Jammu, Feb 21: In Transfer Application No. 6402/2021 titled Pankaj Jasrotia, who was represented by Advocate: -Mr. F. A. Natnoo Versus State of Jammu & Kashmir through Chief Secretary, J&K Government, & others after hearing CAT ordered as under:-
Per: - Rajinder Singh Dogra, Judicial Member: 1. The SWP/WP(C) No. 2148/2011 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/6402/2021 by the Registry of this Tribunal.
2. The present matter was filed before the Hon’ble High Court with following prayer: a) “Allow this writ petition of the petitioner; b) Issue a writ of certiorari to quash communication No.PNRJ- 1A/114598/2007-08/821-23 dated 8-11-2007 issued by the respondent No.4 through Senior Accounts Officer whereby while communicating the authorization of pensionary benefits in favour of the petitioner gratuity amount of Rs.70,000/- payable to the deceased petitioner has been withheld. c) By issuance a writ of mandamus commanding the respondents to release un-paid gratuity amount payable to the deceased father of the petitioner to the petitioner along with interest @ 24% per annum and also to pay the difference of the amount of monthly pension paid to the father of the petitioner and that of the deceased father of the petitioner was entitled to. d) Any other writ, order, command or direction which the Hon’ble Court may deem just and proper in the given facts and circumstances of the case may also be granted in favour of the petitioner.”
3. The facts of the case as averred by the petitioner in his pleadings, are as follows: - a) The petitioner is a citizen of India and a permanent resident of the State of Jammu & Kashmir. The petitioner invokes the extraordinary writ jurisdiction of the Hon’ble Court, alleging an illegal, unconstitutional, and arbitrary action by the respondents in withholding a gratuity amount of Rs. 70,000/- and the wrongful fixation of the pension of the petitioner’s deceased father, Shri Ragubhir Singh. b) The petitioner's father was appointed as a Constable in the Police Department in 1962 and served an unblemished tenure before retiring as a Sub-Inspector on 30-11-2001. The pension case was duly forwarded for authorization, but the respondents later withheld a gratuity amount of Rs. 70,000/- citing an alleged wrongful pay step-up. c) After Shri Ragubhir Singh passed away on 8-12-2006, his pension was transferred to the petitioner, who is his legal heir and a physically handicapped person, entitling him to a family pension beyond 25 years of age.
The required documents, including death, legal heir, and disability certificates, were submitted. d) The action of the respondents in withholding the gratuity amount after the father’s retirement violates Articles 14 & 16 of the Constitution of India and various rules and regulations governing the subject. The recovery of gratuity post-retirement is contrary to the J&K Civil Service Regulations (CSR), Article 242, which limits retrospective adjustments to a maximum of 24 months preceding retirement.
The Govt. Finance Department OM dated 27.12.1998 mandates that service records should be reviewed before retirement, and any excess payments should be settled before finalizing pension benefits. The respondents failed to follow the principles of natural justice, as the withholding of the gratuity was done without providing an opportunity of being heard. Despite repeated requests by the deceased father during his lifetime and by the petitioner after his demise, the withheld gratuity was not released, nor was the pension correctly revised. e) The respondents miscalculated the pension by failing to account for the proper monthly salary entitlement of the deceased father. The petitioner’s father was entitled to half of the monthly salary with allowances as pension, but the respondents arbitrarily reduced the amount by including deductions dating back to 1991, when the step-up in pay was granted. This wrongful calculation of pension is illegal and deserves to be set aside. f) The legal precedents, including Divisional Superintendent vs. L.N. Kashmir (AIR 1974 SC 1889) and Roop Krishan Zaroo vs. Union of India (KLJ 1986, Pg 527), establish that pensionary benefits cannot be arbitrarily withheld.
The Hon’ble Supreme Court and this Hon’ble Court have held that such actions violate constitutional and service law principles.
4. The respondents have filed their written statement wherein they have averred as follows: - a) The pension case of Shri Ragubhir Singh, Ex-Sub Inspector, was submitted upon his superannuation on 30.11.2001 to the AG J&K through the then SSP Border Jammu via Letter No. 297-98/DPO dated 03.01.2002.
The pensionary benefits were authorized through AG J&K Letter No. PPO.cell/1-2/41224-26 dated 01.03.2002, but the gratuity amount of Rs. 70,000/- was withheld. The reason cited was that his pay was stepped up from Rs. 1600 to Rs. 1680 with effect from 01.11.1991, and necessary No Demand Certificates (NDCs) were required from the department. b) The NDC was subsequently submitted to AG J&K through the SSP Border Jammu, but despite this, the gratuity was not released. The withholding was linked to the pay stepping-up case, as it was done in reference to his junior, Shri Mohd Sharief. AG J&K requested verification of Mohd Sharief’s service book to establish the legitimacy of the step-up in pay. c) Upon review of the service books of both officers, the AG J&K found that an anomaly in pay fixation arose due to the promotion of the junior employee.
As per Government Instruction No.4, below Article 77-B of J&K CSR Volume-1, the competent authority to sanction the stepping-up of pay in such cases is the concerned administrative department. AG J&K, through Letter No. PNRJ-1/114598/2008-2009 dated 11.07.2008, directed that the pay step-up of Shri Ragubhir Singh be regularized from the competent authority.
The respondents maintained that the excess pay drawn due to alleged wrongful fixation should be worked out and recovered via due and drawn statement. They contend that the petitioner unnecessarily invoked the writ jurisdiction by allegedly misrepresenting facts. d) The respondents submitted that no fundamental statutory or legal right of the petitioner had been infringed.
The approval of the concerned department was required for the pay step-up per Rule 77-B of J&K CSR Volume-1, and the matter was referred to higher authorities through Letter No. Estt/Pension/2007/8038/DPO dated 01.12.2007. e) In 2014, the family members of the petitioner approached the SSP Samba seeking the release of gratuity while leaving aside the pay step-up issue. As per Order No. 384 of 2014 dated 31.07.2014, the pay was re-fixed, and an entry was made in the character roll.
A request was sent to AG J&K for releasing the withheld gratuity after deducting Rs. 19,172 from the withheld portion. f) AG J&K, through Letter No. PNR-S/C-5/2013-14/1085-86 dated 04.10.2014, directed the SSP Samba to correctly fix the pay at Rs. 1600 instead of Rs. 1640. A final due and drawn statement was prepared, reflecting excess pay recovery from the withheld gratuity. AG J&K ultimately calculated an excess amount of Rs. 40,517/- that needed to be deducted before releasing the remaining gratuity. A final request for release of gratuity after deducting Rs. 40,517/- was sent via Letter No. Estt/14/1084 dated 31.12.2014.
4. Heard learned counsel for the parties and perused the pleadings made by them.
5. The petitioner argues that the withholding of the gratuity and pension revision violates Articles 14 & 16 of the Constitution of India, as well as principles of natural justice, since no opportunity was given to the deceased pensioner or the petitioner to contest the decision. It is further contended that the pay step-up was granted as per service rules, and no illegality was attributed to the deceased officer at the time of his retirement. The petitioner asserts that despite repeated representations, the gratuity and pension benefits were arbitrarily withheld, causing undue hardship.
6. The respondents submit that the gratuity amount was withheld due to the alleged anomaly in the pay fixation of Shri Ragubhir Singh, which was linked to his junior, Shri Mohd Sharief. They state that the matter was referred to the higher authorities by the then SSP Samba vide Letter No. Estt/Pension/2007/8038/DPO dated 01.12.2007 for obtaining the required administrative approval, which is still awaited from the higher authorities. They contend that the pension and gratuity could not be processed further without necessary clearances and adjustments of excess pay drawn.
7. The key issue before this Tribunal is whether the respondents were justified in withholding the gratuity and revising the pension of the deceased officer without adhering to due process and statutory obligations.
8. In the case of State of Punjab Vs. Rafiq Masih (White Washer) AIR 2015 SC 696, the Hon’ble Supreme Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient.
The Hon’ble Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus: - “8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the : Preamble of the Constitution of India.
The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery.
In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.
9. In para 18, it was further held that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement.
The Hon’ble Supreme Court also summarized the few situations, wherein recoveries by the employers, would be impermissible in law: i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
10. The Hon’ble Supreme Court in the case of Thomas Daniel Vs State of Kerala & Others 2022 LiveLaw (SC) 438 by observing that relief against the recovery is granted not because of any right of the employees, but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. Particularly, when an employee had no role for the excess payment made to him by the employer.
11. So far as the refixation aspect is concerned, the Hon’ble Supreme Court in the case of titled Jagdish Prasad Singh Vs. State of Bihar & Ors (Civil Appeal No. 1635 of 2013) dated 08.08.2024 has held that State Government cannot retrospectively reduce an employee’s pay scale and recover excess amount. The relevant portion of the judgement is quoted below: - “21. We firmly believe that any decision taken by the State Government to reduce an employee’s pay scale and recover the excess amount cannot be applied :: 45 :: retrospectively and that too after a long time gap. In the case of Syed Abdul Qadir and others v. State of Bihar and others, this Court held that when the excess unauthorized payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recover...”
12. The respondents themselves have admitted that the matter was referred to the higher authorities in 2007, and no final decision has been taken even after a lapse of nearly two decades. Such an inordinate delay in processing the pensionary benefits is unacceptable.
13. The J&K Civil Service Regulations (CSR), Article 242, limits retrospective adjustments to a maximum of 24 months before retirement. The government itself, through OM dated 27.12.1998, has directed authorities to review and settle pensionary benefits before an employee’s retirement, ensuring that no unnecessary hardship is caused post-retirement. The respondents' reliance on a pay anomaly that was neither attributed to any misconduct nor questioned at the time of retirement does not justify the continued withholding of gratuity.
14. Keeping the above points in view, the TA has merit, and deserves to be allowed. Consequently, we pass the following: - ...ORDER...
i) The communication No. PNRJ-1A/114598/2007-08/821-23 dated 08.11.2007 is quashed to the extent that it withholds the gratuity amount of Rs. 70,000/- of the deceased pensioner. ii) The respondents are directed to release the unpaid gratuity amount of Rs. 70,000/- along with interest at the rate of 7% per annum from the date of retirement (30.11.2001) till the actual date of payment. The respondents shall ensure that the difference in monthly pension due to the petitioner is calculated and released to the petitioner. iii) The respondents are further directed to complete the whole process in an expedite manner in any event not later than twelve weeks from the date of receipt of the certified copy of this order.
15. Accordingly, TA is allowed, to the extent, indicated above. No order as to costs. (RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member Judicial Member
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