The claim petition is hereby allowed. The PPO dated 08.01.2014, Annexure no.1 to the claim petition is quashed to the extent it provides for a reduction in pay from 07.10.2008. The O.P.No.3 is directed to issue a fresh PPO on the basis of the pay which the petitioner was actually getting on the date of retirement. The opposite parties are further directed that if any amount alleged to have been paid in excess to the petitioner on account of wrong fixation of pay w.e.f. 07.10.2008, has been adjusted or recovered from the petitioner then the same be paid to the petitioner. The compliance of the said judgment and order be made within three months from the date of receipt of certified copy of this judgment.
No order is made as to costs."
The order dated 24.11.2016, passed by the Tribunal has been challenged before this Court by means of the present writ petition.
Sri Pankaj Nath, learned counsel for the petitioners while challenging the impugned judgment and order dated 24.11.2016 submitted that the petitioners are not going to recover the amount, which has already been paid to the respondent, in view of the law laid down by the Apex Court in the case of State of Punjab & others Vs. Rafiq Masih[White Washer] & others [2015] 4 SCC 334.
Sri Pankaj Nath, learned counsel for the petitioners further argued that so far as the directions given by the Tribunal that the fixation of the post retiral dues etc. should be done on the basis of the last salary drawn by the respondent at the time of retirement is concerned, the same is wholly incorrect and wrong and being so is liable to be interfered. Prayer is to allow the writ petition.
In this regard, Sri Pankaj Nath, learned counsel for the petitioners has placed reliance on the following grounds:-
"(D). Because the learned Tribunal has allowed the claim petition and without there being any prayer for quashing the fresh pay fixation order dated 25.04.2014, the impugned judgment and order has been passed on 24.11.2016.
(E). Because the judgment and order of the learned Tribunal is illegal and erroneous and without jurisdiction, in as much as, the fresh pay fixation order had not been challenged by the opposite party and without there being any challenge to the same, the same could not have been unsettled.
(F). Because though in the operative portion of the judgment and order, there is no mention that the order dated 25.04.2014 is being quashed but the effect and intention of the operative portion is clearly eclipsing the order dated 25.04.2014.
(G). Because Placitum No. 2(c) of the Government Order dated 13.12.1997 does not put a complete ban on examination of records pertaining to emoluments more than 34 months prior to the date of retirement as expressed is that it should not be done generally."
Sri Akash Dikshit, learned counsel for the claimant-respondent while rebutting the contentions as raised by the learned counsel for the petitioners submitted that there is no irregularity and infirmity in the judgment and order dated 24.11.2016, passed by the Tribunal, thereby directing the petitioners/employer to fix the post retiral dues on the basis of the last salary drawn by the employee at the time of retirement. This is in view of the Government Order dated 16.01.2007 bearing No.S-3-35/10-07-101(6)/2005, the same reads as under:-
"la[;k&lk&3&[email protected]&07&101¼6½@2005 izs"kd] Jh 'ks[kj vxzoky izeq[k lfpo foRr mRrj izns'k 'kkluA lsok esa leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] mRrj izns'kA foRr ¼lkekU;½ vuqHkkx&3 y[kuÅ% fnukad% 16 tuojh] 2007 fo"k; % isa'ku izkf/kdkj&i= dks fuxZr djus ds fy;s izkf/kd`r vf/kdkjh }kjk isa'ku izi=ksa dh tkap djrs le; lsokfuo`Rr deZpkjh ds osru fu/kkZj.k dh lafujh{kk dh vof/k dk fu/kkZj.kA egksn;] eq>s ;g dgus dk funsZ'k gqvk gS fd le;≤ ij ;g iz'u mBk;k tkrk jgk gS fd isa'ku izkf/kdkj&i= fuxZr djus ds fy, izkf/kd`r vf/kdkjh }kjk isa'ku izi=ksa dh tkap djrs le; lsokfuo`Rr deZpkjh ds osru fu/kkZj.k dh lafujh{kk fdl lhek rd dh tk,A bl fo"k; ij fiNyh ckj tks 'kklukns'k la[;k&lk&3&[email protected]&[email protected] Vh0lh0] fnukad 05 fnlEcj] 2001 dks tkjh fd;k x;k gS mlesa fuEukafdr O;oLFkk gS %& **;fn ljdkjh lsod ds vfUre 10 ekg ds iwoZ fdlh vof/k es xyr osru fu/kkZj.k ifjyf{kr gksrk gS] ftlds dkj.k jkT; ljdkj dks foRrh; {kfr gqbZ gS rks jkT; ljdkj dks foRrh; {kfr ls cpkus ds mn~ns'; l]s ml rF; dh tkudkjh mlds dk;kZy;k/;{[email protected]/;{k ls djk;k tk; vkSj dk;kZy;k/;{[email protected]/;{k }kjk vko';d dk;Zokgh djkus ds mijkUr gh lqlaxr fu;eksa ds vUrxZr ijh{k.kksijkUr izkf/kdkj i= fuxZr fd;k tk,A** **isa'ku izdj.kksa ds fuLrkfjr djrs le; 'kklu ds fgrks dk fo'ks"k /;ku vo'; j[kk tk, vkSj ;g lqfuf'pr fd;k tk, fd 'kklu dks fdlh Hkh fLFkfr esa foRrh; {kfr u gksA** 2- 'kklu Lrj ls fuxZr mijksDr vkns'kksa ds vk/kkj ij isa'ku izkf/kdrkZ vf/kdkjh }kjk lsok&fuo`Rr deZpkjh dh dsoy lsok&fuo`fRr ds iwoZ ds 10 eghuksa dh ifjyfC/k;ksa dh gh ugh] cfYd lsok [email protected][kksa ds vk/kkj ij fnukad 01-01-86 ls iqujhf{kr osruekuksa es osru fu/kkZj.k ls ysdj vkxs le;≤ ij gq;s osru fu/kkZj.k dh lafujh{kk Hkh dh tk jgh gS] ftlls isa'ku izkf/kdkj&i= fuxZr djus esa foyECk gksus ds vykok dfri; vU; dfBukb;ka Hkh izdk'k esa vk;h gSA 3- vf/ko"kZrk isa'ku vkSj e`R;q rFkk lsokfuo`fRr vkuqrksf"kd dh vnk;xh esa gksus okys foyEc vkfn dks nwj djus ds mn~ns'; ls dk;Z&fof/k dk ljyhdj.k fo"k; ij foRr foHkkx }kjk fuxZr 'kklukns'k la[;k&lk&3&[email protected]&[email protected] fnukad 13 fnlEcj] 1977 ds izLrj&2 ds mi izLrj&2 ¼x½ dk fuEukafdr va'k fo'ks"k :i ls voyksduh; gS %& **bl dk;Z esa dsoy vkSlr ifjyfC/k;kas ds fy;s xf.krkRed (Arithmetical) lax.kuk gh vUrxzLr ugh gS cfYd ifjyfC/k;ksa dh lR;rk dh tkap Hkh djkuh gksxhA ifjyfC/k;ksa dh lR;rk LoHkkor% bl ckr ij fuHkZj djsxh fd bl nl ekg dh vof/k ds vkjEHk gksus okyh igyh rkjh[k dks izkIr ifjyfC/k;ka Hkh lgh gksaA ijUrq igys dh ifjyfC/k;ksa dh lR;rk dh tkap] pkgs isa'ku ds dkxt] rS;kj djus okys dk;kZy; esa gksa vFkok ckn esa isa'ku vnk;xh vkns'k tkjh djus ds fy;s ftEesnkj dk;kZy; es gks] xgjh Nku&chu gsrq dkQh ihNs tkus dk volj ugh gksuk pkfg;s] de ls de mruh tkap dh tkuh pkfg;s tks vfuok;Z :i ls vko';d gSA fdlh Hkh fLFkfr esa mDr tkap lsok&fuo`fRr dh rkjh[k ls iwoZ ds 34 eghus dh vof/k ls vf/kd vof/k ds laca/k esa djus dh vkko';drk lk/kkj.kr;k ugh gksuh pkfg;sA** 4- 'kklu ds mijksDr vkns'k vHkh rd izHkkoh gS ijUrq laanfHkZr 'kklukns'k fnukad 05 fnlEcj] 2001 esa fn;s x;s funsZ'kksa dks ns[krs gq;s isa'ku izkf/kdrkZ vf/kdkjh fnukad 01-01-86 ls iqujhf{kr osruekuksa es osru fu/kkZj.k rd dh tkap Hkh djus yxs gSa] ftlls isa'ku izkf/kdkj&i= fuxZr djus es foyEc gksrk gSA vr% bl laca/k esa lE;d~ fopkjksijkUr jkT;iky egksn; }kjk fuEukafdr vkns'k iznku fd;s x;s gSa %& ¼1½ mDr lanfHkZr 'kklukns'k] fnukad 13 fnlEcj] 1977 ds mijksDr izko/kku ds gh vuqlkj isa'ku LohdrkZ vf/kdkjh }kjk isa'ku Lohd`fr gsrq lsokfuo`fRr dh rkjh[k ls 10 ekg iwoZ dh ifjyfC/k;ka rFkk mlds 02 o"kZ vFkkZr dqy 34 eghus dk fjdkMZ gh ns[kk tk;sxkA ¼2½ isa'ku Lohd`fr vf/kdkjh dk fdlh deZpkjh ds lsokdky esa osru ds fu/kkZj.k esa =qfV dks Bhd djkus dk nkf;Ro mijksDr ¼1½ esa fu/kkZfjr lhek ls vf/kd ugh gksxkA osru&fu/kkZj.k dh =qfV;ksa dks deZpkjh ds lsokjr jgrs gq;s gh lkekU; [email protected] ds ek/;e ls nwj fd;s tkus dh O;oLFkk dks izHkkoh 5- d`i;k mi;ZqDrkuqlkj vko';d dk;Zokgh lqfuf'pr djus rFkk djkus dk d"V djsa] ftlls fd Hkfo"; esa isa'ku Lohd`r fd;ss tkus esa foyEc u gksA Hkonh;
'ks[kj vxzoky izeq[k lfpo] foRr"
Sri Akash Dikshit, learned counsel for the respondent further submitted that according to Government Order dated 16.01.2007 the mistake committed in pay fixation beyond period of 34 months prior to retirement of the appellant could not have been taken into account by the respondent employer and therefore, neither any recovery could have been sought by the respondents nor there could have been any reduction in the pension on the basis of reduction of salary. In this regard, he has placed reliance on the judgment of the Apex Court dated 17th April, 2014 in Civil Appeal No. 5262 of 2008 (Sushil Kumar Singhal v. Pramukh Sachiv Irrigation Department and others), wherein the Apex Court held as under:-
"5. It had been submitted by the learned counsel appearing for the appellant employee that the impugned judgment delivered by the High Court is incorrect for the reason that the High Court did not consider the G.O. dated 16.1.2007 bearing No.S-3-35/10-07-101(6)/2005 which reads as under:
"[1]. Pension Fixation Authority shall inquire into emoluments of only last 10 months prior to retirement and for that examine the records of only two years prior thereto i.e. only the records of 34 months would be examined for the purpose of grant of pension, as has been provided in the aforesaid Government order dated 13.12.1977.
[2]. Pension Allowing Authority shall not be entitled to correct the mistake in determining the pay during service tenure beyond the period prescribed in para (1) above. Mistakes in pay determination of an employee can be effectively removed through the process of general inquiry/audit only when the employee is still in service."
6. It had been submitted by the learned counsel that the appellant had retired on 31st December, 2003 and somewhere in the month of March, 2005 it was revealed that a mistake had been committed while fixing pay of the appellant in 1986. It had been further submitted that by virtue of the aforestated G.O. dated 16th January, 2007, the mistake committed in pay fixation beyond period of 34 months prior to retirement of the appellant could not have been taken into account by the respondent employer and therefore, neither any recovery could have been sought by the respondents nor there could have been any reduction in the pension on the basis of reduction of salary.
7. Upon perusal of the aforestated G.O. and the submission made by the learned counsel appearing for the appellant, it is not in dispute that the appellant had retired on 31st December, 2003 and at the time of his retirement his salary was Rs.11,625/- and on the basis of the said salary his pension had been fixed as Rs.9000/-. Admittedly, if any mistake had been committed in pay fixation, the mistake had been committed in 1986, i.e. much prior to the retirement of the appellant and therefore, by virtue of the aforestated G.O. dated 16th January, 2007, neither any salary paid by mistake to the appellant could have been recovered nor pension of the appellant could have been reduced.
8. The learned counsel appearing for the respondent employer could not deny any of the facts stated hereinabove.
9. In the aforestated circumstances, the High Court was not correct while permitting the respondent authorities to reduce the pension payable to the appellant by not setting aside the order whereby excess amount of salary paid to the appellant was sought to be recovered.
10. For the aforestated reasons, we quash the impugned judgment delivered by the High Court and direct the respondents not to recover any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant.
11. The submission made on behalf of the learned counsel appearing for the respondent that the appellant would be getting more amount than what he was entitled to cannot be accepted in view of the policy laid down by the Government in G.O. dated 16th January, 2007. If the Government feels that mistakes are committed very often, it would be open to the Government to change its policy but as far as the G.O. dated 16th January, 2007 is in force, the respondent-employer could not have passed any order for recovery of the excess salary paid to the appellant or for reducing pension of the appellant.
12. For the reasons recorded hereinabove, we quash and set aside the impugned judgment as well as the order dated 23.03.2005 whereby salary of the appellant was re-fixed and order dated 23.04.2005 whereby recovery of excess amount of Rs.99,522/- was ordered to be recovered from the appellant. The appellant shall be paid pension which had been determined at the time of his retirement, i.e. immediately after 31st December, 2003. The appeal is disposed of as allowed with no order as to costs."
Reverting to the facts of the present case, it is not in dispute between the parties that in pay fixation the mistake was committed on 07.10.2008 and the date of retirement of the respondent is 31.03.2014 and the mistake committed in pay fixation on 07.10.2008 was taken into account while issuing the P.P.O. dated 08.01.2014 and the pay of the respondent was reduced for the purposes of payment of retiral dues and thereafter the order of recovery was issued and in view of the Government Order dated 16.01.2007. The mistake committed in pay fixation beyond period of 34 months prior to retirement of the appellant could not have been taken into account by the respondent employer and therefore, neither any recovery could have been sought by the respondents nor there could have been any reduction in the pension on the basis of reduction of salary.
Needless to mention herein that the petitioners have not placed any Government Order by which the Government Order dated 16.01.2007 has been superseded.
Thus, taking into consideration the pleadings before the Tribunal and findings given by the Tribunal while passing the order dated 24.11.2016 and keeping in view the Government Order dated 16.01.2007 as well as the judgment of the Apex Court in the case of Sushil Kumar Singhal (supra), wherein the Government Order dated 16.01.2007 has been considered by the Apex Court, we do not find any irregularity and infirmity in the impugned judgment and order dated 24.11.2016, passed by the Tribunal.
Accordingly, the writ petition for it lacks merit. Hence, dismissed.
Order Date :- 27.11.2019 Vinay/-