Full Judgment
(iii) To grant such other reliefs as may be prayed for and the Tribunal may deem fit to grant.
2. According to the applicants all operative staff of the department, to which category the applicants belong, were eligible for overtime allowance as per the orders in force and till July, 1996 first respondent was allowing night weightage at the rate of 20 minutes for every one hour between 20 hrs and 6 hrs and overtime allowance was being paid accordingly. From August, 1996 onwards they were paid overtime allowance taking into account night weightage of 10 minutes per hour between 22 hrs and 6 hrs on the basis of A-2 letter dated 1.8.96. All of a sudden A-1 circular was issued. They contend that the same was issued following the audit report of the Accountant General (Audit) on the basis of A-2 letter dated 1.8,96. According to them the recovery of Overtime Allowance (OTA for short) had been done without giving notice and obtaining a reply and hence against the principles of natural justice and as such the same was arbitrary and illegal.
Recovery of amount paid 13 years back due to incorrect application of the orders was illegal as per the decision of the Hon' ble Supreme Court in Shyambabu Verma and Ors. v. Union of India and Ors. (1994) 2 SCC 521 = 1994(2) SLJ 99 (SC). The retrospective application of recovery of the excess OTA paid to the applicants was barred by the law of Limitation. The OTA paid to the applicants were part of the merchant overtime collected from the concerned public for attending to their work and as such there was no loss to the Government. The order dated 4.10.89 changing the definition of night duty from 20 hrs to 6 hrs to 22 hrs to 6 hrs and also reduction in weightage from 20 minutes to 10 minutes per hour was given retrospective effect from 1.1.86 and the same was illegal and arbitrary.
3. Respondents filed reply statement resisting the claim of the applicants. According to them, as per the recommendations of the Fourth Central Pay Commission on the weightage of night duty admissible for claiming OTA, in respect of the operative staff uniform weightage of 10 minutes was prescribed for every hour of night performed and the night duty was defined as duty performed between 2200 hours and 6 hours.
Prior to the above night duty weightage was @ 10 minutes per hour for the duty performed between 20 hours and 22 hours and @ 20 minutes per hour for hours between 22 hours and 6 hours. As the instructions dated 4.10.89 of the DOPT were not received in Cochin Customs House, the same could not be acted upon. Non-receipt of the said instructions led to incorrect application of night duty weightage for the purpose of claiming OTA by the operative staff since 1.1.86 and this resulted in excess payment of OTA w.e.f. 1.1.86. By A-2 letter dated 3.8.96 [which was also enclosed with the reply statement as Annexure Rl(C)]. Ministry of Finance, the instructions issued by the DOPT order dated 4.10.89 were again brought to the notice of the Heads of Department in Central Board of Excise & Customs and directed the instructions therein be complied with. On receipt of these instructions payment of OTA to the operative staff was regulated in conformity with the said orders.
During the local audit of accounts and registers by the Accountant General (Audit) from 20.1.98 to 23.1.98 the excess payment of night duty allowance due to incorrect application of night duty weightage during the period from 1.1.86 to July, 1996 was brought out in the Inspection Report and the total amount of OTA paid in excess was estimated as Rs. 28 lakhs (approxs) and suggested recovery of the excess paid amount from the individuals concerned. While working out the excess payment made during this period from about 250 employees involved, by R-l (A) letter dated 14.10.1999, the Accountant General (Audit) reported the matter to the Secretary, Govt. of India, Ministry of Finance, copy endorsed to the Commissioner of Customs suggesting conversion of the audit observation into 'Draft Audit Paragraph' to be included in the Report of Comptroller and Auditor General of India for the year ended 31.3.99. By inclusion in the report the department was liable to be held responsible for non-compliance of the Government of India orders and loss of revenue to the extent of Rs. 28 lakhs. As the matter was serious and as the Department had no option, it was decided to recover the excess amount paid in easy monthly instalments without causing financial hardship to the affected employes from the salary of October, 1999 onwards. As it was not feasible to intimate all the affected persons individually and Administrative Circular No. 24/99 dated 21.10.99 proposing recovery of excess of OTA paid was issued for the information of all concerned. Copy of the circular was also endorsed to all Service Associations functioning in the Custom House for information. Though the applicants were not informed individually regarding the recovery of excess of paid OTA the fact remained that the issue had been made known to all concerned by the above action of the department and that the amount recovered towards excess OTA paid, from the salary of October, 1999 was ranging from Rs. 50/- to Rs. 450/depending upon the grades of individual concerned including the applicants. The instructions contained in the Ministry's order dated 1.8.96 were only reiteration of DOPT's order dated 4.10.89 and not a clarificatory order as contended by the applicants. It was further submitted that when orders were received in the Custom House, the OTA bills for July, 1996 pertaining to Superintendents of Customs (Preventive) and Preventive Officers were under scrutiny by the Pay and Accounts Office in the Custom House and the Pay and Accounts Office suggested reworking of the OTA bills based on the Ministry's order dated 1.8.96. But as it involved too much of work and many corrections, the bills were passed for payment on an assurance by the department concerned that the payment of excess amount involved for the month would be recredited to the Govt. Accordingly an amount of Rs. 11940/- being the excess paid amount was recredited. Thereafter the claim for payment of OTA by the operative staff including the applicants was restricted in accordance with the orders dated 1.8.96 issued by the Ministry of Finance. Though a formal standing order was not issued the fact was that the entire operative staff were aware of the instructions contained under Govt. of India orders dated 1.8.96. The entire amount collected from the Trade towards OTA charges was not reimbursed to the staff but a portion of the charges collected was alone paid as OTA.This could not be treated as a gain to the department when expenses incurred by the department such as pay and allowances, welfare makers and pensionary liability of Government employee were taken into account. By excess payment of OTA to operative staff from 1.1.86 to 7/96, the officials had been unduly benefitted to the extent of Rs. 28 lakhs and the said amount was proposed to be recovered from them as per orders on the subject. They having accepted the pay revision from 1.1.1986 it was not open to them to selectively challenge one part for the retrospectivity. The Law of Limitation would not apply in far the recovery of over payments made to the Government servants is concerned.
In terms of Rule 38 of the General Financial Rules, 1963 read with Rule 17 of the delegation of Financial Power Rules 1978 and Govt. of India's decision A-1(B) dated 16.2.52 every over payment of money to a public servant was regarded as a debt owed to the public and all possible action should be taken to recover it. The Government policy would be to enforce recovery in all case where it was possible and where the Government servant was not clearly entitled to the money in question even after it had been drawn in good faith. Four of the applicants were officers in Gazetted rank and recovery relating to them could not be waived under the above instructions.
4. Applicants filed rejoinder and respondents filed additional reply statement.
5. Heard learned Counsel for the parties. The learned Counsel for the applicants mainly relied on the judgment of the Hon'ble Supreme Court in Shyam Babu Verma and Ors. v. Union of India and Ors. (supra) and the Hon'ble High Court of Kerala in Satyapalan v. Deputy Director of Education, 1998(1) KLT 399.
6. I have given careful consideration to the submissions made by the learned counsel for the parties and the rival pleadings and have perused the documents brought on record.
7. I find that the applicants have no case that they have not received excess OTA. They have also no case that the said amounts are legitimately due to them. Their main case is that the respondents could not recover the over-payment received by them on account of various grounds. Let me examine the grounds by the applicants one by one.
8. The first ground raised was violation of the principles of natural justice as recovery of overtime allowance had been ordered without giving notices and obtaining replies. According to the respondents, Administrative Circular No. 24/99 was issued as the number of employees affected by the correct implementation of the orders of night duty weightage was 250 every month and it was not feasible on the part of the department to issue notice to individual before the recovery was made.
9. A-impugned order is the Administrative Circular No. 24/99. The same reads as under: Sub : Excess payment of Overtime allowance due to incorrect application of night duty weightage during the period from January, 86 to July, 96--Recovery of excess payment from the salary of October, 99 onwards--Reg.
It is brought to the notice of all concerned that overtime allowance has been paid in excess due to incorrect application of night duty weightage, during the period from January, 1986 to July, 1996 to the Operative staff of this Custom House, viz. Superintendents of Customs (Prev.), Appraisers, Prev. Officers, Examiners, Havildars, Sepoys and Launch Staff. The omission in this regard was pointed out by the Accountant General (Audit), Thiruvananthapuram in his Audit Report for the year 1997 and in order to regularise the excess payment already made, it has been decided to recover the excess paid overtime allowance from the individuals concerned from the salary of October, 99 onwards in installments. The correct amount to be recovered is being worked out and will be intimated in due course.
However, the amount for the month of 2 or 3/96 drawn on 4/96 was worked out and the same is being deducted in the salary of October, On going through the above I find that it is clearly a notice of the proposed recovery in the form of a circular. The reasons for the recovery had been stated therein. It is also stated that, the amount would be worked out in due course. The immediate recovery being effected was only the excess OTA paid for the month of February/March, 1996 drawn in April, 1996 and the same was furnished in the list enclosed with the circular. From these facts it cannot be stated that there was no notice as far as the recovery of over paid OTA for the period from 1.1.1986 to January, 1996 is concerned. From the averments in the OA I do not find that the applicants have a case that the amount worked out as excess payment was wrong. Even in reference to the basic decision of recovery for the period from January, 1986 to July, 1996 no representation had been submitted by them to the appropriate authority.
Further I find that the grounds on which the applicants are seeking the reliefs for not making the recovery of the excess payment paid to them from 1/86 to 7/96 have been incorporated in the O.A. and on the basis of the interim orders of this Tribunal, given at the time of admission on 29.10.99, A-1 order in respect of recovery of OTA paid to the applicants had not been given effect to. So I am of the view that a present when this O.A. is being decided after a lapse of about two years when the pleas of either side are before this Tribunal and after hearing both the parties it cannot be stated that the applicants have suffered any prejudice even in respect of the recovery of the OTA of 2/3 of 96 drawn in 4/96. Accordingly, I reject this ground.
10. According to the applicant recovery of excess amount paid years back was barred by the Law of Limitation. According to the respondents, the Law of Limitation does not apply in so far as recovery of over payment made to Government servants are concerned. In support of this they have produced OM dated 16.2.52 of Government of India, Ministry of Finance as Annexure R-1(B). From R-1(B) it is clear that an over payment made to a public servant is to be treated as a debt owned to the public and all actions should be taken to recover the same. I find considerable force in this argument of the respondents. Hon'ble Supreme Court in Nav Rattanmal and Ors. v. State of Rajasthan, AIR 1961 SC 1704, had upheld the special provision made in the Limitation Act for Government to enforce its claim against a private individual. In the light of the above I reject the ground of limitation advanced by the applicants.
11. The next ground put forth by the applicants is that the OTA paid to the applicants were part of the merchant overtime collected from the concerned public for attending to their work and as such there is no loss to the Government. The applicants have no case that they are paid the entire quantum of amount collected from the merchants as OTA. They are entitled to get OTA only in accordance with the instructions of the Government of India, they being Government Servants. Further, all receipts of Government have to necessarily go into the Consolidated Fund of India and any expenditure from the same is to be an authorised one as voted by the Parliament. Therefore this ground of the applicants is only to be rejected and I accordingly do so.
12. The next ground advanced by the learned counsel for the applicants was that the order dated 4.10.89 changing the definition of night from 20 hrs to 6 hrs. to 22hrs. to 6hrs and also reduction in weightage from 20 minutes to 10 minutes per hour retrospectively w.e.f. 1.1.1986 as arbitrary. In the rejoinder they relied on the judgments of the Hon'ble Supreme Court in Ramendra Singh v. Jagadish Prasad, 1984 SLR 520=1984(1) SLJ 382 (SC) and Ex. Capt. K.C. Arora v. State of Haryana, 1984(2) SLR 97=1984(2) SLJ 54 (SC). After going through the judgments of the Hon'ble Supreme Court cited by the learned counsel for the applicants I find that the facts and circumstances of those cases do not apply to the facts of this case. The recommendations of the Fourth Pay Commission revising the pay scales of Govt. servants were effective with retrospective effect from 1.1.1986. Having accepted the revised pay scales w.e.f. 1.1.1986 the applicants cannot turn around and challenge laying down rules for the payment of OTA with effect from the same date. In any case the order dated 4.10.89 is not under challenge before me in this O.A. Therefore, this ground is rejected.
13. The next ground on which the applicants assail the action of the respondents is the judgment of the Hon'ble Apex Court in Shyam Babu Verma and Ors. v. Union of India and Ors. (supra). According to the learned counsel for the applicants the applicants in this case received OTA due to no fault of theirs and hence in accordance with the dictum laid down by the Hon'ble Supreme Court in the above cited case, the respondents action in proposing to recover the excess amount already paid to them was illegal and against all canons of law. The learned counsel for the applicants also relied on the judgment of the Hon'ble High Court of Kerala in Satyapalan v. Deputy Director of Education (supra). I find that in Shyam Babu Verma's case there were three petitioners who were working as Pharmacists in the Northern Railway Central Hospital in the scale of Rs. 330-560 from January, 1973, Hon'ble Supreme Court held "Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January, 1973 and only after a period of 10 years they became entitled to the pay scale of Rs. 330-560, but as they have received the scale of pay of Rs. 330-560since 1973 due to no fault of theirs and that the scale is being reduced in the year 1984 w.e.f. January, 1973 it shall only be just and proper not to recover any excess amount which had already been paid to them. Accordingly, we direct that no steps be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same. "In the judgment of the High Court of Kerala cited by the applicants there were two petitioners whose pay was fixed taking into account their temporary service as High School Assistants on their subsequent promotion from a regular post of Primary teacher. However, the Hon'ble Supreme Court in V. Gangaram v. Regional Joint Director and Ors., 1997(6) SCC 139, and Union of India and Anr. v. R. Sarangapain and Ors., 2000 SCC (L & S) 647, held that recovery of payments made to the Government Servants due to mistake or even on the basis of this Tribunal's order which was subsequently set aside by the Hon' ble Apex Court could be made. In the former case, Hon'ble Supreme Court directed recovery of over payment even from Pension while in the latter case recovery of over payment only from retired persons was directed not to be made. Further in Comptroller and Auditor General of India and Ors.
v. Farid Sattar,Union of India and Ors. v. Sujatha Vedachalam (Smt) and Anr., 2000 SCC (L&S) 882, which were also cases challenging the orders of refixation of pay and consequent recovery of excess payment made to the respondents, the Hon'ble Apex Court after upholding the refixation of the pay of the respondents did not interfere with the recovery of excess payment. Thus the position that emerges from the various judgments of the Hon'ble Supreme Court is that the Hon'ble Apex Court had dealt with the issue on the merits of each case. Therefore the issue to be settled in this case is whether the applicants are entitled for the reliefs sought for.
14. In this case the applicants admit that they received the excess OTA due to incorrect of orders by the respondents. According to the reply statement as the orders dated 4.10.1989 were not received in Cochin Customs House, the same could not be applied. The total overpayment involved in the case of about 250 employees including the applicants is stated as about Rs. 28 lakhs. It is evident from the pleadings and documents before me that there is no mistake from the side of the second respondent-the Union of India. It had issued orders on 4.10.89 as to how the payment of OTA is to be regulated. There can be no dispute that both the first respondent and the applicants are Government servants which in effect means that both are the servants of the second respondent. The issue before me is whether for the act of omission or commission of one servant which has benefitted another group of servants both being the servants of the second respondent, the second respondent-in this case the people of India should suffer. As already brought out by me, the Hon'ble Apex Court had decided such cases on the facts and circumstances obtaining in each case. In this case, the applicants four of whom are Group-B Gazetted officers have admittedly received excess payment of OTA clearly against the Government of India orders. If interfered with by this Tribunal as sought for by the applicants the same would result in public money getting spent not in accordance with the Governments orders and as a corollary result in undue benefit to the operative staff of Cochin Custom House alone as the applicants have filed this OA not seeking reliefs for themselves alone. The OA is more in the nature of a public interest litigation, though if the reliefs as prayed for are granted the same will result in benefits to private individuals. The same will also result in discrimination between operative staff of Cochin Custom House and other Customs Houses. Further I am of the view that such an interference would send wrong signals to the unscrupulous elements if any among the servants of the second respondent.
15. In addition, on a specific query, learned Counsel for the applicants submitted that it was on the basis of claims made by the applicants that OTA was being paid. Thus it cannot be stated that the applicants were not at all responsible for the overpayments.
16. Apart from the above nothing has been brought out in the OA to substantiate that the proposed recovery would cause undue hardship to the applicants, except that they had paid income tax on the amounts so received and recovery of OT paid would amount to double punishment. I find that OTA amount is not proposed to be recovered. What is proposed to be recovered is only the excess OTA paid and this can in no way be treated as double punishment. Hence I do not find any reason to interfere with A-1 impugned order.
17. In the light of the detailed analysis given above, I hold that the applicants in this Original Application are not entitled for the reliefs sought. Accordingly I dismiss this Original Application with no order as to costs.