Friday, October 11, 2013

Bom OA 684/2011

Bom OA 684/2011



Dated this Wednesday, the 16th day of January, 2013.


Nandkishore Rampyare Pardeshi,
working as Jr. Librarian(adhoc),
Central Administrative Tribunal,
Bombay Bench,
Gulestan Building No.6,
3rd & 4th floor,
Ghanshyam Talwatkar Marg,
Fort, Mumbai-400 001.
R/at: A/71/07, Sector 13,
CIDCO Colony,
New Panvel-410 206.   ...   Applicant

(By Advocate Shri S.P. Kulkarni)


1. Union of India,
through Registrar,
Central Administrative Tribunal,
Bombay Bench,
Gulestan Building No.6,
3rd & 4th floor,
Ghanshyam Talwatkar Marg,
Fort, Mumbai-400 001.

2. The Sr. Accounts Officer,
Internal Audit Wing,
Ministry of Personnel,
Public Grievances and Pensions,
Room No.347, B-Wing,
3rd floor, Lok Nayak Bhavan,
Khan Market,
New Delhi-110 003.  ...  Respondents

(By Advocate Shri R.R. Shetty alongwith
Shri S.G. Pillai)

Per: Smt. Leena Mehendale, Member(A)
Heard both the learned counsel for the Parties.
2. The issue involved is very small.  On granting the promotion to the Applicant, the office has issued his Pay-fixation Order which we find at Annexure A-4 dated 07th February, 2011.  The Pay-fixation Order talks of one Ad-hoc promotion given w.e.f. 28th June, 2005 then the reversion on 19th June, 2006 and again another Ad-hoc promotion w.e.f. 07th April, 2008 then second reversion w.e.f. 06th April, 2011 and finally a regular appointment as Junior Librarian w.e.f. 15th April, 2011.  The various pay stages have been indicated in the said order with a proviso that excess payment, if any, shall be recovered from the salary of the official.  Towards this Pay-fixation Order, the Applicant has given undertaking at Annexure R-11 on page 47 that if any discrepancies are noticed subsequently or it is noticed that the pay fixation is incorrect then any excess amount so paid shall be refunded by him.
3. Subsequent to this, the Respondent department did notice a discrepancy in the pay fixation and a Re-pay-fixation order by way of correction came to be passed on 19th September, 2011 which is within two months of the first order and it was proposed to recover an amount of Rs.41,379/- in monthly installments and the first installment has also been recovered.  Further recovery has been stayed by this Bench.  Today when the case came for hearing, the learned counsel for the Applicant has made out two points firstly that no recovery should be made because the excess payment was not through any mistake of the Applicant himself.  Secondly, if at all recovery is to be made, then the principles of natural justice demand that the Applicant should be allowed to put up his case before starting actual recovery.  Therefore, he should be given show-cause notice.  As far as the revision of the actual pay fixation for modifying the earlier Pay fixation Order at Annexure A-4, the Applicant as well as learned counsel agree that refixation by way of correction is in order.  Hence, learned counsel would press only for the two points as mentioned above.
4. Learned counsel for the Respondents submits that in view of the undertaking given by the Applicant, this case must be differentiated from the other cases of which Sahib Ram V/s. State of Haryana & Others, 1995 SCC (L&S) 248 is a representative case.  Those cases did not fall under the category where an undertaking is obtained from the Government employee in apprehension of a possible mistake in pay fixation.  He, however, concedes that the Applicant deserves to be given a show-cause notice before the actual recovery.
5. We agree with the contention of the learned counsel for the Respondents.  It is often observed in administration that when promotion orders are issued and pay fixation is to be done, the administration has two options.  First option is to delay the issuance of pay fixation till all the concerned records of the concerned employee is thoroughly checked and give the actual pay fixation benefit only thereafter.  This has often caused financial hardship to the concerned employee in past.  The alternative, therefore, is to issue a pay fixation order with the proviso that the discrepancies, if any, noted at the later stage would allow the Government to recover the excess payment.  It is for this purpose that an undertaking is taken from the concerned employee.  The present case falls under this category as it seen from Annexure R-11 dated 15th September, 2008.  We also find that the discrepancy in pay fixation was noticed very quickly i.e. within three months.
6. In view of this, the Original Application is partly allowed.  The impugned order at Annexure A-1 is set aside with a liberty to the Respondents that they must first give a show-cause notice to the Applicant before proceeding for any further action.  The Respondents shall give the show-cause notice, if they so desire, within four weeks from the date of receipt of a copy of this order.  Misc. Application No.924/2012 stands disposed of.  No order as to costs.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)             Member(A)

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