(made by ELIPE DHARMA RAO, J) This Writ Petition has been filed challenging the order dated 20.3.2006 passed by the Central Administrative Tribunal in O.A. No. 887 of 2005. The relief sought for by the applicant before the Tribunal was to quash the orders dated 23.8.2005 and 22.9.2005 passed by the Deputy Director, Directorate General, Doordarshan, New Delhi and the Station Engineer, Doordarshan Maintenance Centre, Hospet respectively and to direct the respondents therein to refund the recoveries made from the applicant along with interest at the rate of 18% per annum.
2. The case of the applicant is that while he was working as Senior Engineering Assistant in Doordarshan Kendra at Chennai, he was promoted as Assistant Engineer by order dated 24.4.1998 and was posted to LPT Gangavati, Karnataka and that on his representation, he was transferred to TVRC, Hospet by an order dated 10.02.1999 against which he filed W.P. No. 3512 of 1999 before this Court in which notice of motion was ordered with further direction to the respondents to pay his salary vide order dated 19.3.1999. It is the further case of the applicant that since the said direction was revoked by this Court by an order dated 04.9.2003, his payment was stopped from September 2003 onwards and he was allowed to join duty at Hospet only on 25.01.2005. While so, the Station Engineer, Doordarshan Maintenance Centre, Hospet, issued a show cause notice dated 23.3.2005 asking him to show cause as to why the salary paid for the period from 21.11.1998 to 31.8.2003 should not be recovered and subsequently, the Deputy Director, Doordarshan, New Delhi, by his order dated 23.8.2005 directed the Station Engineer to recover a sum of Rs. 10,32,918/- from the salary payable to the applicant till the retirement on 31.5.2006 and to permit him to withdraw GPF and pay the due and to delay his pension and forfeit the gratuity towards the dues based on which, the Station Engineer, Hospet passed the order dated 22.9.2005 impugned in the O.A.
3. The Department filed a reply statement before the Tribunal inter alia contending that the applicant was transferred by the Chief Engineer (South Zone), All India Radio and Television, Chennai, to LPT, Hospet as Senior Engineering Assistant due to non-availability of the said cadre at Chennai and though he was relieved on 20.11.1998, he neither reported for duty at LPT, Hospet nor applied for leave and hence, he was not paid salary. But, however, as per the directions of this Court, he was paid salary through the office of the Chief Engineer subject to the condition of regularisation of the period of absence and if the absence is not regularised, he would have to pay the amount back and the the same was communicated to him by memo dated 26.3.1999. It is further contended that inspite of repeated memoranda issued by the Station Engineer, Hospet, advising the applicant to report for duty, he did not join and according to the respondents, he had wilfully absented himself from duty ignoring all the memos and that by virtue of the revocation of the interim order of this Court, vide order dated 04.9.2003, the salary paid from 21.11.1998 was stopped in September 2003 and prayed for dismissal of the O.A.
4. Based on the above said pleadings, the parties were before the Tribunal. The Tribunal, after hearing the learned counsel for the parties and the materials placed on record and also following the decision of the Supreme Court in State of Rajasthan v. Mohammed Ayub Naz [2006 SCC (L&S) 175], found that the applicant refused to obey the order of transfer and was receiving salary without working, further holding that in the absence of any application for transfer or stay of the order of transfer, the failure of the applicant to report to duty in the transferred place is not acceptable and accordingly, dismissed the Application. Aggrieved by the said order, the applicant has filed the present writ petition.
5. Heard the learned counsel appearing on either side and carefully perused the materials placed before us.
6. Learned counsel appearing for the petitioner would first contend that only pursuant to the direction of this Court by order dated 09.3.1999, the petitioner was paid salary and, therefore, the orders of recovery of the said amount passed by the respondents without the liberty of this Court, that too, during the pendency of the writ petition, is illegal and arbitrary. He further submitted that no recovery can be made from the gratuity payable to the petitioner or from the General Provident Fund accumulation to the credit of the petitioner and hence, the order of the Deputy Director for effecting recovery from the GPF and gratuity is illegal.
7. In support of his contention, learned counsel relied on the decision of the Supreme Court in Collector of Madras v. K.Rajamanickam [1995 (2) SCC 98] wherein it was held that the period of service rendered after the date of superannuation under a wrong decision of court should not be counted but, however, the authorities were directed not to recover the amount paid. Therefore, he strenuously contended that the Tribunal completely ignored the evidence placed on record and came to a wrong conclusion, which is wholly unjustified.
8. Per contra, learned Senior Central Government Standing Counsel representing the respondents would reiterate the submissions made before the Tribunal and state that even after the interim order passed by this Court, was revoked by order dated 04.9.2003, the petitioner did not join in the transferred place immediately and joined only on 25.01.2005. He further submitted that only notice was ordered in the writ petition filed against the order of transfer but no stay was granted and he tried to justify the action of the respondents by passing impugned orders stating that the petitioner is not entitled for the salary without doing any work. It is the further submission of the learned counsel that the respondents adopted the settled policy of the Government as well as the Hon'ble Courts that 'No work No pay' in the case of the petitioner.
9. The fact remains that the date of order of transfer of the petitioner to Hospet from Chennai is 10.02.1999. Admittedly, the petitioner joined in the transferred place only on 25.01.2005. It is also not in dispute that the petitioner was paid salary pursuant to the direction of this Court vide order dated 09.3.1999 and the same was revoked by order dated 04.9.2003. Right or wrong, the petitioner has approached this Court with W.P. No. 3512 of 1999 challenging the order of transfer and this Court, on its own discretion, while ordering notice, directed payment of salary to the petitioner and only by virtue of that order, the petitioner was paid salary for the intermittent period. Therefore, it cannot be attributed that the petitioner received salary without any work. On the other hand, it should be taken in the other way that the respondents paid him in obedience of the order of this Court. It is to be noted that the respondents failed to take any steps for vacating the said order thereby allowed to continue the direction of this Court with regard to payment of salary to the petitioner for years together. While the Tribunal, accepting the contention of the respondents that the petitioner received salary without work and applying the principle of 'No work No pay", held that the respondents are entitled to recover the amount paid by way of salary for the intervening period, it failed to see that the payment was made only by virtue of the order of this Court.
10. Further, learned standing counsel representing the respondents relied on the judgment of the Supreme Court in State of Rajasthan v. Mohammed Ayub Naz [2006 SCC (L&S) 175]. That case pertains to disciplinary action initiated under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on a Government servant, who has been wilfully absent for a period of three years and hence, it was held that he has no right to receive the monetary benefits for the period for which he was absent. The said case has no applicability to the facts of the present case and we are of the view that the Tribunal also was not right in relying on the above said judgment.
11. At this juncture, it is relevant to refer to the recent decision of the Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others [2009 (3) SCC 475] and paragraph 57 of the judgment may be usefully extracted:-
Para 57: "This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments / allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay / allowance or on the basis of a particular interpretation of rule / order, which is subsequently found to be erroneous."
12. In the case on hand, it is not disputed that the salary was paid to the petitioner not on account of any misrepresentation of the petitioner as held by the Supreme Court. On the other hand, it was paid only as per the direction of this Court. That apart, when a direction was given by this Court, while ordering notice of motion, to pay salary to the petitioner, in the writ petition filed by the petitioner as against the order of transfer, it is implied that the learned Judge was aware of the fact that unless the order of transfer is stayed, he is not entitled to receive the salary and hence, it is to be presumed that the order of transfer was stayed. May be, that is why, the respondents have not challenged the same and allowed the said order to continue by paying the salary to the petitioner, for years together. More over, it is also to be noted that while revoking the direction to pay salary to the petitioner, this Court has not passed any order with regard to recovery of the same from the petitioner. In such a situation, it is not known as to how the official respondents started recovering the amount which was paid by way of salary as per the directions of this Court, by passing the impugned orders and the Tribunal, without any basis, ought not to have held that the official respondents are entitled to recover the payment already made consequent to the dismissal of the direction petition by this Court, that too, during the pendency of the writ petition and in the absence of any liberty given by this Court.
13. In view of the above discussion, the question of recovery of the amount, which was paid pursuant to the direction of this Court, does not arise and in our opinion, the Tribunal committed an error in holding that the respondents are entitled to recover the amount from the petitioner. Therefore, we find that the order of the Tribunal is not sustainable and liable to be interfered with.
14. It is stated by the learned counsel for the petitioner that the petitioner has retired from service on attaining the age of superannuation on 31.3.2006.
15. Accordingly, the Writ Petition is allowed and the impugned order of recovery passed by the official respondents as well as the order dated 20.3.2006 passed by the Central Administrative Tribunal in O.A. No. 887 of 2005 are set aside. In view of the submission made by the learned counsel that the petitioner has retired from service on attaining the age of superannuation, the respondents are directed to settle the terminal benefits of the petitioner within a period of three months from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected Miscellaneous Petition is closed.
gri To
1. The Registrar, Central Administrative Tribunal Madras Bench, Chennai 600 104.
2. Union of India rep. by its Secretary to Government Ministry of Information and Broadcasting New Delhi
3. Chief Executive Officer Doordarshan Bhavan Mandi House New Delhi
4. Deputy Director Directorate General Doordarshan New Delhi
5. The Chief Engineer (South Zone) All India Radio and Television Swami Sivananda Salai Chennai
6. The Director Doordarshan Kendra Chennai
7. Station Engineer Doordarshan Maintenance Centre Hospet