OP (CAT) No. 37 of 2018

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **&** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939** **OP (CAT).No. 37 of 2018** **OA.180/00969/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS 1 TO 5:** **1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI -110 001.** - **2 THE DIRECTOR GENERAL, ALL INDIA RADIO, PRASAR BHARATHI CORPORATION, NEW DELHI -110 001.** - **3 THE CENTRAL PENSION ACCOUNTING OFFICER, THRIKOOT 2, BHIKAJI CAMA PALACE, NEW DELHI -110 066.** - **4 THE PAY AND ACCOUNTS OFFICER (ALL INDIA RADIO), NO.7, KAMARAJ SALAI, MYLAPUR, CHENNAI - 600 004.** **5 THE STATION DIRECTOR, ALL INDIA RADIO, PRASAR BHARATHI, VAZHUTHACAUD, THIRUVANANTHAPURAM -695 014.** **BY ADV.SRI.N.NAGARESH, ASG** ## **RESPONDENTS/APPLICANT/RESPONDENTS 6 & 7:** **1. N. GOPI ASARI, RETIRED CARPENTER, ALL INDIA RADIO, THIRUVANANTHAPURAM, RESIDING AT EDAVACODE VEEDU, EDAVACODE, SREEKARIYAM P.O., THIRUVANANTHAPURAM - 695 017.** **2. THE MANAGER, CENTRALISED PENSION PROCESSING CENTRE, STATE BANK OF TRAVANCORE, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014.** **3. THE MANAGER, STATE BANK OF TRAVANCORE, SREEKARIYAM, THIRUVANANTHAPURAM - 695 017.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP (CAT).No. 37 of 2018 (Z)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE OA NO.180/00969/2016 DATED 13.11.2016 FILED BY THE 1ST RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 13.07.2017 FILED BY THE PETITIONERS EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.180/00969/2016 DATED 24.08.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **RESPONDENT(S)' EXHIBITS** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** **5.3.2018** ## P.R.Ramachandra Menon & Devan Ramachandran, JJ. ------------------------------------------------------- ## O.P.(CAT)No.37 of 2018 ------------------------------------------------------- Dated this the 20[th] day of February, 2018 ## **JUDGMENT** ## **Ramachandra Menon, J.** The challenge is against Exhibit P3 order passed by the Central Administrative Tribunal, whereby the recovery sought to be made by the petitioners in view of the excess payment of pension to the respondent herein has been interdicted for the reason that no notice of hearing was ever issued and in turn, directing the authority concerned to finalise the proceedings after hearing the respondent, who had already been served with a show-cause notice by the time the matter was finalised. 2. Heard the learned Central Government Counsel for the petitioners. 3. The petitioners were the respondents in the Original Application. The factual position revealed from the proceedings is that the respondent herein was serving as a Carpenter (Group D) in the Office of the All India Radio, OP(CAT) 37/18 2 Thiruvananthapuram and he retired form the service on 30.11.2004. It is stated that, pursuant to the retirement on superannuation on 30.11.2004, the basic pension of the respondent was fixed as Rs.4,100/-, which came to be enhanced to Rs.4,846/- later. Pursuant to the implementation of the recommendation of the VI Central Pay Commission, the pension came to be revised with effect from 01.01.2006 and the same was wrongly fixed at Rs.10,953/-. On coming across the mistake, the same was corrected by the authorities concerned, whereby the erroneous fixation at Rs.10,953/- was reduced to Rs.7,302/- in the year 2015. By virtue of the said course and proceedings, it was found that some excess payment was effected during the period from 2012 to 2015, which accordingly was sought to be recovered, based on the 'undertaking' already given by the respondent with regard to the fixation. This was sought to be challenged by the respondent by filing the Original Application with the following prayers: “1. Declare that recovery being effected by the respondents from the pensionary amounts, thereby reducing the entitled pensionary amounts due to the OP(CAT) 37/18 3 applicant in terms of the pension authorization orders is illegal and arbitrary. 2. Direct the respondents not to effect any recovery from the pensionary amounts due to the applicant, on account of alleged excess payment of pension from December, 2014 onwards. 3. Direct the respondents to extend the benefit of decision of the Hon'ble Supreme Court in White Washer's case (Civil Appeal No.11527/2014 in State of Punjab & Others v. Rafiq Masih) to the applicant. 4. Direct the respondents to refund the recovered amounts from the pensionary amounts due to the applicant being effected since December, 2014. 5. Direct the respondents to release the arrear amount of Rs.16,359/-, recovered from the arrears due and payable to the applicant for the month of August, 2016. 6. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice. 7. Award the cost of these proceedings.” 4. The claim was resisted by the Department pointing out that the petitioners herein were justified in effecting the recovery, particularly in view of the 'undertaking' given by the employee/pensioner. The matter was considered by the Tribunal, when it was noted that, as borne out by the pleadings, no notice was however issued before affecting the re-fixation and recovery and as such, it was in violation of the OP(CAT) 37/18 4 principles of natural justice. It was also brought to the notice of the Tribunal by the employee, that by virtue of the nature of employment no recovery was possible in view of law declared by the Hon'ble Supreme Court in **State of Punjab v. Rafiq Masih (White Washer)** ((2015) 4 SCC 334). The Department however sought to rely on the subsequent verdict passed by the Supreme Court in **High Court of Punjab and Haryana v. Jagdev Singh** ((2016) 14 SCC 267) holding that the cases where an 'undertaking' was given would stand on a different footing and that recovery of the excess payment is possible under such circumstance. But the Tribunal made an observation in paragraph 4 of Exhibit P3, that a Group D employee cannot be compared with the employee having a higher status whose case was dealt with by the Apex Court in 2016 and it was observed that, even even if an 'undertaking' was given by the applicant in the instant case, the same could not be taken to his prejudice. However, since a show-cause notice was already issued (by the time the proceedings were finalised by the Tribunal), it was held that the employee was OP(CAT) 37/18 5 entitled to submit a reply to the show cause notice and it was accordingly, that the Original Application was disposed of as per Exhibit P3, directing the matter to be taken to logical conclusion based on the objection to be submitted by the employee in response to the show-cause notice already issued. It was simultaneously held that, till such time no further recovery shall be made from the pensionary amounts paid to the applicant and to return the amount if already recovered, based on the decision to be taken. 5. The learned Central Government Counsel submits that the observations contained in Exhibit P3 virtually declare the position in favour of the applicant and as such, no further orders can be passed by the Department on merit based on the reply to be given by the employee. The Apex Court had occasion to consider whether recovery of the excess payment would be justified and under what circumstances could it be effected with reference to the nature of posts held by the employees. The Supreme Court in **Rafiq Masih's case** (cited supra), which deals with this issue, held as follows: OP(CAT) 37/18 6 (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. (v) If 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 far outweigh the equitable balance of the employer's right to recover.” 6. It is true that the Apex Court had occasion to consider whether recovery is possible when an 'undertaking' is given and has answered in the positive as per the subsequent decision reported in **Jagdev Singh** (cited supra). But then, the said decision in noway did overrule or water down the scope of the verdict passed by the Apex Court in **Rafiq Masih's case** (cited supra) and the declaration made in respect of the Group D employees, i.e., the employees who are occupying the lower ranks in the hierarchy, still stands. This is OP(CAT) 37/18 7 a matter to be considered by the authority giving effect to the verdict passed by the Apex Court, as there is absolutely no conflict of interest between these two decisions. In the said circumstance, since a show cause notice has now been issued and the Tribunal has directed to consider the objections to be submitted in response to the show cause notice and to finalise the matter accordingly, this Court does not find it necessary to pass any further orders and no interference is called for. It is open for the authority concerned to finalise the matter based on the objections as aforesaid and also in the light of the observations made by the Apex Court in both the decisions to appraise the net result and to proceed with further steps. The Original Petition stands disposed of accordingly. P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv