w w w . L a w y e r S e r v i c e s . i n



Narapati Kalita v/s The Union of India, Rep. by the Secretary to the Govenrment of India, Ministry of Communication, New Delhi & Others


Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

Company & Directors' Information:- T C COMMUNICATION PRIVATE LIMITED [Active] CIN = U74999DL2000PTC105354

Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

Company & Directors' Information:- P. K. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92141DL1984PTC017748

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- K AND D COMMUNICATION LIMITED [Active] CIN = U64120GJ1997PLC031879

Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

Company & Directors' Information:- M K COMMUNICATION PVT LTD [Strike Off] CIN = U72900HP2006PTC030292

Company & Directors' Information:- H V COMMUNICATION PRIVATE LIMITED [Active] CIN = U52602DL2009PTC193309

Company & Directors' Information:- A AND A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U92132DL2001PTC110975

Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

Company & Directors' Information:- N S N COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100KA2014PTC073757

Company & Directors' Information:- N A COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74120DL2008PTC182901

Company & Directors' Information:- G & D COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64200MP2007PTC019633

    Original Application No. 040/00260 of 2018

    Decided On, 07 August 2018

    At, Central Administrative Tribunal Guwahati Bench Guwahati

    By, THE HONOURABLE MRS. MANJULA DAS
    By, JUDICIAL MEMBER & THE HONOURABLE MR. N. NEIHSIAL
    By, ADMINISTRATIVE MEMBER

    For the Applicant: N. Bora, H. Majumdar, Advocates. For the Respondents: B.C. Pathak, Advocate.



Judgment Text

Manjula Das, Judicial Member.

1. Being aggrieved, the applicant herein approached before this Tribunal under Section 19 of the Administrative Tribunal Act, 1985 with the following reliefs:

'8. (1) Set aside and quashed the impugned order issued vide letter No. Tz/ Admn/E-52/Superannuation/NE/2018-19/132 dated 11.06.2018 issued by the Sub-Divisional Engineer, (HR & Administration), office of the General Manager, Telecom District, BSNL, Tezpur.

8.2 Set aside and quashed the impugned order issued vide letter No. Tz-Admn/QK-65/PF/NPK/2018-19/31 dated 24.07.2018 issued by, the Sub-Divisional Engineer, (HR & Administration), office of the General Manager, Telecom District, BSNL, Tezpur.

8.3 Direct the, respondent authorities to allow the applicant to discharge his duties till 31.01.2025 i.e. the actual date of retirement as per recorded date of birth of the applicant as 01.02.1965.

8.4 Alternatively, direct the respondent authorities to release the pension and other retirement benefits due, to the applicant without any recovery from the pension and other retirement benefits of the applicant and further be pleased to direct the respondent authorities to pay the provisional pension to the applicant forthwith.

8.5 Direct the respondent authorities not to recover any amount from the pension and other retirement benefits of the applicant.

8.6 And further be pleased to pass such further or other order or orders as Your Lordships may deem fit and proper in the facts and circumstances of the case.'

2. The learned counsel for the applicant submitted that the applicant was initially appointed as casual mazdoors/part time casual mazdoors under the office ‘Of the Telecom District Engineer, Tezpur and vide order dated 01.02.1989, his service was regularized as Temporary Regular Mazdoor in the scale of pay of Rs.750-12-870-EB-14-940/- plus other usual allowances as admissible under rotes and allotted to SDOT/Tezpur. According to the learned counsel, the applicant discharged his duties to the satisfaction of all concerned. At the time of initial appointment as well as regularization, the applicant duly submitted all the documents before the respondent authority including his school leaving certificate.

3. The learned counsel for the applicant further submitted that the applicant appeared in 0 departmental screening test for the post of Phone Mechanic under Tezpur Division held on 25.06.1994 where he duly qualified. A list of qualified candidates was published on 25.07.1994 wherein the name of the applicant shown at serial No. 2 bearing Roll No. ASM-341. Thereafter, the applicant was deputed for prescribed course of Phone Mechanic and after successful the respondent authority vide order dated 24.07.1996 appointed the applicant along with others 85 Phone Mechanic temporarily in the scale of pay of Rs.975-25-1150-EB-30-1540/- with other allowances as admissible and the applicant was posted at Tezpur.

4. The learned counsel for the applicant further submitted that in view of the decision of the Government to convert the DTS/DTO into BSNL w.e.f. 01.10.2000 and as asked by the authority to give decision, the applicant intimated his decision to absorb in BSNL w.e.f. 01.10.2000 to the Secretary to the Government of India, Ministry of Communication, Department of Telecom, New Delhi. The Divisional Engineer (HRD), Tezpur vide order dated 19.07.2000 confirmed the service of the applicant in his basic cadre with effect from 04.02.1991 along with the service of other employees. The respondent authority issued MRS Registration Card in favour of the applicant bearing Registration No. BSNL MRS/TEZPUR/530 which was renewed from time to time and valid till 30.05.2020. In the said MRS Registration Card of the applicant, the date of birth of the applicant has been duly recorded as 01.02.1965. The respondent authority also issued BSNL MRS Card bearing Registration No.BSNL-MRS/TZ/3191 which is valid till 16.03.2022 wherein the date of birth of the applicant has been recorded as 01.02.1965. According to the learned counsel, in the Identity Card issued by the respondent authority, the date of birth of the applicant has been recorded as 01.02.1965. However, the respondent authority, all of a sudden, vide order dated 11.06.2018 intimated the applicant that he stands retired from service w.e.f. 31.01.2016 retrospectively on attaining superannuation and directed the applicant to struck off the official from the strength of his control w.e.f. 31.01.2016 with intimation to the respondent No. 6.

5. The learned counsel further submitted that no reason has been assigned in the said order dated 11.06.2018 issued by the respondent authority why the date of retirement has been determined as 31.01.2016 whereas the actual date of retirement of the applicant is 31.01.2025 since the date of birth of the applicant is 01.02.1965 and year of superannuation is 60 years. Being aggrieved, the applicant submitted a representation on 29.06.2018 before the General Manager, Telecom District, Tezpur praying for release of his pension.

6. It was further submitted by the learned counsel that the respondent No. 6 vide order dated 24.07.2018 directed the applicant to refund Rs.14,39,408/- (Rupees Fourteen Lakhs Thirty Nine Thousand Four Hundred and Eight) only to Accounts Officer (Claim), office of the GMTD, Tezpur by cash or DD drawn in favour of Accounts Officer (Claims) office of the GMTD, BSNL, Tezpur positively by 31.07.2018 being the over payment of pay and allowances as per statement appended with the said letter. The learned counsel fairly submitted that despite the applicant had duly submitted his school leaving certificate before the respondent authority at the time of his initial entry into the service wherein his age has, been duly recorded as 16 years 1 month as on 01.03.1972 but the respondent authorities has wrongly recorded the date of birth of the applicant in his service record as 01.02.1965. According to the learned counsel, applicant had not suppressed any fact about his actual date of birth before the respondents at any point of time, thus, there is no fault on the part of the applicant in discharging his duties beyond 31.01.2016. As such, according to the learned counsel, the impugned action of the respondent authorities is illegal, arbitrary and not sustainable in the eye of law and, therefore, the impugned orders dated 11.06.2018 and 24.07.2018 are liable to be set aside and quashed inasmuch as it is settled position of law that if an employee is paid salary during his service tenure for no fault on his part, such amount cannot be recovered from his pensionary benefit upon superannuation. Learned counsel, in support of the applicant, relied on the decision rendered by the Hon’ble Supreme Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334.

7. Mr. B.C. Pathak, learned counsel representing the respondents, submitted that since at this stage, he has no instruction, as such, he may be allowed to file written statement otherwise, he has no objection if a direction is issued to the applicant to file a comprehensive representation ventilating his grievances which will be adjudicated by the respondent authority within a time frame.

8. We have heard the learned counsel for the parties, perused the OA and the material placed on record as well as decision of Hon’ble Supreme Court in the case of Rafiq Masih (White Washer) etc. (supra). Admitted, the respondents have utilized the services of the applicants during the period of alleged excess service and also allowed the applicant to draw the salary. In the case of Rafiq Masih (supra), the Hon’ble Supreme Court has held as under:-

'12. 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, summarise the following few situations, wherein recoveries 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.'

On the basis of the aforesaid judgment the DOPT have issued orders vide OM No. 18/03/2015-Estt. (Pay-I) dated 02.03.2016 and asked the Ministries / Departments to deal with’ the issue of wrongful/excess payments made to Government servants in accordance with above decision of the Hon’ble Supreme Court in Rafiq Masih (supra). Para 4 of the OM is quoted below:-

'4. The Hon’ble Supreme Court while observing that 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 has summarized the following few situations, wherein recoveries 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 mode for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where on employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should hove rightfully been required to work against on 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 for outweigh the equitable balance of the employer’s right to recover.'

In view of the decision of the Apex Court in Rafiq Masih (supra), quoted above and the para 4 (i) of O.M. No. 18/03/2015-Estt. (pay-I) dated 02.03.2016, as quoted above, recovery from the Group ‘C’ employee, cannot be affected.

9. Since the applicant is a Group C employee, no recovery can be affected from the applicant. Since the ratio laid down in the case of Rafiq Masih (supra) and the DoPT OM dated 02.03.2016 is applicable in the ca

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se of applicant apropos recovery, we do not think it proper to send the matter to the respondents on the issue of recovery, and therefore, respondents are directed not to effect the recovery of Rs.14,39,408/- from the applicant towards excess pay and allowances paid in excess. 10. Regarding the other relief(s), as prayed for by the applicant in this OA, applicant is directed to send the copy of this OA along with this order to the respondents within a period of 10 days from the date of receipt of this order. He is also at liberty to file a comprehensive representation with the given time. On receipt of the same, the respondents are directed to consider the case of the applicant, as per rules, by treating the copy of the OA as a representation of the applicant. The respondents shall take a decision within a period one month from the date of receipt of copy of the OA and this order after affording the applicant an opportunity of hearing. Such a time limit is Considered sufficient considering the fact that the applicant has neither been getting any pay and allowances nor any pension. 11. The OA is disposed of at the admission stage itself with the above terms. There shall be no order as to costs.
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