Principal Secretary, Aviation Research Centre, New Delhi & Ors. … v. ….. Opposite Party CORAM
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 43110 of 2023 Principal Secretary, Aviation Research Centre, New Delhi & Ors. ….. Petitioners Mr. Biswajit Moharana, CGC Laxmidhar Mahunta Vs. ….. Opposite Party CORAM:
Legal Reasoning
ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 10.01.2024 Order No. 1 This matter is taken up through hybrid mode. 2. Heard Mr. B. Moharana, learned Central Government Counsel appearing for the petitioners. 3. The petitioners have filed this writ petition seeking to quash the order dated 27.04.2023 passed in O.A. No.403 of 2017, by which the Central Administrative Tribunal, Cuttack Bench, Cuttack, while holding that the recovery of Rs.66,132/- from the retirement dues of the opposite party towards the differential amount drawn due to erroneous fixation of 2nd MACP granted to him long back is not sustainable, quashed the order dated 14.03.2017 by applying the law laid down by the apex Court in State of Punjab & Others v. Rafiq Masih (White Washer) & Ors, 2015 (4) SCC 334 and directed the petitioners to refund the said amount to the opposite party within a period of 30 days from the date of the receipt of the order and further did not find any Page 1 of 4 justifiable reason to interfere in the recovery of Rs.10,000/- made from the retirement dues of the opposite party towards retention of Govt. accommodation, 4. Mr. B. Moharana, learned Central Government Counsel appearing for the petitioners contended that the opposite party is liable to pay the amount of Rs.66,132/-, as has been drawn by him due to erroneous fixation of 2nd MACP. But, the Tribunal without taking into consideration of the contentions raised, directed the petitioners to refund the aforesaid amount to the opposite party and did not interfere in the recovery of Rs.10,000/- made from the retirement dues of the opposite party. 5. Considering the contentions raised by learned Central Government Counsel appearing for the petitioners, this Court finds that the opposite party is a retired Fire Supervisor of Aviation Research Centre, Charbatia, Cuttack and he filed O.A. No.403 of 2017 seeking to quash the order dated 14.03.2017 and to direct the petitioners to refund the amount already recovered in pursuance of the said order. As such, he stated that he was in no way responsible for the payment made to him on account of fixation and refixation of pay, recovery from his retirement dues after lapse of long time was unwarranted. To substantiate his contention, he placed reliance on Rafiq Masih (supra). The present petitioners being the opposite parties in the O.A. filed their counter affidavit contending that the opposite party retired from Govt. Service on 31.10.2015. An amount of Rs. 66132/- towards excess payment made due to wrong fixation of pay under ACP and Rs.10,000/- towards retention of Govt. accommodation was found by the Director of Accounts (DACS) to have been paid to the opposite party and the same was recovered from his retirement dues. He did Page 2 of 4 not challenge or raise objection to the said recovery then and there. Against such recovery on 18.07.2016 he submitted a representation, which was considered and rejected vide order dated 14.03.2017 (Annexure A/6 to the O.A). Therefore, reiterating the factual position as to how there was wrong fixation of the pay of the opposite party, learned counsel for the petitioners submitted that there being no illegality in the decision making process of the matter, no interference in the impugned order is called for. In so far as applicability of Rafiq Masih (supra) is concerned, learned counsel for the petitioners submitted that taking into consideration the law laid down by apex Court, DOPT issued OM relating to recovery on 02.03.2016 and the opposite party having retired from service w.e.f. 31.10.2015, the decision of the apex Court and DOPT OM having no retrospective effect, the same cannot come to the aid of the opposite party for the relief claimed in the O.A. 6. On perusal of the records, it appears that the opposite party after introduction of ACP Scheme vide DOPT OM dated 09.08.1999 was given 1st and 2nd financial upgradation on completion of 12 & 24 years of service. Thereafter, the petitioners, vide order dated 12.05.2006 indicated that the opposite party was only eligible for one financial upgradation i.e. the 2nd w.e.f. 09.08.1999. The opposite party had challenged the order dated 12.05.2006 before the Tribunal, as one of the applicants in O.A. No.502 of 2006 along with batch cases, which was disposed of vide order dated 07.05.2009. Against the said order, the opposite party challenged the said order approached this Court by filing W.P.(C) No.12553 of 2009 and this Court, vide order dated 21.08.2013 remanded the matter to the Tribunal for fresh adjudication. Page 3 of 4 7. The Tribunal, after due adjudication, vide order dated 27.04.2023, held that when the DoP&T circular was issued in pursuance of the decision of the apex Court in Rafiq Masih (supra), even if the circular is silent about its retrospective application, the said circular is bound to be made applicable to the case. Accordingly, the Tribunal came to a conclusion that the recovery of Rs.66,132/- from the retirement dues of the opposite party towards the differential amount drawn due to erroneous fixation of 2nd MACP granted to him long back is not sustainable, and quashed the order dated 14.03.2017 passed by the authority. Thereby, the Tribunal directed the petitioners to refund the amount of Rs.66,132/- to the opposite party within a period of thirty days from the date of receipt of the order and did not interfere in the recovery of Rs.10,000/- made from the retirement dues of the opposite party towards retention of Govt. accommodation. 8. In the above view of the matter, the Tribunal is well justified in passing the order dated 27.04.2023 in O.A. No.403 of 2017. Accordingly, this Court does not find any illegality or irregularity in the aforesaid order. Thereby, the writ petition merits no consideration and the same is dismissed. Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 11-Jan-2024 17:24:47 (DR. B.R. SARANGI) ACTING CHIEF JUDGE (M.S. RAMAN) JUDGE Page 4 of 4