Chandra Babu K.A. v Union of India and Others

W.P. (C) No.28864 of 2021 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## **`WP(C) NO. 28864 OF 2021`** ## **`PETITIONER/S:`** ``` CHANDRA BABU K.A. AGED 45 YEARS CISF NO.934450063, EX-INSPECTOR / EXECUTIVE, FORMERLY OF CISF UNIT KAPS KAKRAPAR, TAPI, GUJARAT, PIN - 394651., PRESENTLY RESIDING AT THANDATTUPARAMBIL HOUSE, MALAYANKADU, NEAR SIVAGIRI VIDYANIKETAN PUBLIC SCHOOL, THOTTUMUGHAM POST, ERNAKULAM, KERALA, PIN - 683105. BY ADVS. T.SANJAY MIDHUN R. SANIL KUMAR G. ``` ## **`RESPONDENT/S:`** ``` 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001. 2 THE DIRECTOR GENERAL / CENTRAL INDUSTRIAL SECURITY FORCE CISF HQ, CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN - 110003. 3 THE INSPECTOR GENERAL / CISF WEST SECTOR HEAD QUARTERS, CISF COMPLEX, NAVI MUMBAI, MAHARASHTRA, PIN - 410 210. 4 THE DEPUTY INSPECTOR GENERAL / CISF CISF WEST ZONE, HEAD QUARTERS, CISF COMPLEX, NAVI MUMBAI, MAHARASHTRA, PIN - 410 210. 5 THE GROUP COMMANDANT CISF UNIT KAPS KAKRAPAR, DISTRICT TAPI, GUJARAT, PIN - 394651. 6 THE REGIONAL PAY & ACCOUNTS OFFICER ``` W.P. (C) No.28864 of 2021 2 ``` CENTRAL INDUSTRIAL SECURITY FORCE, 2/10 JAM NAGAR HOUSE, NEW DELHI - 110 011. ``` ``` 7 CENTRAL PENSION ACCOUNTING OFFICER CENTRAL PENSION ACCOUNTING OFFICE, (GOVERNMENT OF INDIA), TRIKOOT - II, BHIKAJI CAMA PLACE, NEW DELHI, PIN - 110066. BY ADV N.S.DAYA SINDHU SHREE HARI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.28864 of 2021 3 ## **BASANT BALAJI , J.** **------------------------------** ## **W.P. (C) No.28864 of 2021** **----------------------------------Dated this the 19th day of March 2024** ## **JUDGMENT** The petitioner states that he retired from the service of the 5th respondent pursuant to the application submitted by him for voluntary retirement as per Rule 48-A of the Central Civil Service Pension Rules and he was discharged with effect from 31.10.2020. After his retirement, the respondents did not pay him the pensionary benefits due to the petitioner. On 18.02.2021, he received a letter from the 6th respondent wherein it is stated that an amount of Rs.4,50,902/- has to be recovered out of the total gratuity of Rs.8,71,884/-. A copy of the same is produced as Ext.P2. Therefore the petitioner has approached this Court seeking the following reliefs: i. to declare that the petitioner is entitled for basic pay of Rs.58,600/on the date of his retirement. ii. to issue a writ of Certiorari or any other appropriate writ or direction quashing Exts.P-2 order issued by the 6[th] respondent effecting recovery of Rs.4,5902/- from the petitioner: iii. To refund Rs.4,5902/- with 12% of interest to the petitioner recovered from him as per Ext.P-2 in violation of Apex Court Judgment reported in(2014) 8 SCC 883 and Exts.P-3/P-5 Circulars/Orders; W.P. (C) No.28864 of 2021 4 iv) To direct the 2[nd] , 4[th] ,6[th] and 7[th] respondents to re-fix the basic pay of the petitioner @ Rs.58,600/- and to refix the basic pension of the petitioner on the basis of the last drawn basic pay of Rs.58,600/- i.e. @ and basic pension of Rs.29,300/- instead of Rs.27600/- and to release all consequential benefits with interest thereon; 2. A counter affidavit has been filed by the respondents in which it is stated that under the provisions of the 5th pay commission the pay was fixed in the revised scale of Rs.2750-70-3800-75-44100 as Rs.2890/- on 01.1.1996. He was promoted to the post of Naik on 12.07.1996 and the pay was fixed as Rs.3,050/- in the pay scale of Rs.3050-75-3950-80-4590. He was thereafter promoted to the post of ASI/Exe on 17.7.2000 and his pay was fixed at Rs.4000/-. His further promotion was to the rank of SI/Exe on 26.12.2006 and his pay was fixed under the provisions of FR-22(1)(a)(1) at Rs.5500/- from 26.12.2006. On implementation of the CCS(RP) Rules, 2008 the pay of the petitioner has been fixed at Rs.8370/- + Grade pay in PB-1 5200-20200 + Grade pay of Rs.2800/- vide order dated 14.10.2008. On promotion from Grade I pay to another the fixation of pay is carried out under Rule 13 of the CCS (RP) Rules 2008. Thus the fixation of the pay of the petitioner carried out by multiplying the basic pay of Rs.5500/- in the pay scale of Rs.5500-175-9000 on his promotion W.P. (C) No.28864 of 2021 5 to the rank of SI/Exe was not in order. The petitioner was drawing a basic pay of Rs.58,600/- on the date of his retirement. Accordingly his pension papers were prepared on the last pay and forwarded to the PAO, New Delhi for release of pension. Thereafter, Ext.R5(n) was issued and the entire pay fixation/increments of the petitioner have been re-checked by the office as per rules and existing provisions on the subject and option exercised by the petitioner. Subsequently it was observed that his pay fixation was wrong from 26.12.2006 and therefore his basic pay ought to have been refixed at Rs.55200/- in spite of Rs.58600/-. Accordingly a letter was sent by the PAO, New Delhi for recovery of Rs.4,50,902/- which was an excess amount made on account of the wrong fixation of the pay. The petitioner has already submitted an undertaking at the time of retirement stating that any excess amount received due to oversight will be refunded back. A copy of the undertaking is produced as Ext.R5(p). It is also stated that the recovery of outstanding overpayment and reduction from his basic pay has been completely correct and his pension and pensionary benefits have been paid to the petitioner in accordance with the last W.P. (C) No.28864 of 2021 6 rectified pay of Rs.55200/- and therefore the respondents prays for dismissal of the writ petition. 3. The learned counsel appearing for the petitioner mainly relies on the judgment of _the apex court in_ _**State of Punjab v. Rafiq Masih** [2015 (4) SCC_ _883]. Relying on this judgment of the apex court, Ext.P3 Office Memorandum was issued on 02.3.2016 by which it was held that there shall not be any recovery from employees belonging to Class-III and Class-IV service (and Group ‘C’ and Group ‘D” service)._ _4. Recovery from retired employees or employees who are due to retire within one year of the order of recovery or recovery from employees where the excess payment has been made for a period in excess of five years before the order of recovery is impermissible. This was followed by Ext.P4 dated 08.1.2019._ 5. It is an admitted fact that the petitioner was an employee coming under group b service. It is also not in dispute that he has voluntarily retired from service on 31.10.2020. Admittedly the wrong fixation of pay occurred five years W.P. (C) No.28864 of 2021 7 prior to the retirement of the petitioner. Therefore, the dictum laid down by the apex court is squarely applied to the facts and circumstances of this case. Moreover, the learned counsel appearing for the respondents has contended that since the petitioner has given an undertaking at the time of retirement that any excess amount received by the petitioner shall be refunded, he cannot now contend that the amounts retained is illegal. 6. As an answer to the said contention, the learned counsel appearing for the petitioner relies on a judgment of the High Court of Bombay in W.P.(C) No.14296 of 2023 dated 9[th] November 2023, wherein it is held thus:- “An understanding has to be taken from the candidate when the revised pay scale is made applicable to him and the payment of such pay scale commences. At the stroke of superannuation of the said employee, asking him to tender an undertaking, practically amounts to an afterthought on the part of the employer and a mode of compelling the candidate to execute an undertaking since they are apprehensive that their retiral benefits would not be released until such undertaking is executed. Such an undertaking will not have the same sanctity as that of an undertaking executed when the 1.) payment of revised pay scale had commenced.” W.P. (C) No.28864 of 2021 8 7. Though as per Ext.R5(P), he has given an undertaking to refund the excess amount, the same cannot be used against the petitioner as the said undertaking was given at the time of retirement, in view of the above judgment in W.P.(C) No.14296 of 2023 of the Bombay High Court. In the result, the Writ Petition is allowed. Ext.P2 to the extent it retains Rs.4,50,902/- is quashed and the respondents are directed to pay the amount within a period of two months from the date of receipt of a copy of this judgment. If the amount is not paid as directed above, the said amount will carry interest at the rate of 6% from the date on which the amount become due. Sd/- **BASANT BALAJI , JUDGE** NS W.P. (C) No.28864 of 2021 9 ## **`APPENDIX OF WP(C) 28864/2021`** ``` PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF SANCTION ORDER BEARING NO.2203 DATED 31.10.2020 ISSUED BY THE 5TH RESPONDENT. Exhibit P2 TRUE COPY OF AUTHORITY FOR GRATUITY LETTER DATED 18.02.2021 ISSUED BY THE 6TH RESPONDENT. Exhibit P3 TRUE COPY OF THE OFFICE MEMORANDUM NO.F.NO.18/03/2015-ESTT.(PAY - I) DATED 02.03.2016 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. Exhibit P4 TRUE COPY OF THE CIRCULAR NO.114 DATED 08.01.2019 ISSUED BY THE 2ND RESPONDENT. Exhibit P5 TRUE COPY OF THE PENSION PAYMENT ORDER DATED 17.03.2021 IN RESPECT OF THE PETITIONER ISSUED BY THE 7TH RESPONDENT. ``` ## **`RESPONDENT(S) EXHIBITS :`** ``` Exhibit R5(o) TRUE COPY OF LETTER NO. (79) DATED 12.12.2021 ISSUED BY IG/DAE Exhibit R5(p) A TRUE COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER Exhibit R5(q) TRUE COPY OF GRATUITY AUTHORITY FILE NO. 023283/323372/10/577-79 DATED 18.02.2021 Exhibit R5(a) A TRUE COPY OF THE ORDER ISSUED BY THE GROUP COMMANDANT GROUP HQRS PATNA S.O PART-I NO.266/93 DATED 07.12.1993 Exhibit R5(b) A TRUE COPY OF THE USO PART-II NO.117/1997 DATED 14.11.1997 Exhibit R5(c) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO.98/98 DATED 11.08.1998 Exhibit R5(d) A TRUE COPY OF THE BATTALION SERVICE ORDER PART-II NO.175/2000 DATED 05.08.2000 Exhibit R5(e) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO.74/07 DATED 18.04.2007 Exhibit R5(f) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO. 204/2008 DATED 14.10.2008 Exhibit R5(g) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO.33/2009 DATED 10.02.2009 Exhibit R5(h) TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO. ``` W.P. (C) No.28864 of 2021 10 ``` 21/2020 DATED 03.02.2020. Exhibit R5(i) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO. 159/2020 DATED 15.07.2020 Exhibit R5(j) A TRUE COPY OF THE SO PART-I NO. 43/2020 DATED. 18.11.2020 Exhibit R5(k) A TRUE COPY OF THE UNIT SERVICE ORDER PART-II NO.17/2021 DATED 25.01.2021 Exhibit R5(l) A CHART OF SHOWING PAY PARTICULARS OF THE PETITIONER DATED NIL Exhibit R5(m) A TRUE COPY OF THE A LETTER NO. E- 18016/CISF/KAPS/DCRG/21/309 DATED 11.02.2021 Exhibit R5(n) A TRUE COPY OF THE LETTER NO. E- 28016/CISF/KAPS/PEN/CHANDRABABU KA/2020/2286 DATED 18-11-2020 ```