(Through Video Conferencing)

Order (Oral):

1. The present OA has been filed by the applicant ventilating his grievance against the document and letter dated 28.2.2019 vide which he has been informed that on account of excess payment made to him, recovery has been effected from his retiral dues. The total amount of such recovery as mentioned in the OA is Rs.1,63,610/-. For the sake of clarity, the reliefs sought by the applicant in the OA are reproduced verbatim: -

“8.1 To direct the Respondents to set aside and quashed the impugned letter bearing No. 835/2-A (SR Bhowmik) Dated 28.08.2019 (Annexure-A)

8.2 To direct the Respondents to refund the recovered amount of Rs. 1, 63, 610/- (One Lakh Sixty Three Thousand Six hundred & Ten) only to the Applicant taken from his Death-cum-Retirement Gratuity (in short DCRG) benefit.

8.3 To pass any other appropriate relief or relief(s) to which the Applicant may be entitled and as may be deem fit and proper by this Hon’ble.

8.4 To pay the costs of the application.”

2. Learned counsel for the applicant submits that the applicant who was posted in the office of Geographical Survey of India, retired on 28.8.2019 while holding the position of Officer Surveyor, which is a Group „B? post. He further submits that pursuant to the recommendations of the Pay Commission, the applicant had been granted an upgraded pay scale of Rs.5500-175-9000 in the year 2013. He continued to enjoy the upgraded pay scale along with earning regular increments till the time of superannuation and, accordingly, his pension and other retiral dues were fixed. However, after a long gap of 06 years, the respondents discovered that the pay and allowances sanctioned and released to the applicant were in excess to his entitlement and admissibility. It is after his retirement that the applicant has been subjected to this recovery which has placed him in unnecessary financial adversity. Learned counsel points out that not only is the action of the respondents against the law and principles laid down by the Hon’ble Apex Court in State of Punjab & others Versus Rafiq Masih (White Washer) (2015) 4 SCC 334, they are also contrary to the detailed guidelines issued by the Ministry of Personnel, Public Grievances and Pensions vide memorandum dated 02.3.2016. He makes specific mention of the provisions holding that recovery from retired employees or from employees who are within one year of their retirement cannot be made in such cases. He points out that whatever payment was made to the applicant was pursuant to an official sanction by the Competent Authority. It is no one case that the applicant is guilty of any misrepresentation for obtaining the alleged excess amount by way of any fraud or any such misconduct. The fixation of his salary pursuant to the recommendations of the pay commission has been done by the appropriate authority of the department and the applicant has been in receipt of the same accordingly. Therefore, the learned counsel goes on to argue that the respondents be restrained from making the recovery. He further draws strength from the judgment rendered by this Tribunal on 20.8.2019 in OA No.266/2019 which discusses all the aspects and ramifications of the judgment rendered by the Hon’ble Apex Court in Rafiq Masih (supra) as also in Hon’ble High Court of Punjab and Haryana and others Versus Jagdev Singh (AIR 2016 SC 3523).

3. Learned counsel submits that the present matter as also judgment rendered on 22.7.2020 in OA No.166/2019 are similar. Learned counsel concludes his arguments by stating these two judgments of the Hon’ble Supreme Court deal with cases of identical facts and circumstances and hence the present matter is adequately and completely covered.

4. Shri Amitabh Chakraborty, Learned Central Government Standing Counsel, submits that the applicant in the year 2013 while opting for revised and upgraded pay scale pursuant to the recommendations of the pay commission had given a specific and categorical undertaking that in case any excess amount is paid to him on account of erroneous fixation of pay, he shall be obliged to refund the same. He submits that having made an express undertaking being fully aware of the consequences, the applicant is now precluded from taking shelter of this Tribunal and assail the said recovery. He further submits that the respondents are recovering the public money and being the custodian of public funds, they are duty bound to do the same. Learned counsel goes on to argue that what has been paid to the applicant in excess, is not his entitlement and hence he cannot make any legal claim over the same.

5. Learned counsel submits that in the case of Jagdev Singh (supra), the Hon’ble Supreme Court had specifically held that a bar on recovery from retired employee, cannot apply to a situation wherein the officer who is in receipt of additional/excess payment has given an undertaking while opting for revised pay scale that he would be liable for refund. The said observation was made by the Hon’ble Apex Court while discussing the principle laid down in Rafiq Masih (supra).

6. I have heard learned counsel for the parties and also perused the case file. The facts of the case are not disputed. The applicant retired on attaining the age of superannuation and his long service in the respondents? department has been stated to be unblemished. The upgraded/revised pay scale was awarded in his favour pursuant to the recommendations of the pay commission and at no stage has there been an allegation that the applicant was guilty of any misrepresentation for obtaining an amount, which is said to be in excess of what is his entitlement as per the revised pay scale. It was a very belated stage, i.e. when he was at the verge of retirement that the respondents came to this discovery that an excess payment was made to him and proceeded to make the recovery once the applicant had retired. Moreover, there is no evidence on record that any opportunity was afforded to the applicant before making such recovery. In my view, the respondents were duty bound to inform the applicant of their intention to make the recovery along with the reasons why they were proposing to do so and afforded an opportunity to the applicant to make an appropriate representation or at least respond to the same.

7. While I will not term the action of the respondents as arbitrary, it surely is unilateral and does not adhere to the principles of natural justice, especially when the blame, if any, for the excess payment, should lie at the door of the respondents. Moreover, the principle laid down in the Rafiq Masih (supra) case prohibits recovery from retired employees or employees who are due to retire within one year. Hence, recovery in the instant case is contrary to the principle laid down in the a

foresaid case. No doubt, as pointed out by the learned counsel for the respondents in the Jagdev Singh (supra) case, the Hon’ble Apex Court has also held that this principle will not apply in cases where the employee has given an undertaking, it is to be considered that in Jagdev Singh case the facts were that the respondent had been imposed the penalty of compulsory retirement from service. Hence, he retired with a stigma whereas no such blemishes are attached to the applicant. Moreover, both these cases have been deliberated and discussed at length by this very Tribunal in the Original Applications referred to above in this order. 8. In view of the situation as detailed above, the present OA is allowed and the order of recovery is set aside. No costs.