O R D E R (Oral)

Per: RAMESH SINGH THAKUR, MEMBER (J):

1. This Original Application has been filed by the applicant seeking the following relief:

i. Invalidate the action of the respondents department to affect recovery from the applicants on account of wrong fixation of salary-pay.

ii. Issue directions to the respondents that in the matter of the applicants follow the ratio of the judgment dated 18.12.2014 (Annexure A-5) passed by the Hon’ble Supreme Court of India in Civil Appeal No. 11527 of 2014.

iii. Issue directions to the respondents to immediately refund the entire amount of recovery in each individual case that has been recovered from the applicants on account of recovery from the applicants on the ground of wrong fixation/re-fixation of pay, the details of which are with the department along with an interest of 18% p.a.

2. It is submitted by the applicants that applicant no. 1 stood retired on 31.01.2020 and applicant no. 2 stood retired on 29.02.2020 from Bharat Sanchar Nigam Limited Punjab Circle as Accounts Officers (Group-B).

3. Vide letters dated 14.02.2020 (Annexure A-1) and 26.02.2020 (A-2), pay of applicant no. 1 & 2 respectively was re-fixed and it was observed in the said letters that in case any over payment is detected the same will be recovered without any notice to the employee.

4. In pursuance of letters Annexure A-1 & A-2, amount to the tune of Rs. 1,96,953/- and Rs. 1,43,275/- has been recovered/deducted from retiral benefits of applicant no. 1 & 2 respectively, as indicated by slips issuing retiral benefits in March, 2020 (A-3 & A-4).

5. The applicants submit that the Hon’ble Supreme Court in its judgment dated 18.12.2014 (A-5) in State of Punjab & Ors. v/s Rafiq Masih (White Washer) etc. in Civil Appeal No. 11527 of 2014 has held that recovery from retired employees who are due to retire within one year of the order of recovery and also recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued is impermissible in law.

6. The applicants have further submitted that along with other similarly situated persons the applicants got legal notice (A-6) issued to the respondents demanding refund of the recovered amount, and in response to the legal notice respondent no. 2 vide their reply (A-7) stated that CCA has no role in these recoveries, whereas respondent no. 4 in their reply (A-8) stated that these recoveries have been made after receiving a letter from CCA/respondent no.2 and has been recovered from the applicants after receiving their willingness for recovery of the said amount, and further observed that judgment of the Hon’ble Supreme Court in Rafiq Masih (supra) is not applicable in the present case.

7. Respondent no. 2 has submitted that the recoveries from the applicants were made by BSNL. The recoveries pertained to overpay and allowances, which is paid by BSNL to its employees and no amount of recovery were made from the retiral benefits of the applicant by respondent no.

2.

8. Respondents no. 1 & 3-5 have submitted that as per policy decision dated 20.04.1999 (R-1), while granting benefit of OTBP/BCR, specific directions were issued for fixation of pay. Para 5 of R-1 mentioned that the placement of officials in the higher pay scale as mentioned therein shall be with pay fixation under FR 22(1)(a)(2), and while granting the benefit of pay fixation at the time of grant of OTBP Scheme in 2002, pay of the applicants was fixed as per FR 22(1)(a)(i) instead of FR 22(1)(a)(2) as mentioned in the policy decision.

9. Respondents no. 1 & 3-5 further submit that when the officers of BSNL Jalandhar visited the office of Dy. CCA DoT Cell, Punjab Circle, Chandigarh for pre-verification of pay- fixation sheets from the date of appointment to the date of retirement under BSNL VRS, 2019 i.e. 31.01.2020 in respect of all the VRS optees, while verifying the same, DoT authorities pointed out objections regarding pay fixation of some officials and