The recovery of benefits given to an employee can be contested if it falls under specific situations as outlined in the judgment of the Supreme Court in the case of Rafiq Masih (supra).

JUDGMENT

V. Kameswar Rao, J. (Oral)

1. The challenge in this petition is to an order dated July 31, 2019 passed in Original Application being OA. 747/2019 by the Central Administrative Tribunal thereby dismissing the OA.

2. The grievance of the petitioner in the OA was against the recovery made from his retiral dues pursuant to the orders dated August 8, 2018 and August 28, 2018. The petitioner had sought a direction to the respondents to refund the amount recovered.

3. The facts as noted from the petition are, the petitioner had joined respondent DDA as Junior Engineer (C) on July 23, 1981 and retired as Assistant Engineer (C) on superannuation on April 30, 2018. During the pre-audit of the pension and terminal benefits, certain discrepancies were noticed with respect to grant of 2nd ACP/MACP. The 1st ACP was granted to the petitioner vide order dated March 29, 2004 w.e.f July 1, 2001 and 2nd ACP was granted vide order dated December 22, 2005 w.e.f July 23, 2005.

4. On re-examination, the respondents have issued an Office Order dated August 8, 2018, whereby the respondents have granted the financial upgradation to the petitioner in the pay-scale of Rs.10,000 - Rs.15,200/- w.e.f July 14, 2007. Thereafter on August 28, 2018, the petitioner was granted the 3rd financial upgradation under the MACP Scheme in the pay-scale of Rs.15,600 - Rs.39,100/- in the Grade Pay of Rs.7,600/- w.e.f June 14, 2013.

5. The petitioner submitted representations dated June 25, 2018, September 25, 2018, October 4, 2018 and November 6, 2018 and a legal notice dated November 27, 2018 to the respondents. When no action was taken by the respondents, he filed an Original Application being OA No. 375/2019 before the Tribunal. The said OA was dismissed as withdrawn on February 15, 2019 with liberty to the petitioner to file a fresh one as a fresh PPO dated April 4, 2019 was issued by the respondents showing reduced pension @ Rs.45,700/- per month in place of Rs.49,900/- per month granted vide earlier PPO dated May 22, 2018 resulting in recovery of amount of Rs.9,90,217/- from the retiral dues payable to the petitioner which included an amount of Rs.89,132/- which was recovered on account of leave encashment.

6. The case of the petitioner before the Tribunal was by relying upon the Judgment of the Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih etc, 2015(2) SLJ 151 (SC) as the impugned orders have been issued after long gap of 13 years and 5 months from the date of issue of earlier orders.

7. On the other hand, the case of the respondents was that the 2nd ACP was revised as the same was wrongly given vide order dated December 22, 2005. In other words, the 2nd ACP was wrongly granted to him on July 23, 2005 instead of entitlement from June 14, 2007. Similarly, 3rd MACP was wrongly granted to him from July 23, 2011 vide order dated June 24, 2013 instead of from date of entitlement for the same w.e.f June 14, 2013, which fact came to the notice of the respondents at the time of pre-audit of pension and terminal benefits and accordingly the orders dated August 8, 2018 and August 28, 2018 were issued.

8. The Tribunal though had noted the judgment of Rafiq Masih (supra), but had relied upon the subsequent judgment of the Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh, Civil Appeal No.3500/2006 decided on July 29, 2016 to hold that in terms of the said judgment there is no illegality and infirmity in the impugned orders passed by the respondents.

9. The submission of the learned counsel for the petitioner before us is that the Tribunal has clearly erred in not following the ratio of the judgment in the case of Rafiq Masih (supra). That apart his submission is that the Tribunal has wrongly relied upon the judgment in the case of Jagdev Singh (supra) inasmuch as in the said judgment, recovery was upheld as there was an undertaking given by the employees in that case that any payment found to ha