The Chief General Manager, Bharat Sanchar Nigam Limited and others v. Bharati Saha and others

Order

“The claim of the applicant in regards to the pay fixation is dismissed but do not allow recovery of the excess payment we hereby direct the respondents to maintain the revised fixation as done by them but not recover the excess 2 payment due to wrong fixation; and if any recovery has been done, the same shall be refunded to the applicant immediately on receipt of this order.”

#2. After the passing of the Order by the CAT, the applicant therein expired as such his wife namely Bharati Saha has been substituted as the sole respondent in the present writ petition.

#3. The fact of the instant lis is that Makhan Lal Saha had joined as an employee of the then Indian Post and Telegraph Department later renamed as Department of Telecommunication as a Wireless Operator on or about 21.08.1978 in the Northeast Telecom Circle, wherefrom he got promoted as Junior Telecom Officer on or about 26.12.1991 and thereafter became Sub-Divisional Engineer (officating) with effect from 10.11.1999 and was promoted in the said post in substantive capacity with effect from 16.01.2002. Thereafter the said Department having become corporate office was renamed as Bharat Sanchar Nigam Limited (BSNL) wherein the Respondent/Petitioner was absorbed on 01/10/2000.

#4. The pay scale of the Respondent/Petitioner from time to time got enhanced and during such period according to the said Department due to wrong fixation of

pay scale the petitioner received some extra amount. It is the contention of the Appellants that the said amount which has been received in excess is to be refunded by the employee. According to the Calcutta Telephones, Kolkata there was overdrawal of Rs. 3,29,224/- which has been found by the said authority on revised fixation and had been directed to be recovered from the salary on and from the month of 3 July 2012 in equal instalments. The aforementioned sum has been recovered from the Respondent. This recovery has given rise to the present lis.

#5. The Petitioners being represented by Anil Kumar Gupta and assisted by Rahul Arya and Yogesh Kumar Sharma during submission has categorically submitted that the excess amount which has been paid to the Petitioner has been made out of mistake and the said money being public money is required to be obtained by the authority from the Respondent/Petitioner. The Learned Counsel has relied upon a judgment of the Hon’ble Apex Court in the case between Chandi Prasad Uniyal and ors. Vs. State of Uttarakhand and ors. reported in (2012) 8 SCC 417. Relying upon the said judgment, the ld. Counsel has submitted that amount paid/received by the respondent has been without authority of law and can always be recovered barring few exceptions of extreme hardship but not as a matter of right. He has further submitted that no law has been laid down through any judgment of the Hon’ble Apex Court that only if there is misrepresentation or fraud on the part of the recipients of excess amount of money, then only the excess amount paid to the concerned person can be recovered.

#6. Per contra, Mr. B. R, Das being assisted by Mr. K.K . Ghosh representing the Respondent No.1 namely Bharati Saha the wife of late Makhanlal Saha has vehemently opposed the submission of the learned counsels representing the petitioners. He has submitted that the Tribunal has arrived at the correct finding and the judgment passed by the learned Tribunal is in consonance with the 4 view of the Hon’ble Apex Court which has been laid down through several judgments. The Hon’ble Apex Court has time and again reiterated the fact that if excess amount has been paid to an employee because of no fault of the said employee on the contrary because of misinterpretation of the facts by the employer then the employee cannot be compelled to refund the excess amount received by him, that also after several years. The learned Counsel banking upon the aforementioned submissions, has reiterated that the present writ petition is devoid of any merit and the judgment passed by the learned Tribunal is to be upheld.

#7. Considered the submission of the learned counsels representing the parties and on perusal of the records it transpires that the present writ application has been preferred by the Bharat Sanchar Nigam Ltd. against the respondent namely Bharati Saha who is the wife of the deceased employee who has been said to be paid remuneration in excess of the actual amount of money which the said employee was entitled to.

#8. The employee namely Makhanlal Saha since deceased has preferred the original application before the Central Administrative Tribunal Calcutta bench seeking the following reliefs: “8.i)Rescind, recall and/or cancel the orders being Annexure Al & A2 for all intents and purpose. ii) Issue revised fixation of pay in IDA scale of Rs. 11,875- 17-275/- with effect from his regular promotion on 16.01.2002 and as regulated and fixed at Rs. 8500.00 in CDA scale of Rs. 7500-250-12,000/-. iii) Refund all the amount deducted as per Annexure-Al with suitable interests thereupon, forthwith. 5 iv) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (i) to (iii), above. v) Pass such other order/orders and/or direction /directions as deemed fit and proper. vi) Costs.”

#9. Before the learned Administrative Tribunal the employer authority has filed written statement to which reply was also filed on behalf of respondent/petitioner. So there has been exchange of affidavits through which submission of the contesting parties have been placed. Considering the materials placed on record on behalf of the contending parties the learned Tribunal has arrived at the following findings: “9. As regards to the recovery of excess payment as claimed by the respondents, it is matter of the principle of natural justice. It was ther department who actually had fixed the pay on the officiating pay scale of the applicatn. The role of the applicant in this fixation of pay in the wrong pay scale has not been specifically highlighted by the respondents. It is therefore, considered not fair to recover the excess payment particularlyt for a period which is of a very long duration. If it is found wrongly fixed, the department should have rectified it immediately. Therefore, recovering of excess payment running into more than Rs. 3 lakhs isconsidered not fair and would cause undue hardship to the applicant, keeping in view of the above, the O.A. is partly allowed.

#10. The claim of the applicant in regards to the pay fixation is dismissed but do not allow recovery of the excess payment we hereby direct the respondents to maintain the revised fixation as done by them but not recover the excess payment due to wrong fixation; and if any recovery has 6 been done, the same shall be refunded to the applicant immediately on receipt of this order”

#10. It is admitted fact that initially the respondent/petitioner was an employee of the then Post and Telegraph department which thereafter became department of telecommunication in the capacity of a wireless operator. Therefrom the said employee was promoted as Junior Telecom Officer on 26.12.1991 and later on was promoted to Sub-Divisional Engineer (officiating) with effect

10.11.1999 and promoted to the said post in substantive capacity on

16.01.2002 and thereafter the said department became corporate office and has been converted into Bharat Sanchar Nigam Ltd. (BSNL) wherein the respondent/petitioner stood absorbed in the said corporate. The dispute as regards to excess payment cropped up as the employee has sought for payment in IDA (Industrial DA) scale instead of CDA (Central DA) scale. The excess amount received by the employee during this changeover of pay scale is the issue for dispute. Ultimately during audit the pay fixation of the employee was objected to as the scale of pay was said to have been wrongly fixed in the scale of officiating post instead of the scale of regular post which the employee was holding. Rupees Three Lakhs has been already recovered out of the said excess payment.

#11. The moot point for consideration is as to whether the excess payment which has been made to the employee can at all be recovered from the employee or not. In this context this Court has gone through the following judgments passed by the Hon’ble Apex Court regarding the issue of recovery of excess payment. 7

#12. In the case between Sahib Ram Vs. State of Haryana and Ors. Reported in 1995 Supp (1) SCC 18, the view of the Hon’ble Court has been expressed in Paragraph 5 of the said judgment which is as follows the circumstances “5. Admittedly the appellant does not possess the required educational qualifications. Under appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” In Paragraph-11 of the judgment passed by a three Judge Bench of the Hon’ble Apex Court in the case between Shyam Babu Verma and Ors. Vs. Union of India and Ors., reported in (1994) 2 SCC 521 the following has been laid: “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the 8 respondents, the petitioners being in no way responsible for the same.” Another three Judge Bench of the Hon’ble Apex Court has also dealt with the same issue in the case between Syed Abdul Qadir and ors. Vs. State of Bihar and Ors. Reported in (2009) 3 SCC 475 in Paragraphs 57 to 61 the following have been laid: excess recovery payment “57. This Court, in a catena of decisions, has granted relief against emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the basis of a particular the pay/allowance or on interpretation of rule/order, which is subsequently found to be erroneous.

#58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of in excess. See Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC , Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416 : 1996 SCC (L&S) 967] , V. Gangaram v. Director [(1997) 6 SCC 139 : 1997 SCC (L&S) 1652] , Col. B.J. Akkara (Retd.) v. Govt. of India [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , Purshottam Lal Das v. State of Bihar [(2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508] , Punjab National the amount paid (L&S) 248] 9