Recovery of excess pay impermissible if employee retires within one year of order or excess paid over five years, absent fraud.

ORDER 

PER: DR. SANJIV KUMAR, MEMBER (A)

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

(i) “Set aside the Impugned Order dated 14.11.2023 bearing Ref. No. ADMN.20036/1/2022/9955 (Annexure-A1) passed by the Respondent No. 3;

(ii) Set aside communication dated 15.03.2023 bearing reference F.No. Admn -20036/1/2022 issued by the Respondent No. 3; (ANNEXURE A4).

(iii) Set aside Office Order dated 01.04/05.2023 bearing No. NWDA/IC/Admn./F.09/2022/789-94 passed by the Respondent No. 5 (Annexure-A5).

(iv) Issue directions restraining the Respondents from initiating any action or proceedings seeking recovery of any alleged excess amounts that may have been paid to the Applicant as a result of the revision of his pay matrix;

(v) Issue directions to the Respondents to pay to the Applicant such amounts, if any, that have been unilaterally deducted from his pay.

(vi) Pass such other or further orders as this Hon’ble Tribunal may deem fit in the facts and circumstances of the case, including award of the costs of this Application, in the interests of justice and equity.”

2. On the grounds as mentioned in para 5 (A to I), the brief fact of the applicant is that the applicant is currently employed and working as the Executive Engineer, Investigation Division, with National Water Development Agency in Bengaluru. He was granted 3^rd Financial upgradation under the Modified Assured Career Progressions Scheme (MACP) in Pay Band-2 with effect from 18.02.2016 and consequent to the implementation of the 7^th Central Pay Commission, his pay was re-fixed in Level-9 of the pay matrix (corresponding to Pay Band-2) with effect from 01.01.2016 and in 2017 the applicant received functional promotion from the post of Assistant Engineer to Assistant Executive Engineer and his pay matrix was raised from Level-9 to Level-10 with effect from 12.07.2017. Pursuant to above, the applicant continued to dutifully discharge his duties and received his monthly pay without any interruptions. On 15.07.2020, the applicant was promoted to the post of Executive Engineer in Level-11 of the pay matrix with effect from 15.07.2020. After a lapse of 05 years, the Respondent No.3 issued a communication dated 15.03.2023 bearing reference F.No. Admn.-20036/1/2022 to the Respondent No.4 stating that as the Applicant received pay fixation at the time of 3^rd financial upgradation, he was not entitled to any additional increment at the time of his promotion to Assistant Executive Engineer. Consequently, the Respondent No.5 proceeded to issue office order dated 01.04/05.2023 whereby the applicant’s pay was unilaterally revised. By the said office order, the Respondent No.5 also ordered that the applicant’s pay revision would be subject to an audit and excess payment, if any, would be recoverable by adjustment against future payment. It is submitted that the applicant is due to retire on his superannuation in January, 2024. The applicant relies on the judgment of the Hon’ble Supreme Court’s in State of Punjab and others vs. Rafiq Masih (White Washer) and others (2015) 4 SCC 334 and argues that the impugned order dated 14.11.2013 of the respondents directing recovery of alleged excess amount from the applicant along with penal interest is illegal and against the Hon’ble Apex Court Judgment. Therefore, it needs to be set-aside and all the reliefs claimed should be granted. The counsel for the applicant has also quoted various judgments in support of his arguments which are as follows: -