Comptroller and Auditor General of India and Accountant General (A&E), Kerala v. Sreedharan K

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938 **OP (CAT).No. 148 of 2016 (Z) -----------------------------** (AGAINST THE ORDER IN O.A.No. 570/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 11.02.2016) PETITIONERS: ------------- 1. THE COMPTROLLER AND AUDITOR GENERAL OF INDIA POCKET-9, DEEN DAYAL UPADHYAYA MARG, NEW DELHI-110124 2. THE ACCOUNTANT GENRAL (A&E), KERALA THIRUVANANTHAPURAM-695001 BY ADV. SRI.K.I.MAYANKUTTY MATHER RESPONDENT: -------------SREEDHARAN K S/O. V.K. NAIR AGED 61 YEARS, T.C. 17/1213(3), SRA-130 SASTHA NAGAR, PANGODE, THIRUMALA PO THIRUVANANTHAPURAM-695006 BY MR. VINEETH KOMALACHANDRAN THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 148 of 2016 (Z) ----------------------------- ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ----------------------- EXT. P1 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIVANCES AND PENSIONS DATED 14.2.2006 EXT.P2 TRUE COPY OF THE LETTER ISSUED BY THE 1ST PETITIONER (OFFICE OF THE C&AG OF INDIA) DATED 6.8.2014 EXT.P3 TRUE COPY OF THE ORIGINAL APPLICATION NO.570/2015 BEFORE THE CENTRAL ADMINSTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 17.7.2015 EXT.P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA NO.180/570/2015 DATED 5.10.2015 P5 TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN OA 180/570/2015 DATED 11.02.2016 RESPONDENT(S)' EXHIBITS NIL ----------------------- /true copy/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **O.P.(CAT)No.148 OF 2016** ......................................................................... **Dated this the 31[st] May , 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners are the respondents in O.A.No.180/570 of 2015 filed by the respondent herein before the Central Administrative Tribunal, Ernakulam Bench, seeking an order directing the petitioners herein to refund a sum of Rs.1,68,884/recovered from his Death Cum Retirement Gratuity (DCRG) together with penal interest. He has also sought for a declaration that the petitioners herein are not legally entitled to recover the aforesaid sum of Rs.1,68,884/- from his DCRG and as such they are liable to refund the same together with penal interest. 2. The prayers sought for in the O.A. was opposed by the petitioners herein by filing Ext.P4 reply affidavit, in which relying on Annexure R2(a) circular dated 19.10.2012 they contended that the recovery from DCRG made to the tune of Rs.1,68,884/is perfectly legal and no interference of the Tribunal is warranted. **2** ## **O.P.(CAT)No.148 OF 2016** 3. The Tribunal, after considering the facts and circumstances held that, the recovery made from the DCRG of the appellant is legally unsustainable and accordingly by Ext.P5 order dated 11.02.2016 ordered refund of Rs.1,68,884/- to the the applicant within three months from the date of receipt of a copy of that order. 4. Feeling aggrieved by Ext.P5 order passed by the Tribunal in O.A.No.570 of 2015, the petitioners herein are before this Court in this writ petition. 5. We heard the arguments of the learned Standing Counsel for the Indian Audit and Accounts Department, representing the petitioners. 6. The pleadings and materials on record would show that the applicant retired from the service on 31.12.2013, while working as Assistant Accounts Officer in the office of the 2[nd] petitioner herein. The applicant joined service as Steno Grade II in the office of the Accountant General (A&E), Orissa on 01.08.1977. In the year 1982, he went on deputation to the office of the first petitioner herein. He was given proforma **3** ## **O.P.(CAT)No.148 OF 2016** promotion in the Headquarters Office as Personal Assistant. Consequent on getting unilateral transfer to the office of the Accountant General (A&E), Kerala, second petitioner herein, he re-joined as Steno Grade II, which is a lower post, on 15.11.1998. Later, he was promoted as Personal Assistant on 15.03.1999 and his pay was re-fixed accordingly. 7. The applicant was granted second ACP on 01.08.2001 on completion of 24 years of service. He was later promoted as Section Officer, adhoc, on 27.11.2001 and his pay was re-fixed under FR 15(a). However, he was not granted 3[rd] MACP on completion of 30 years of service on the ground that he did not come within the merged cadre as on 01.01.2006. 8. In the year 2012, the respondents initiated steps to recover excess payment alleged to have occurred on account of the pay fixation granted to the applicant on 14.12.2006. This was objected by the applicant by submitting Annexure-A1 representation dated 08.08.2013. But the second respondent by Annexure-A2 communication dated 10.10.2014 informed the applicant that the excess payment amounting to Rs.1,68,884/- **4** ## **O.P.(CAT)No.148 OF 2016** has been adjusted from his DCRG. The applicant submitted Annexure-A4 representation before the first respondent pointing out that such recovery is illegal and is in violation of the judgment of the Apex Court. In order to substantiate the said contention, the applicant relied on the verdict of the Apex Court in **State of Punjab and others vs. Rafiq Masih (White Washer)** [ **(2015) 4 SCC 334)** . However, no positive orders have been passed by the petitioners herein. In the said circumstance, the applicant approached the Tribunal by filing the O.A. The petitioners herein filed Ext.P4 reply statement justifying the recovery made pursuant to Annexure-A2. 9. After considering the pleadings and materials on record, the Tribunal by Ext.P4 order came to the conclusion that the recovery sought to be effected from the DCRG payable to the applicant is not sustainable. In order to arrive at such a conclusion, the Tribunal has relied on the judgment of the Apex Court in **Rafiq Masih's** case (cited supra). The reasoning of the Tribunal as contained in paragraph 5 of Ext.P5 order is extracted below: **5** ## **O.P.(CAT)No.148 OF 2016** _“5. Annexure A-2 is the reply dated 10.10.2014 the applicant received from the respondents stating that the excess pay has been adjusted from the DCRG. Nevertheless, by Annexure A-3 judgment of the Supreme Court, the Apex Court had held that it would be impermissible in law to recover from the retired employees. Here in this case, the respondents have adjusted the excess amount from the DCRG which is a post retiral benefit due to the applicant. Nothing has been established by the respondents that the amount so deducted was on account of a pecuniary loss caused to the Government for which the pensioner was found guilty of grave mis-conduct or negligence during the period of his service. Therefore, the act of the respondents in deducting the excess payment of pay and allowances from the gratuity is not in tune with law laid down by the Apex Court in Rafiq Masih's case (supra). Hence, respondents are obliged to refund Rs.1,68,884/- recovered from the DCRG of the applicant. This shall be done within three months from the date of receipt of a copy of this order. Ordered accordingly.”_ 10. We find that the reasoning of the Tribunal in Ext.P5 order is perfectly legal and in accordance with the law laid down by the Apex Court in **Rafiq Masih'** s case (supra) that recovery from retired employees or employees who are due to retire within one year of the order or recovery; or 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, is impermissible in law. In that view of the matter, interference is **6** ## **O.P.(CAT)No.148 OF 2016** declined and the Original Petition is dismissed. No order as to costs. 11. The learned counsel for the petitioner would submit that since the time limit prescribed in Ext.P5 order is already over, reasonable time may be granted to the petitioners to comply with the directions contained in Ext.P5 order passed by the Tribunal. Based on the said submission, we grant two more months' time from the date of receipt of a certified copy of this judgment to the petitioners to comply with the directions contained in Ext.P5 order. **P.R. RAMACHANDRA MENON, JUDGE** **ANIL K. NARENDRAN, JUDGE** lk