An employee cannot seek to overturn a recovery from dues if they knowingly provided consent for the recovery and were involved in the pay fixation process.

ORDER

Per: SURESH KUMAR BATRA MEMBER (J):-

1. The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-

(i) Quash the letter / Order dated 4.7.2016 (Annexure A-1) to the extent while sanctioning pension to the applicant, an endorsement has been made that a recovery of Rs.2,31,843/- is to be made from her leave encashment and order dated 1.8.2019 (Annexure A-1/1), vide which the representation filed by applicant against recovery has been rejected only on the ground that the applicant had given an undertaking for making recovery from her, which is illegal and arbitrary, discriminatory, violative of principles of natural justice, harsh and law declared by Hon'ble Apex Court of the country including decision of Hon'ble Central Administrative Tribunal, Ernakulam Bench, in O.A. No. 180/00470/016 (T.Vijayan Vs. Unionof India & others), of All India Radio, in which similar undertaking was held to be of no use and recovery was quashed and set aside.

(ii) Issue directions to the respondents to release the leave encashment of the applicant without any recovery along-with interest @ 12% per annum from the date the amount became due to the actual date of payment in pursuance of law settled by Hon'ble Supreme Court.

2. The facts of the case, in brief, are that the applicant was working as Head Clerk in the respondent department and was drawing pay in the scale of Rs.5500–9000. The pay scales of Head Clerk/Assistant/Stenographers Grade-II carrying the scale of Rs.5500– 9000 were upgraded to Rs.6500–10500 with Grade Pay of Rs.4200 with effect from 01.01.2006 vide letter dated 03.10.2012 issued by the Directorate General, AIR, New Delhi. Consequent upon the implementation of the Sixth Central Pay Commission, the said scale was revised to Pay Band Rs.9300–34800 with Grade Pay of Rs.4200 and the pay of the applicant was fixed. Vide order dated 18.04.2012 (Annexure A-2), by taking her existing basic pay of Rs.6550 as on 01.01.2006, multiplying it by the fitment factor of 1.86, arriving at Rs.12190 and thereafter granting one increment, resulting in pay of Rs.17410. The pay was again re-fixed vide order dated 02.04.2013 (Annexure A-3). Both these orders were issued by the respondents themselves and were acted upon.

3. Subsequently, objections were raised by the department regarding fixation of pay of employees and proposals for recovery were initiated. One similarly situated employee challenged such recovery in O.A. No.310/01119/2015 titledA.S. Rajagopal Vs. Union of India & Others, which was allowed on 17.08.2015 (Annexure A-4) by holding that recovery was impermissible in view of the law laid down by the Hon‟ble Supreme Court inState of Punjab & Others Vs. Rafiq Masih (White Washer) & Others, (2015) 4 SCC 334 . Thereafter, the respondent department issued letter dated 29.10.2015 (Annexure A-5) stating that the earlier instructions granting minimum of the upgraded scale were not in accordance with CCS (Revised Pay) Rules, 2008, followed by further instructions dated 31.12.2015 (Annexure A-6) regarding fixation by applying the fitment factor of 1.86.

4. In pursuance thereof, the pay of the applicant was reduced and re-fixed vide order dated 15.02.2016 (Annexure A-7) at Rs.16390 instead of Rs.17410 and recovery of Rs.2,31,843 was ordered to be made from her leave encashment. At that time, the applicant was due to retire on 30.06.2016 and her pension papers were forwarded on 22.04.2016. The applicant submitted a representation dated 19.07.2016 (Annexure A-10) pointing out that in view of DoPT O.M. dated 02.03.2016