed in accordance with rules and guidelines and claim of the applicant that she has given away her second child in adoption could not be accepted as no deed of adoption had been produced nor can any child be taken and given in adoption in the manner sought to be projected by the applicant. It is further stated that CCL can be granted to women employees having minor children of under 18 years, for a maximum period of 2 years (i.e. 730 days) during their entire service, for taking care of upto two eldest surviving children only. The applicant concealed the fact that she had three children and had availed benefit of CEA for the third child, which was not admissible. She had also availed family planning allowance which was again not admissible keeping in view the fact that she had three children. It is also mentioned that the applicant had submitted representation dated 11.02.2015 making allegations against 7 employees of the office of the respondents regarding drawal of CEA and LTC in the same manner as the applicant. On verification it had been found that the applicant was the only employee who had availed CCL for taking caring of her third child and also drawn family planning allowance despite having three surviving children.
7. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant narrated the background of the matter. He stated that the applicant had not availed maternity leave for the birth of the third child. As per documents produced by the applicant, her second child had been given in adoption to her sister and this child was being shown as the child of the family of her sister in the school records, Adhaar etc. Learned counsel also referred to clarification regarding reimbursement of CEA for the third child which was only issued on 13.11.2009 and this could not be relegated to the date of OM dated 02.09.2008 through which the government has announced CEA for two children. In this regard, he also referred to judgment dated 17.01.2014 in O.A. No.941/CH/2012 titled 'Shiv Narain Vs. NVS and Ors.'. Learned counsel also referred to judgment of the Apex Court in 'State of Punjab & Ors. Vs. Rafiq Masih (White Washer) etc.' in Civil Appeal No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012), decided on 18.12.2014, reported 2015 (1) SCT 195, wherein para 3 and 5 reads as follows:-
'iii) Recovery from employees, when excess payment has been made for a period in excess of five years before the order of recovery is issued.
v) In another 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 employers right to recover.'
and it was clear that recovery could not be made from employees in these circumstances.
8. Learned counsel for the respondents stated that claim of the applicant that her second child had been adopted by her sister was not established. The applicant had taken advantage of drawing CEA, family planning allowance and CCL for the third child by concealing the fact that there was a second child also and Raghav Chanda on whose account the applicant availed these benefits was the third child born to the applicant. Learned counsel stated that judgment in Shiv Narain (Supra) was distinguishable on facts as there was no misrepresentation on the part of the applicant in that O.A. He also cited judgment in 'S.S. Grewal Vs. State of Punjab & Ors.' reported 1993 (4) RSJ, 42, wherein it was held as follows:-
'Held from a perusal of the letter dated April 8, 1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions contained in the earlier letter dated May 5, 1975. Since the said letter dated April 8, 1980 is only clarificatory in nature, there is no question of its having an operation independent of the instructions contained in the letter dated May 5, 1975 and the clarifications contained in the letter dated April 8, 1980 have to be read as a part of the instructions contained in the earlier letter dated May 5, 1975. In this context it may be stated that according to the principles of statutory construction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective.'
Learned counsel stated that although clarification regarding CEA had been issued on 13.11.2009 it would be effective from the date of earlier OM dated 02.09.2008 and the applicant was liable to refund full amount of CEA drawn by her for the third child Raghav Chanda. Similarly the applicant was required to reimburse amount of family planning allowance drawn by her and CCL availed by her for the third child also had to be adjusted against earned leave due to her. Hence there was no defect in the impugned orders dated 19.12.2014 (Annexure A-1) and 06.02.2015 (Annexure A-3).
9. We have given our careful consideration to the matter. From the material on record, it is established that the applicant has been availing CEA for h
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er third surviving child Raghav Chanda and this was not admissible to her keeping in view the content of OM dated 02.09.2008 and subsequent OM dated 13.11.2009 S.S. Grewal (supra) is relevant in this regard. The applicant has also wrongly availed family planning allowance since she had borne three children, all of whom survived and was not entitled to this allowance as per the rules in this regard. So far as LTC reimbursement is concerned, a liberal view of the mater can be taken as there is no restriction in the rules regarding the same that LTC can be availed only for 2 eldest surviving children. Since LTC had been availed by the applicant for 2 children, the amount ordered to be recovered on this account need not be so recovered. Also CCL of 172 days availed by the applicant ostensibly for caring for her third child, Raghav Chanda, is held to be inadmissible and the respondents have rightly directed that the same be adjusted against her earned leave account. 10. We also observe that the judgment in Rafiq Masih (supra) is not applicable in the present case since it is the applicant who indulged in misrepresentation and was responsible for drawing allowances that she was not entitled to as per the rules. 11. The O.A. is disposed of with observations as above. No costs.