Union of India and others v Kunhiraman P.K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 OP(CAT) NO. 46 OF 2021** **AGAINST THE FINAL ORDER IN OA.NO.30/2017 OF THE CENTRAL** ## **ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN THE O.A.:** **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF POSTS, NEW DELHI 110001** - **2 THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION, VADAKARA 673101** - **3 INSPECTOR POSTS, VADAKARA NORTH SUB DIVISION, VADAKARA 673101** **4 THE POST MASTER, VADAKARA HEAD POST OFFICE, 673101** **BY SRI.S.MANU, ASSISTANT SOLICITOR GENERAL OF INDIA** ## **RESPONDENT/APPLICANT IN THE O.A.:** **KUNHIRAMAN P.K., AGED 67 YEARS, S/O. CHUNDU NAIR, GRAMIN DAK SEVAK BRANCH POST MASTER, CHATHANGOTTUNADA BRANCH POST OFFICE, KAVILAMPARA, RESIDING AT PILAKANDY HOUSE, KAVILAMPARA PO, VADAKARA, KOZHIKODE DISTRICT, 673513** **BY ADVS. M/S.S.K.BALACHANDRAN & N.D.DEEPA** **THIS OP (CAT) HAVING COME BEEN FINALLY HEARD ON** **01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(CAT) No. 46 of 2021 2 ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ================================================= OP(CAT) No. 46 of 2021 [a _rising out of the impugned final order dated 30.7.2019 in O.A. No. 30/2017 on the file of the CAT, Ernakulam Bench_ ] ================================================= Dated this the 1[st] day of December, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The sole respondent herein has filed the instant Ext.P-1 Original Application O.A.No.30/2017 before the Central Administrative Tribunal, Ernkulam Bench, with the following prayers: “ ||| |---|---| |_(1)_|_Call for the records._| |_(2)_|_Quash Annexure-A9 to the extent of its retrospective operation_| ||_and direct the Respondent No.2 and No.4 are not entitled to_| ||_recover the overpayment of TRCA retrospectively from _| ||_01.02.2014 from the allowances of the Applicant._| |_(3)_|_Direct the Respondent No.4 to refund the amount already _| ||_recovered from the allowances of the Applicant._| |_(4)_|_Any such remedy deemed fit and proper as this Hon'ble Tribunal_| ||_may be pleased to order._| |_(5)_|_Grant costs to the Applicant.”_| 2. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-3 order dated 30.7.2019 finally disposing of above O.A. with the finding that though the impugned order at Anx.A-9 is legally 3 OP(CAT) No. 46 of 2021 correct, the steps taken in pursuance thereof for recovery of amounts from the pay of the applicant at the belated stage, would be inequitable and oppressive, and that the same would go against Clause 'ii' of para 11 of the celebrated decision of the Apex Court in the case in _**State of Punjab v. Rafiq Masih [AIR 2015 SC 696] (White washer)**_ and hence, further recovery proceedings in pursuance of the impugned order will stand interdicted, etc. It is this final verdict of the Tribunal at Ext.P3 rendered on 30.7.2019 in the instant O.A.No.30/2017 that is under challenge before us in the present petition filed under Articles 226 & 227 of the Constitution of India at the behest of the Union of India and the Postal Department authorities concerned, who are respondents in above O.A. 3. Heard Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the petitioners in the O.P./respondents in the O.A. and Sri.S.K.Balachandran, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. 4. A brief recital to the facts in this case may be apposite. The applicant was appointed as Extra Departmental Delivery Agent (EDDA) at Kavilampara Sub Post Office in Vadakara Postal Division w.e.f 1.7.1981. OP(CAT) No. 46 of 2021 4 Later, he was retrenched and posted as Extra Departmental Branch Post Master (EDBPM) at Chathangottunada Branch Post Office w.e.f 13.2.1997. The case of the respondents in the O.A./petitioners in the O.P. is to the effect that the workload of Branch Post Master is assessed on point system based on average workload and that there are 5 slabs in Time Related Continuity Allowance (TRCA) corresponding to 75 points, 87.5 points, 100 points, 112.5 points and 125 points workload. The applicant was placed in the TRCA scale of Rs.3,660-70-5,760/w.e.f.1.1.2006 and he had drawn TRCA in the same scale for the period up to November, 2016. Further that, according to the respondents in the O.A., periodical review of Chathangottunada Branch Post Office was duly conducted during January, 2013, and it was found that the applicant was entitled to TRCA with a scale of only Rs.2,745-50-4,245/- instead of his earlier TRCA slab of Rs.3,660-70-5,760/- due to reduction in workload. But, the existing TRCA of the applicant was protected for one year from 1.2.2013 as referred to in Anx.A-10 communication dated 15.10.2012 issued by the Director General of Posts. That, by Anx.A-5 dated 26.2.2014, the Superintendent of Post Offices, Vadakara, had instructed the applicant to forward the workload of abovesaid Branch Post Office to 5 OP(CAT) No. 46 of 2021 the Inspector of Posts, under intimation to the Sub Post Offices, Vadakara. According to the applicant, he had immediately responded to Anx.A-5 memo dated 26.2.2014 by submitting Anx.A-6 dated 12.3.2014 giving the compilation of data relating to the workload of Branch Post Master, Chathangottunada, and the same was duly forwarded by the applicant to R-3 in the O.A. (Inspector of Posts) as directed in Anx.A-5 dated 26.2.2014. According to the applicant, there was no response to Anx.A-6, and he was under the bonafide belief that the matter has been resolved. It is much thereafter that the applicant has been furnished Anx.A-7 letter dated 15.4.2016 issued by the Superintendent of Post Offices, requesting him to furnish the requisite details of workload of the Branch Post Office concerned. That, thereupon, the applicant had again submitted Anx.A-8 letter dated 4.5.2016 addressed to the Inspector of Posts, giving the requisite details of the data of workload of Branch Post Office, Chathangottunada. It is thereafter that the Superintendent of Post Offices had issued Anx.A-9 memo dated 25.11.2016 reducing the TRCA of the applicant to the TRCA scale of Rs.2,745-50-4,245/- from the earlier TRCA scale of Rs.3,660-70-5,760/-. Being aggrieved by Anx.A-9 decision rendered on 25.11.2016, the original applicant had submitted Anx.A-11 6 OP(CAT) No. 46 of 2021 representation dated 20.12.2016 to the Superintendent of Post Offices, praying for re-examination of the decision taken in Anx.A-9 and to review the decision to reduce TRCA with retrospective effect. But the same was not heeded to. The applicant has placed reliance on the verdict of the Tribunal in cases as in Anx.A-13 final order dated 9.8.2012 in O.A. No. 907/2010 as well as in Anx.A-14 judgment of the Apex Court rendered on 16.12.2008 in Civil Appeal Nos.3351-3354 of 2003, etc. The applicant has also placed reliance on Anx.A-15 office memorandum dated 2.3.2016 issued by the competent authority of the Union Government in the Ministry of Personnel, Public Grievances & Pension, whereby the directions in Anx.A-14 judgment of the Apex Court has been complied with, etc. It is in the context of these facts and circumstances that the applicant had preferred the instant original application with the aforementioned prayers. 5. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-3 final order whereby it was held that the decision of the Superintendent of Post Offices as per Anx.A-9 reducing the TRCA scale of the applicant cannot be seriously faulted legally. However, the Tribunal has taken the view that the belated recovery steps taken as per Anx.A-9 7 OP(CAT) No. 46 of 2021 rendered as late as on 25.11.2016 from the limited sphere of the applicant could be rather unjust, inequitable and oppressive, going by the decisions rendered by the Apex Court in various cases including that in the afore cited _**White Washer's**_ case. 6. According to the case of the respondents in the O.A., the total amount which has been sought to be recovered from the applicant in pursuance of Anx.A-9 decision comes to around Rs.74,297/- out of which some amounts have already been recovered as can be seen from Anx.A-12 payslip of December, 2016. Further steps for recovery was stayed by the Tribunal as per the interim order passed on 10.1.2017 in the present O.A. In the final verdict at Ext.P-3 the Tribunal has said that further recovery will stand interdicted by specifically ordering that the interim stay order of further recovery in the O.A. will be passed as absolute, etc. The Tribunal has specifically found that the legal principles laid down by the Apex Court in decisions as in _**White Washer's**_ case supra would aptly apply in the facts of this case, more particularly, Clause 'ii' of para 11 of _**White Washer's**_ case supra. 7. During the pendency of the O.A., the applicant had retired from service on 4.10.2018 after attaining superannuation age of 65 years. 8 OP(CAT) No. 46 of 2021 It appears to be common ground that an incumbent like the applicant who has been working in the post of Extra Departmental Branch Post Master, he/she is not entitled to get any pension, and what is paid to him is small amount by way of monthly remuneration, and at best certain terminal benefits like provident fund, etc. It is in the light of these aspects that the Tribunal has found that the legal principles laid down by the Apex Court in the decisions as in _**White Washer's**_ case supra, more particularly, Clause 'ii' of para 11 thereof, which envisages some retrospective measures for recovery from retired employees/employees who are due to retire within one year, etc. 8. Viewed in the context of abovesaid facts and circumstances, we are of the view that the abovesaid factual appreciation made by the Tribunal after meticulous examination of the details of facts and circumstances in this case cannot be said to be unreasonable or is vitiated by perversity. 9. Faced in this situation, the petitioners herein/respondents in the O.A. have filed an affidavit dated 21.9.2021 in this O.P. wherein it has been _inter alia_ alleged that the applicant had not responded to the directives issued by the Superintendent of Post Offices as per Anx.A-5 9 OP(CAT) No. 46 of 2021 dated 26.2.2014 to give data compilation of the workload, and that he responded only as per Anx.A-8 dated 4.5.2016, and that had the applicant responded to Anx.A-5 within one or two months thereafter, then the amount that should have been recovered from him would be much less than the amount of Rs.74,297/- now covered by Anx.A-9 decision later taken on 25.11.2016. In other words, the respondents in the O.A. are alleging that the applicant had also contributed to the delay in the decision making process, etc. 10. In response to the affidavit dated 21.9.2021 filed by the petitioners herein, the original applicant/respondent herein had filed counter affidavit dated 11.10.2021 in this O.P., wherein he has asserted that immediately after receipt of Anx.A-5 letter dated 26.2.2014, the applicant had in fact submitted the requisite compilation of data of workload of the Branch Post Office concerned by submitting Anx.A-6 letter dated 12.3.2014 addressed to R-3 in the O.A. (Inspector of Posts) as ordered in Anx.A-5 and that for reasons not known to the applicant, the respondents in the O.A. had kept quiet about it and then again sent a letter by Anx.A-7 dated 15.4.2016 instructing the applicant to give details, to which he had again responded by submitting Anx.A-8 details of data 10 OP(CAT) No. 46 of 2021 on 4.5.2016, and that there is no delay on the part of the applicant in that regard. 11. After hearing both sides, it is to be noted that the applicant has specifically averred and asserted in the pleadings in the O.A. filed as early as on 7.1.2017 that, immediately in response to Anx.A-5 letter dated 26.2.2014, he had submitted Anx.A-6 letter dated 12.3.2014 etc and he had again submitted Anx.A-8 details of data on 4.5.2016 in response to another belated request on behalf of the respondents in the O.A. as per Anx.A-7 dated 15.4.2016. The said pleadings of the applicant in the O.A. more particularly about the assertion made regarding the submission of Anx.A-6 letter dated 12.3.2014 has never been denied in the reply statement filed by the respondents in the O.A. 12. For the first time, the case is sought to be projected in the second additional affidavit filed before this Court as later as on 26.11.2021 that, the writ petitioners herein/respondents in the O.A. have never received a copy of Anx.A-6. The Tribunal has made a factual appreciation of the case based on the available pleadings and materials on record, and has held that the recovery decision in terms of Anx.A-9 cannot be subject to any legal challenge. But, in view of the belated steps 11 OP(CAT) No. 46 of 2021 taken for recovery, and also taking into account the meager pain of the applicant etc steps for further recovery would be rather unjust. The said factual appreciation is based on the pleadings and materials on record. For the first time it is pleaded before the Court which is only exercising supervisory jurisdiction and that too, in the second additional affidavit filed before this Court where a new case is set up by the petitioners in the O.P. that Anx.A-6 was never received, etc we are not in a position to countenance the said factual plea made by the petitioners in the O.P. so as to disturb the well considered fact findings made by the Tribunal in the O.A. 13. We have cautioned and reminded ourselves that it is by now well established that the court of first instance, in cases of this nature, is the Tribunal established as envisaged in terms of Article 323A of the Constitution of India, read with the provisions contained in the Administrative Tribunals Act, 1985. Of course, the Division Bench of this Court has the jurisdiction to entertain challenge against the verdict of the Tribunal by properly constituted petition filed under Article 226 and/or Article 227 of the Constitution of India. But, where the decision of the Tribunal is rendered mainly based on factual appreciation, the consistent 12 OP(CAT) No. 46 of 2021 rule of caution is that, a court exercising even powers of judicial review or superintendence or supervision, will not immediately disturb such fact findings, unless the same is tainted by manifest perversity or unreasonableness, etc. 14. We are not in a position to hold that the Tribunal's fact finding views are, in any manner, vitiated on account of the very such factors. On the other hand, no specific denial has been made by the respondents in the O.A. by way of reply statement filed in the O.A. In spite of the specific assertion made by the applicant in the O.A. regarding the submission as per Anx.A-6. Even, the plea set up in the affidavit dated 21.9.2021 filed in this O.P. does not make out a case that Anx.A-6 was never received by the respondents in the O.A. The first time such a new factual plea is set up in the additional affidavit dated 26.11.2021 filed in this O.P. As a matter of fact, the applicant in the O.A./respondent in the O.P. has duly denied the factual averments and has again reiterated that he has in fact submitted Anx.A-6 dated 12.3.2014 addressed to the Inspector of Posts, as directed in Anx.A-5. Moreover, we see that the fact findings made by the Tribunal in the instant case is only taking into account the nature of the peculiar facts and circumstances of this case, OP(CAT) No. 46 of 2021 13 more particularly about the timely submission of Anx.A-6 response and the belated decision of the authorities as per Anx.A-9, etc. 15. In the light of these aspects, we are not in a position to disturb the well considered fact findings made by the Tribunal in this case. In other words, no grounds for invoking the public law remedy in terms of Articles 226 & 227 of the Constitution of India have been made out by the petitioners in this case. The Original Petition fails and the same will stand thus dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/VIJU ABRAHAM, JUDGE MMG OP(CAT) No. 46 of 2021 14 ## **APPENDIX OF OP(CAT).NO.46/2021** ## **PETITIONERS' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE OA.NO. 180/00030/2017 DATED 0701-2017 FILED BEFORE THE CAT, ERNAKULAM BENCH** - **EXHIBIT P2 TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS IN OA.NO. 30/2017** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO. OA.N.180/0030/2017 DATED 30.07.2019 ISSUED BY THE CAT ERNAKULAM BENCH** - **ANNEXURE A9 COPY OF THE ORDER OF THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION (RESPONDENT NO. 2), MEMO NO. A2/313, DATED 25.11.2016 REDUCING THE TRCA OF THE APPLICANT TO THE TRCA SCALE OF RS. 2745-50-4245 FROM RS. 3660-70-5760 RETROSPECTIVELY FROM 1.2.2014.** - **ANNEXURE A1 COPY OF THE INSPECTOR OF POST OFFICES, BADAGARA SUB DIVISION MEMO NO. DAII KAVILAMPARA DATED 1.7.1981 APPOINTING THE APPLICANT AS EDDA.** - **ANNEXURE A2 COPY OF THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION, (RESPONDENT NO. 2) MEMO NO. B3/CHATHANGOTTUNADA DATED 10.03.1997 APPOINTING THE APPLICANT AS ED BPM.** - **ANNEXURE A3 COPY OF THE PAY SLIP NO. 1 IN BILL NO. 7 OF AR NO. 97 FOR NOVEMBER 2016 ISSUED BY THE POST MASTER VADAKARA HEAD POST OFFICE, (RESPONDENT NO 3).** - **ANNEXURE A4 COPY OF THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION (RESPONDENT NO. 2) LETTER UNDR NO. A2/313/2012/2013 DATED 31.1.2013.** - **ANNEXURE A5 COPY OF THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION (RESPONDENT NO. 2) LETTER NO. A2/313 DATED 26.2.2014.** - **ANNEXURE A6 COPY OF THE COMPILATION OF THE DATA RELATING TO THE WORK LOAD OF THE BPM CHATANGOTTUNADA FORWARDED BY THE APPLICANT TO THE RESPONDENT NO. 3 ON 12.3.2014.** - **ANNEXURE A7 COPY OF THE SUPERINTENDENT OF POST OFFICES, VADAKARA DIVISION (RESPONDENT NO. 2) LETTER NO. A2/313 DATED 15.4.2016.** OP(CAT) No. 46 of 2021 15 **ANNEXURE A8 COPY OF THE COMPILATION OF THE DATA RELATING TO THE WORK LOAD OF THE BPM CHATHANGOTTUNADA FORWARDED BY THE APPLICANT TO THE RESPONDENT NO. 3 ON 4.5.2016.** **ANNEXURE A10 COPY OF THE DIRECTOR GENERAL, POSTS (RESPONDENT NO.1) LETTER NO. 5-1/07-WS-1, DATED 15.10.2012.** **ANNEXURE A11 COPY OF THE REPRESENTATION DATED 20.12.2016 SUBMITTED BY THE APPLICANT TO THE RESPONDENT NO. 2 PRAYING FOR RE-EXAMINATION ORDERS (ANNEXURE A9) OF UNJUSTIFIED REDUCTION OF THE TRCA WITH RETROSPECTIVE EFFECT.** - **ANNEXURE A12 COPY OF THE PAY SLIP NO. 1 IN BILL NO. 7 OF AR NO. 95 FOR DECEMBER, 2016 ISSUED BY THE POST MASTER VADAKARA HEAD POST OFFICE, (RESPONDENT NO. 3).** **ANNEXURE A13 COPY OF THE ORDER OF THIS HON'BLE TRIBUNAL, IN OA NO. 907/2010 PRONOUNCED ON 9.8.2012.** **ANNEXURE A14 COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA, IN CIVIL APPEALS NO. 3351-3354 OF 2003 PRONOUNCED ON 16.12.2008.** **ANNEXURE A15 COPY OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING OFFICE MEMORANDUM NO F NO. 18/03/2015 ESTT . (PAY I) DATED 2.3.2016.** **ANNEXURE R1 TRUE COPY OF CALCULATION SHEET OF THE WORKLOAD OF THE APPLICANT BASED ON ANNEXURE A7 STATISTIC.**