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Jammu, Feb 09: In O.A. No. 35/2025 in Original Application No. 35/2025 titled Parvinder Kour represented by Advocate, F.A. Natnoo VERSUS 1. UT of Jammu & Kashmir Through Principal Secretary to Government Power Development Department J&K Government & others after hearing CAT ordered as under:-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a) Allow this Original application of the applicant. b) Quash/set-aside impugned GPO No. PNRj-1/1224185955 dated 29-02-2024 and FPPO No. 1424185955 dated 29-02-2024 PPO No. 1122170180 issued by the respondent No. 2 which has the effect of wrong fixation of monthly family pension and depriving the applicant to receive the same on actual last pay drawn by the late husband of the applicant. c) Declare the action of the respondents in withholding the whole amount of gratuity of Rs. 20, 00000/- as illegal and unauthorized and direct the respondents to immediately release the said amount alongwith interest @ 24 %, which should be recovered from the officials/officers on whose instance the applicant has been deprived of the said amount now for more than two and a half years of the death of the late husband of the applicant. d) Direct the respondents to pay the monthly family pension to the applicant taking into consideration the last pay drawn by the late husband of the applicant with directions for release of differential amount from the date of death till realization with applicable interest. e) Any other relief which this Hon’ble Tribunal may deem just and proper in the given facts and circumstances of the case may also be passed in favour of the applicant and against the respondents.”
2. The facts of the case as averred by the applicant in her pleadings, are as follows: -
a) Facts involved in the instant case as pleaded in the OA in a nutshell are that the late husband of the applicant herein namely Tejinder pal Singh on remaining successful in the selection process conducted by the J&K SSRB initially came to be selected and appointed as Junior Engineer in the year 1993 and on his further remaining successful in the selection process conducted by JKPSC was appointed as Assistant Engineer ( Civil ) in the year 2004 .
Further the late husband of applicant after rendering about thirty years of service in the department was died in harness on 24-03- 2023 while working as Executive Engineer.
It is contended that with a view to remove anomaly between JE ( Civil ) and JE (Mechanical) appointed by the Public Works Department and JE (Electrical ) appointed by PDD from the date of their initial appointment, the Govt in order to ensure uniformity of application of rules has directed JE ( Degree Holders) to be allowed basic pay fixed at the initial higher start with Eight (08) advance increments from the date of their first appointment as provided under J&K Revised Pay Rules , 1992 and 1997.
It is averred that based on the aforesaid directions of the government, the late applicant came was allowed eight increments at the time of appointment as Junior Engineer being Degree Holder
b) The applicant further pleads that during the process of release of family pension the office of respondent No. 2 has sought re-fixation of the emoluments and recovery in view of the alleged excess amount drawn by the late husband of the applicant while allowing eight increments at the time of appointment in the year 1993.
c) The applicant contends that the office of the respondent no.2 without considering in as much as looking into the matter as per the settled norms and provisions for going ahead with correction of entries of emoluments of an employee allowed about three decades back and for a distant period has and even without putting the applicant to notice, further sought correction of the emoluments from the concerned administrative department i.e, the authorities of Power Development Department , and thereafter the respondent No. 2 has apparently revised/effected alleged correction of emoluments and benefits allowed to the late husband of the applicant w.e.f 1993 and in the process vide impugned GPO and FPPO has thus restricted monthly pension of the applicant at lesser rate as against the amount initially proposed by the respondents 1 and 3 and the respondent No. 2 has further without any logic or reason much less a cogent reason withheld the whole amount of gratuity of the applicant which under rules comes to Rs. 20,00000/- thus depriving the applicant of her legitimate amount of pensionary benefits.
d) The applicant thus being aggrieved of action and inaction on part of the respondents in withholding whole gratuity amount Rs. 20,00000/- and not allowing the fixation of monthly pension of the applicant as per the actual amount of last pay drawn by late husband of the applicant namely Tajinder Pal Singh Salaria by virtue of GPO No. PNRj- 1/1224185955 dated 29-02-2024 and FPPO No. 1424185955 dated 29-02-2024 which apparently have been issued in furtherance of so called reasons and in the name of alleged excess amount having been allowed to the late husband of the applicant in lieu of grant of increments allowed to the late husband of the applicant w.e.f 08-03-1993 and having been enjoyed for about three decades and without seeking any such correction during the lifetime of the late husband of the applicant , the applicant has thus approached this Tribunal against the impugned PPO and GPO issued by respondent No. 2. 3.
The respondents have filed their reply statement wherein they have averred as follows: -
a) The respondents No. 2 and 3, have filed their reply and have vehemently resisted the claim of the applicant with the plea that the husband of the applicant was wrongly given the benefit of increments and when it was realised, recovery was initiated.
b) During the course of submissions learned counsel for the applicant contended that the benefit of increments has been allowed by the respondents/authorities voluntarily and the late husband of the applicant otherwise had no role in such fixation and even the same has been allowed by the respondents to his senior and junior service colleagues as well, one of such example was shown during the course of arguments of that of applicant in OA No. 1196/2024 disposed of by this Tribunal on 26-03-2025, who as per the learned counsel was senior colleague of the late husband of the applicant working in PWD and therefore recovery of excess amount of payment from the retiral dues of the late husband of the applicant is impermissible.
It is also contended that there is no mis-representation or fraud on part of the late husband of the applicant in the process of allowing the benefit of increments to the late husband of the applicant. Learned counsel further contends that admittedly the recovery of alleged excess amount received is being effected without putting the late husband to any notice during his lifetime or even for that matter no such notice or intimation has been given to the applicant before effecting such recovery, thus violative of the principles of natural justice.
c) On the other hand Mr. Hunar Gupta Ld. DAG for respondents no. 3, and Mr. Sumant Sudan for respondent no.2 have vehemently contended that there is no ground to challenge the recovery which has been rightly directed to be made in view of excessive payment made to the late husband of the applicant due to wrong fixation.
4. Heard Mr. F A Natnoo Advocate for the applicant and Mr. Hunar Gupta Ld. DAG for respondents no. 3 and Mr. Sumant Sudan for respondent no.2 and perused the records.
5. It is an indisputable fact that the late husband of the applicant was granted the benefit of increments along with his other service colleagues and further that the benefit of these increments was not granted to the applicant on account of misrepresentation or fraud on his part.
The question to be decided by this Tribunal in this case thus hinges around as to whether the action of the respondents in directing recovery of excess payment made to the applicant from his salary/pension is permissible in law or not.
6. The legal position on the aforesaid issue continues to be settled that if an employee is granted some financial benefits even by applying a wrong principle for calculating the pay /allowance or even on the basis of an interpretation of rule/order which is subsequently found to be erroneous, the govt cannot recover the same unless there exists an element of fraud. It is also well settled position of law that in cases where it is found that the excess payment was not made on account of any such misrepresentation or fraud on part of the employee concerned, the same cannot be recovered that too in violation of the principles of natural justice.
7. In the case of State of Punjab vs Rafiq Masih (White Washer ) AIR 2015 SC 696 , the Hon’ble Supreme Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. The Hon’ble Court considered situation of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:-
“8. As between two parties, if determination is rendered in favour of the party , which is weaker of the two, without any serious detriment to the other ( which is truly a Welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the Citizens of India, even in the Preamble Of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of recovery on the employee concerned.
If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee’s right would outbalance, and therefore eclipse, the right of the employer to recover.
8. In para-18 of the aforesaid judgment, it was further held that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer , in excess of their entitlement. The Hon’ble Supreme Court also summarized the few situations, wherein recoveries by the employers, would be impermissible in law:
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. In any other case, where 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.
9. A similar view was taken by the Hon’ble Supreme Court in the case of Thomas Daniel vs State of Kerala & Others 2022 Live Law ( SC) 438 by observing that relief against the recovery is granted not because of any right of the employees, but in equity, exercising judicial discretion to provide relief to the employees from hardship that will be caused if the recovery is ordered. Particularly, when an employee had no role for the excess payment made to him by the employer.
10. The Hon’ble High Court of Jammu and Kashmir and Ladakh at Srinagar in a judgment dated 28.08.2024 in case titled Jamsheed Ahmad Khan versus U.T. of J&K and Ors in WP(C) 296/ 2024 has made following observations: -
“9.Having regard to the respective submissions of the appearing counsel for the parties, perusal of the aforesaid judgments becomes imperative, a deeper and closer examination of which would manifestly reveal that the issues involved in the instant petition qua the withdrawal of benefit of SRO 59 of 1990 by the respondents to the petitioner herein inasmuch as recoveries ordered from the petitioner herein indisputably had also been the issues involved in the petitions wherein the aforesaid judgements have been passed while relying upon various judgements of the Apex Court in particular passed in case titled as “Union of India and others versus Jagdish Pandey and others” decided on 08.07.2010, in case titled as “Sahib Ram versus State of Haryana and others” reported in 1995 Supp (1) SCC 18, in case titled as “Syed Abdul Qadir versus State of Bihar and others, reported in 2009 (3) SCC 475, in case titled as “State of Punjab versus Rafiq Masih report in 2015(4) SCC 334 and in case titled as “Thomas Danial versus State of Kerala and others” being Civil Appeal no. 7115 of 2010 decided on 02.05.2022 and it has been consistently laid down and held that once the department has made the pay fixation of an employee without any misrepresentation or fraud by the said employee, then the employer cannot reduce the pay by alleging that the pay was fixed wrongly and that too at the fag end of the service of an employee or even after his retirement and that the pension of such an employee is to be fixed on the basis of last pay drawn by such employee and also that no recoveries thereof can be either oxrdered or effected on account of such alleged wrong fixation at that fag end of that service or after the retirement of the said employee
10. Having regard to the facts and circumstances inasmuch as the issues involved in the instant petition coupled with the position of law laid down in the aforesaid judgements, we have no reason to take a different view in the instant petition but to follow the aforesaid mandate laid down in the judgements supra in the instant case as well.
11. For what has been observed, considered and analysed hereinabove, the petition succeeds as a consequence whereof the respondents are commanded to restore the pay band of the petitioner of Rs.5200-20200, GP 2800 with basic pay of Rs.62,400/- as on 01.07.2021 pay level 6A and consequently calculate and release all retiral benefits in favour of the petitioner thereto including the pension, gratuity, leave salary and all other post-retiral benefits which the petitioner would be entitled to and refrain and forbear from effecting any recoveries from the petitioner pursuant to the impugned communication
12. As a consequence of above, the impugned communication/s as also the impugned order dated 31.01.2024 passed by the Tribunal in O.A. No. 26 of 2024 titled as “Jamsheed Ahmad Khan versus Commissioner Secretary to Government and Others” shall be deemed to have been quashed.”
11. Even in a recent judgment the Hon’ble Supreme Court in case titled Jagdish Prasad Singh Vs State of Bihar &Ors. (Civil Appeal No.1635 of 2013) judgment dated 08-08-2024, while allowing the plea of an employee, having been subjected to recovery and reduction of pension, in accordance with the pay scale he was been allowed such benefit, has further directed that in case any reduction of pension and the consequential recovery effected, the employee was entitled to restoration/reimbursement thereof with interest as applicable.
12. In view of the aforesaid pronouncement of the Hon’ble Supreme Court as well as the Hon’ble High court of J&K And Ladakh , it is clear that the action of the respondents in making the recovery from the family pension of the applicant, that too after lapse of considerable period of time, is grossly arbitrary and illegal and also suffers from the voice of non-adherence of principle of natural justice and hence the same cannot sustain.
13. In view of the above discussions and facts and circumstances of the case the following directions are made:
a) The impugned GPO No. PNRj-1/1224185955 dated 29-02-2024 which has the effect of taking away the gratuity amount towards recovery is quashed.
The amount recovered from the gratuity and other benefits shall be released immediately.
b) The whole exercise as above shall be completed immediately, preferably within 03 months from the date of receipt of copy of this order failing which the amount due shall be released with interest @6% from the date of withholding/recovery till its actual realization.
14. With the above directions, OA stands disposed of. No costs.
(RAJINDER SINGH DOGRA)
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