A S A J Deshmukh vs Bharat Sanchar Nigam Limited on 27 October 2026

ORDER

Per: Mr. Shri Krishna, Member (A)

The applicant has filed this Original Application seeking following reliefs: “a) To allow the Original Application.

b) This Hon'ble Tribunal may be pleased to call for record of the case and after going through its propriety and legality be pleased to quash and set aside the order dated 03-11-2017/21-12-2017 and be declared that revision and reduction of pay form Rs. 27640/- to 26830 is illegal and be directed to Respondent No. 2 and 4 to settle the claim of the applicant for pensionary benefit as Commutation of pension, Gratuity, Monthly Pension and leave encashment as per basic pay Rs. 27640/- which was justified at the time of retirement without any reduction, correction or revision in the pay.

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c) To declare the action of the respondents not reviewing the case of the applicant in view of the order dated 17-05-2018 and judgment of the Principal bench quashing the order dated 05-05- 2017 is illegal and invalid.

d) The Hon’ble Tribunal may please be directed to refund the amount Rs. 125235/- which is recovered illegally without any notice, in view of the judgment of Hon’ble Supreme Court of India State of Punjab vs. Rafiq Masih.

e) To pass any other just and appropriate orders this Hon’ble Tribunal may deem fit, proper and necessary if the facts and circumstances of the case.

f) The cost of this application please be provided.”

2. Brief facts of the case are that applicant was working as Canteen Manager in O/o the respondent no. 2 and retired on superannuation on completion of 60 years of age w.e.f. 31.03.2018. On the date of retirement, there were no disciplinary or criminal proceedings pending against him and hence, he was relieved from the office w.e.f. 31.03.2018.

2.1 It has been submitted that he was appointed as Cashier w.e.f. 01.10.1979 in the Telecom Factory. The post of the cashier was renamed as Canteen clerk w.e.f. 03.04.2002 and the pay of the Canteen clerk was shown as Rs. 3050-4590.

2.2 It has been further submitted that the first upgradation was allowed to the applicant after completion of 12

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years of service w.e.f. 01.09.1999 vide order dated 26.08.2003 in the pay scale of 4000-6000/-.

2.3 It has been submitted that after completion of the 24 years of service, the applicant was upgraded in the IDA Pay scale of Rs. 7100-10100 w.e.f. 24-10-2003. The pay fixation done by Respondent vide fixation memo dated 14-02-2008 shows the pay of the applicant on 24-10-2003 in the pay scale of Rs. 7100- 10100.

2.4 It has been submitted that the respondent BSNL had issued a new promotion policy vide letter dated 23.03.2010 giving effect from 01.10.2000 i.e. date of formation of BSNL and hence, the second upgradation of the applicant was treated as first upgradation as per the BSNL promotion policy, since it was issued after formation of BSNL.

2.5 It has been submitted that in view of the said new promotion policy, the applicant second upgradation dated 24.03.2003 is treated as first upgradation as per Para 6.4 of the said policy, since it was given after formation of BSNL and before

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the notification of new policy. Further, it is stated that the applicant is promoted for the post based Promotion as Canteen Manager, w.e.f. 29.06.2010 vide order dated 29.06.2010 and 20.07.2010, according to the provision of Para 6.8 II of the said promotion policy and pay of the applicant is fixed in the pay scale of Rs. 7100-10100 with one notional increment as per Para 6.1 of the said notification of the Promotion policy.

2.6 It has been submitted that respondent No. 1 had issued an office order regarding revision of pay scale vide order dated 07.05.2010 and hence, the pay scale of the applicant Rs. 7100-10100 was replaced and fixed as per the said order in the pay scale of Rs. 13600-25420 w.e.f. 01.01.2007.

2.7 It has been submitted that the applicant was due for second upgradation as per the provision of Para 3.2 (b) of the BSNL promotion policy, since, he had completed 7 years after the first upgradation and hence accordingly, the applicant was upgraded in the pay scale of Rs. 14900-27850 w.e.f. 24.10.2010.

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2.8 It has been further submitted that as the Respondent No. 2 had fixed the pay of the applicant considering the promotion and upgradation as per the BSNL promotion policy, the pay of the Applicant was drawn in the month of Dec. 2017 correctly with basic pay Rs. 27640/- in the pay scale of Rs. 14900-27850/-. The Respondent No. 2 had sent the case of Pension and Pensionary benefit calculated on the basis of Rs. 27640/- for the sanction to the Respondent No. 2, but the Respondent No. 4 has pointed out that increment was wrongly given at the time of post based promotion in the same scale i.e. 7100-10100 as the applicant was already upgraded in the said scale and hence, the case of the applicant was sent back to revise the pay of the applicant. In view of the instruction given by Respondent no. 4, the Respondent No. 2 has revised the pay to avoid the delay in settlement of Pensionary benefit and accordingly, the pay of the applicant is reduced from Rs. 27640/- to 26830/- and revised pay fixation vide memo dated 03.11.2017/21.12.2017 was done without giving the increment at the time of post based promotion which was justified as per para 6.1 of promotion policy. Therefore, the said pay fixation

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memo is under challenge, since no notice was given to the applicant.

2.9 It has been submitted that in view of the said pay fixation, the basic pay of the Applicant was drawn for the Month of Jan. 2018 and onwards till the date of retirement i.e. 31.03.2018 at Rs. 26830/-. Thus, the Applicant’s pay is reduced from Rs. 27640/- to 26830/- i.e. the last pay of the applicant is reduced by Rs. 810/-. However, the respondents have not given any notice or any opportunity to explain the position and reduced the pay of the applicant violating the principles of natural justice.

2.10 It has been submitted that since the pay of the applicant was reduced by one increment from Rs. 27640/- to 26830/-, the applicant had represented to the Respondent No. 2 and requested to restore the increment which was reduced and stop the recovery vide letter dated 21.03.2018, but till date no response is given by the respondent to the said representation.

2.11 It has been further submitted that due to such reduction in pay before the retirement, a heavy recovery was

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affected and an amount of Rs. 125235/- was recovered from the payment of the leave encashment without giving any recovery memo and thus, it is not justified as decided by the Hon'ble Supreme Court in the case of State of Punjab and Rafiq Masih in CA No. 11527 of 2014, since the applicant was the Group "C" employee and it was recovered after retirement. The applicant relies on the above judgement. Since, the last Pay of the applicant is reduced, the Pensionary benefit is also reduced and hence, the applicant is suffering from heavy financial loss, the respondent No. 4 has sanctioned the Pension and Pensionary benefit on the basis of Rs. 26830/-, which has resulted in less payment of monthly Pension, commutation of Pension and Gratuity vide PPO dated 02.05.2018. Further, the leave encashment is also sanctioned less by the respondent no. 2.

2.12 It has been submitted that in response to the less sanction of Monthly pension, the Applicant had enquired with the authority, then it was intimated orally that the respondent no. 4 has taken an objection about the pay fixation done in the year 2010 on promotion. The respondent no. 4 had directed the respondent No. 2 to re-submit the form seven revising and

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reducing the increment, the last basic pay of Rs. 26830/- instead of Rs. 27640/-. The respondent no. 4 has unnecessary, and without any rules/provision directed to revise and reduce the pay showing reference of the DOT letter dated 05.07.2017.

2.13 Being an illegal and unwarranted letter dated 05.07.2017 issued by the DOT, the said letter was challenged by the affected persons before the Principal bench at New Delhi by filing O.A. 2649/2017, which is disposed by the Hon'ble Principal Bench, New Delhi by order dated 21.12.2017 and Hon'ble Principal Bench was pleased to allow the O.A. and accordingly the order dated 05.07.2017, which was issued by the DOT is quashed and set aside. Therefore, in view of the said judgement also, the applicant is entitled for the monthly pension and pensionary benefit on the basis of basic pay Rs. 27640/-.

2.14 It has been submitted that the DOT i.e. respondent No. 3 has reviewed the order dated 05.07.2017 vide order dated 17.05.2018 and directed to all CCA to obtain the undertaking, ignoring the said order dated 05.07.2017 and finalise the pension cases, but the respondent No. 4 did not act accordingly

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and the claim of the applicant did not review after the judgement of the Hon'ble Principal bench in above case. The Respondent No. 4 had directed to Respondent No. 2 unnecessary and without rules/provision and changed the fixation of the Applicant relating to the year 2010, which is not permissible under the CCS Pension Rules 1972. It is submitted that as per rule 59 (1) (b) (iii) of CCS Pension rules 1972, the Head of the Office may verify the correctness of emoluments for the period of twenty four months only preceding the date of retirement of Govt. servant, and not for any period prior to that date. When the statutory provision in rule has not permitted to verify and correct the emoluments, the action of the respondent no. 4 is arbitrary and illegal.

2.15 It has been further submitted that every Head of Office shall undertake the work of Pension papers in Form 7, two years before the date on which a Government servant is due to retire on superannuation or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier (Rule 58 of CCS Pension Rules 1972). The stages for the completion of pension papers and authorisation of pension and Gratuity have been provided in the CCS Pension Rules from 58 to 65 but said

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procedure has not been adopted in case of the applicant and after retirement an illegally disputed pay fixation pertaining for the period of 2010 i.e. after 7 years has been passed. As per Rules 65 of the CCS Pension Rules, the respondents have to authorise the pension and gratuity one month in advance of the date of the retirement but in the present case of the applicant, the rules/provision have not been followed. Thus, the respondent has violated their own rules and delayed to sanction the Gratuity, commutation of the pension, monthly Pension.

2.16 It has been submitted that due to some queries about pay fixation done in year 2010, the Respondent No. 4 has taken some objection at the time of retirement i.e. after lapse of more than 7 years, is not justified as per CCS Pension Rules, since, the complete service record has to be verified two years before the date of retirement. But in the present case, after retirement the queries are raised by the Respondent No. 4. However, the Respondent No.2 had done the pay fixation correctly as per rules and BSNL promotion policy, but the respondent no. 4 is trying to harass the applicant showing the reference of the letter dated 05.07.2017 which is now quashed and set aside by the Principal

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Bench. This shows that the action of the respondent about reducing the basis pay is not correct.

2.17

Being aggrieved by the action of the Respondents, the Applicant had represented to the Respondent No. 2 for settlement of pensionary benefit as per last pay drawn on the date of retirement without any reduction in basis pay and pay the balance amount. However, a similar matter is decided by this Tribunal in the case of Ramnath Rameshwar Yadav V/S BSNL, O.A. 516/2017 vide order dated 28.11.2017 and O.A. was partially allowed to settle the claim of the applicant for pensionary benefit as Gratuity, Commutation of Pension and Monthly Pension as per last pay drawn on the date of retirement without any correction or revision in pay fixation. In view of the said judgment, the applicant is entitled for the settlement of Pensionary benefit as per last pay drawn on the date of retirement without any correction or revision in pay fixation, being a similarly situated employee. Further, the Principal Bench has also quashed and set aside the order dated 05.07.2017. Therefore, the respondent has to pay the pensionary benefit without any revision or re-fixation of pay without any further

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delay. Since, this is a case of reduction of the last pay of the applicant after retirement violating rules 59 of the CCS Pension Rules 1972 and hence, it is similar to the case of R.R. Yadav.

2.18 It has been further submitted that the Hon'ble Supreme Court of India in the case of Sushil Kumar Singal vs. PramukhSachiv Irrigation Department & others, Civil Appeal No. 5262 of 2008 decided on 17.04.2014, wherein similar facts are considered by the Hon'ble Supreme Court and hence, order of re- fixation done after retirement was set aside and directed to pay the pension, which had been determined at the time of his retirement. A similar issue is also decided by Hon'ble High Court of Jharkhand in the case of Ram Parsann Singh vs. State of Jharkhand vide judgment dated 18.05.2005 (2005 (4) JCR48 JHR) and Hon'ble high Court has allowed the Petition and directed to release the retrial benefits inclusive of leave encashment on the basis of the last pay drawn by the Petitioner.

2.19 As decided by Hon'ble Supreme Court of India in Civil Appeal No. 6770/2013, State of Jharkhand & others V/S Jitendra

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Kumar Srivastava & Anr, the Hon'ble Supreme Court has observed under Para 15 as below: "15. It hardly needs to be emphasized that then executive instructions are not having statutory character and, therefore cannot be termed as law within the meaning of aforesaid Article 300 A. On the basis of such a circular which is not having force of law the Appellant cannot withhold even a part of pension or gratuity. As we notice above so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been such provision in these rules, position would have been different."

In the Present case also similar facts are involved, on basis of some circular issued vide letter dated 05.07.2017, the respondent has re-fixed the pay of the applicant which was fixed prior to 3 years of the retirement on promotion as per the promotion policy, and there is no provision in the Pension rules to correct the emoluments and withhold the pension and Pensionary Benefit for any mistake in pay fixation prior to 24 months of the date of retirement. Thus, withholding the correct Pension and pensionary benefit without statutory provision is unconstitutional. The Applicant relies on the above Judgment.

3. After notice, the respondents have filed the reply and contested the Original Application.

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3.1 The respondent no. 1 & 2 in their reply submitted that the applicant retired on attaining the age of superannuation on 31.03.2018 and granted one increment by mistake in 2017. Accordingly, it was corrected as per the directions of the respondents no. 3 & 4 by the respondents no. 1 & 2 vide revised fixation dated 03.11.2017. The OA was filed on 20.07.2020. In short, the applicant is challenging the order after taking full and final settlement of dues in 2018 itself. Thus, present OA suffers from delay and latches and hence, on this ground itself, the OA is liable to be dismissed with cost. In support of this contention, the respondents are relying upon the following judgments:

(i) P.S. Sadasivawswamy V/S S/O Tamil Nadu AIR 1974 SC

(ii) Jacob Abraham and others. A.T. Full Bench Judgements, 1994-96.

(iii) Ram Chandra Samanta V/S UOI 1994(26) ATC 228.

(iv) S.S. Rathore V/S S/O M.P. 1989 (2) ATC 521.

(v) Bhoop Singh V/S UOI IR 1992 SC 1414.

(vi) Secretary to Govt. of India V/S Shivaram M. Gaikwad (1995) 30 ATC 635-1995(6) SLR (SC) 812.

(vii) Ex. Capt. Harish Uppal V/S UOI 1994(2) SLJ 177

(viii) L. Chandra Kumar V/S UOI 1997(2) SLR(SC)1.

(ix) AIR 199 SC 564 Dattaram V/S Union of India.

(x) 1996 LLJ 1127(SC) UOI V/S Bhagnoar Singh.

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(xi) (1999) 8 SCC 304 Ramesh Chand Sharma V/S Udham Singh Kamal & Ors.

(xii) 2002 (5) SLR(SC) 307 E. Parmasivan & Ors. 1985-Article 226-Writ Petition-Delay and latches-Maintainability of writ petition-Limitation-Application before Tribunal in 1995, by retired MES officers Retirement between 31.01.1974 to 31.05.1985, for fixation of pay in term of OM dated 12.01.1976. Tribunal right in dismissing applications on grounds of limitation.

3.2 It has been submitted that the Hon'ble Supreme Court has categorically ruled that stale claim cannot be gone into by this Tribunal. This settled position is already accepted by this Tribunal in its judgement and order dated 12.12.2006 in O.A. No.92 of 2006 in the case of Kaushal Kishore V/S Union of India & others. Moreover, Full Bench of this Tribunal has also ruled that preliminary objection with regard to jurisdiction and limitation has to be decided first.

3.3 During the course of the arguments, the respondents have relied upon the judgement of the Hon'ble Supreme Court in the case of Arun Agarwal V/S Nagreeka Exports reported in (2002) 10 SCC 101 and in the case of UOI VS M K Sarkar reported in (2010) 1 SCC (L&S) 1126. Reckoning of date of accrual of cause of action-Tribunal allowing respondents application without examining merits directing Railway Administration to consider

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stale claim- Unnecessary litigation and avoidable complication arising out of- Propriety and warratedness of.- Issue of limitation or delay and latches has to be considered with reference to original cause of action and not with reference to date on which an order is passed in compliance with the court’s directions. The respondents have also relied upon the latest judgement of the Hon'ble Supreme Court on the point of delay and latches:

(i) 2014 (1) SLJ (SC) 20 Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Others.

(ii) 2014 (2) SLR 688(SC) State of Uttarakhand vs. Sri Shiv Charan Singh Bhandari.

3.4 It is further submitted that in the case of Union of India vs L. Chandrakumar (supra), the Constitution Bench has held that the period of limitation prescribed in Section 21 is strict one.

3.5 The respondents have further relied upon the case of State of Karnataka & Ors. vs. S. M. Kotrayya & Ors. reported in 1996 SCC (L&S) 1488=(1996) 6 SCC 267. A T Act, 1985, Section 21, Condonation of delay-Ground for- The mere fact that the applicants filed the belated application immediately after coming to know that in similar claims relief had been granted by the

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Tribunal, held, not a proper explanation to claims relief had been granted by the Tribunal, held, not a proper explanation to justify condonation of delay-The explanation must relate to failure to avail the remedy within the limitation period.

3.6 Even on merits, it is submitted that the applicant has furnished undertaking dated 17.05.2000 that if any excess pay drawn which will be recovered at any time from the dues of applicant and recovery was started well in advance before his retirement i.e. January 2018 and the said recovery has reflected in his monthly payment salary slip.

3.7 It has been submitted that the Supreme Court in the judgement reported in (2016) 14 SCC 267 High Court of Punjab and Haryana and others vs Jagdev Singh held as under: “Held, principle that recovery from retired employees or employees who are due to retire within one year of order of recovery is impermissible, is inapplicable, where officer to whom payment was made in first instance was clearly put on notice that excess payment was found to have been made would be required to be refunded in instant case, officer furnished undertaking while opting for revised pay scale that he would refund the excess amount paid and thus, was bound by undertaking- Impugned judgement setting aside action for recovery of excess amount, held, unsustainable.”

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3.8 In the light of the aforesaid, the action taken by the respondents is well within law and hence, OA is liable to be dismissed with cost. The clerical mistake committed by the respective officers is corrected in accordance with law and hence, the action of the respondents did not take away any legitimate and legal dues from the applicant. The recovery ordered by the respondents is permissible in law. The Hon’ble Supreme Court in the judgement reported in 2012 (5) SLR 607 (SC) in the case of Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand, held that the exce5.07ss payment of 5th and 6th pay scale made, be recovered in 12 equal months instalments.

3.9 It has been further submitted that the applicant has furnished undertaking that if any excess pay drawn which will be recovered at any time from the dues of applicant and recovery was started well in advance before the retirement i.e. January, 2018 and said recovery was duly reflected in his monthly payments slips. It is stated that the recovery was made in accordance with the directions/order/guidelines issued by the Govt. of India, Ministry of Personnel and PG, DOPT.

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3.10 It has been submitted that the increment was mistakenly given two times on 01.07.2016 and 01.10.2017, therefore, wrong action was corrected and recovery was made. The applicant has opted for NEPP in his undertaking and not Central Govt. promotion and accordingly 2nd upgradation was treated as 1st Financial Upgradation under NEPP.

3.11 It has been further submitted that the applicant himself has submitted the undertaking for recovery, therefore, the present Original Application for refund and not for recovery.

3.12 The respondent no. 3 & 4 in their reply submitted that the pay of the applicant was not reduced by the Respondent no.4 nor any directions were issued in this regard to the Respondent No.2 i.e. controlling officer of the applicant under whom he had last served. Further, the Department of Telecommunications order dated 5th July 2017 is applicable to executives. However, the applicant falls under the category of non-executive. Hence, the order relied upon by the applicant has no significance in the present OA. So far as condonation of delay is concerned, the respondents strongly oppose the filing of OA beyond the

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prescribed period of limitation. The applicant has utterly failed to give sufficient reason for the delay caused in filing the present O.A. Since the delay caused in the matter is a serious issue, it is submitted that the said objection to be decided as preliminary objection before going to the merits of the matter.

3.13 It has been submitted that the Office Order was issued by the respondent no. 1, as the applicant was employed by respondent no. 1. The applicable promotions as per policy were decided by respondent no. 1. Further, the applicant’s pension file/case paper was received from the respondent no. 2 to respondent no. 4 vide letter dated 06.01.2018. In the said letter, the last pay drawn by the applicant is mentioned as Rs. 26,830/- in the pay scale of Rs. 14900-27850/- (NE 10), at no point of time, the respondent no. 4 had objected to fixation of pay of the applicant to respondent no. 2.

3.14 It has been submitted that the pensionary benefits have been correctly settled based on the service record of the applicant, as such the OA deserved to be summarily be rejected. The allegations levelled against the respondent no. 4 is false and

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the same is denied in toto. No such directions whether oral or written were issued by the respondent no. 4 as alleged or otherwise.

3.15 It has been submitted that the order dated 05.07.2017 is applicable to BSNL Executives. However, the applicant being non-executive, he has no right to rely upon the aforesaid order dated 05.07.2017 and seek any relief thereunder. Therefore, the order relied upon by the applicant is not applicable in this case.

3.16 It has been further submitted that the respondents no. 4 has denied that they were trying to harass the applicant by showing the reference of the letter dated 05.07.2017. It is not known as to what letter was quashed and set aside by the Principal Bench of this Tribunal as averred by the applicant. The case of Ramnath Rameshwar Yadav vs. BSNL in OA No. 516 of 2017 and order dated 28.11.2017 has no relevance to the present case.

3.17 It has been submitted that reliance of the applicant on the judgment of Sushil Kumar Singal vs. PurmukhSachi,

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Irrigation Department & Ors., the applicant has failed to establish how the judgments are applicable to the present facts and circumstances of the case and therefore, they have prayed for the dismissal of the OA.

4. Thereafter, the applicant has filed rejoinder to the reply submitted by the respondents reiterating and elaborating the submissions made in the original application.

4.1 It has been submitted that the contention of the respondent about the delay and latches is not tenable, since the revised pay fixation was done as per the directives of the respondent no. 3 & 4, while finalising the pension case and revised pay fixation was done without any notice to the applicant. Further, the representation has not been decided till date and further being pay fixation cause of action is continued as continue wrong. Further, the applicant is suffering from the pensionary benefits since the recovery is done from Leave encashment after retirement no limitation period is attracted. Therefore, the contents of the respondents about the delay are denied and the citations of the various judgments are not applicable in the

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present case since facts and circumstances are not similar to the said case.

4.2 It has been submitted that the undertaking dated 17.10.2017 by the applicant, is not relevant for fixation of pay on promotion as it was submitted in case of pay revision in revised pay scales. Therefore, the contents and citation of the judgment is not applicable in the present case as no undertaking was given by the applicant at the time of pay fixation on promotion.

4.3 It has been submitted that the contention of the respondent about clerical mistake is corrected in accordance with the law and the action of respondents is in accordance with the rules, is not tenable since the pay fixation done in 2010 is corrected after 7 years, is not permissible by the Rules 59 (1) (b)

(iii) of the CCS Pension Rules, 1972 at the time of retirement. Further, no show cause notice was served to the applicant. This act of the respondents has violated the principle of natural justice and statutory provision of CCS Pension rules. Further, the recovery ordered by the respondents is not permissible in view of the Supreme Court latest judgment dated 02.05.2022 in case of

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Thomas Daniel V/s State of Kerala & others, Civil Appeal No. 7115 of 2010 wherein increment granted to the applicant was recovered after 10 years, i.e. also after retirement. The observations recorded in Para 14 and 15 of the judgment is as under: “(14)

Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the applicant, the excess amounts have been paid. The applicant has retired on 31-03- 1999. In fact, the case of the respondent is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed by the Accountant General.

Having regard to the above, we are of the view that an attempt to recover the said increment after passage of ten years of his retirement is unjustified.”

In the present case, the increment was not granted by the respondent on account of the misrepresentation or fraud played by the Applicant whereas, it was granted as per the provision of orders and rules on promotion but since, the respondents no 3 & 4 have objected to allow the increment on promotion in same scale, the recovery was ordered. This action of the respondent is not justified. Therefore, the content of the Respondent is denied.

4.4 It has been further submitted that OM dated 06.02.2014 is superseded by the OM dated 02.03.2016, wherein the judgment of State of Punjab vs. Rafiq Masih discussed and

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directed the guideline on recovery of wrongful/excess payment made to the Govt. Servant. It was directed under para 5 of the said OM as under: “5. The matter has, consequently been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries/Departments are advised to deal with the issue of wrongful/excess payment made to Govt. Servants in accordance with the above decision of the Hon’ble Supreme Court in CA No. 11527 of 2014 (arising out of SLP (C) No. 11684 of 2012) in the State of Punjab vs. Rafiq Masih (White Washer) etc.”

The respondents did not follow the guidelines in the recovery process as stated in the above OM dated 02.03.2016.

4.5 It has been submitted that the contention of the respondents about the judgment of Principal Bench is not tenable since the question of poor and managerial post does not applicable in legal term. The Principal Bench judgment is dealing with the withdrawal of increment given on post based promotion in same scale. Similar facts are involved in the present case, the increment granted on promotion is withdrawn even though it was granted as per the promotion policy memorandum of the respondents and the said policy was approved by the DOT. But without any show cause notice, the said increment is withdrawn. Hence, it is violation of their own orders and natural justice.

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Hence, the contents of para 2 of the OA is reiterated. Further, it is submitted that the pay fixation was done in the year 2010 on post based promotion, which was given to the applicant as per the BSNL Policy and order dated 23.03.2010 (Annexure-A-4).

4.6 It has been further submitted that the contention of the respondents about the increment granted on 01.07.2016 and 01.10.2014 was cancelled, is not tenable, since no details were given in revised pay fixation memo and recovery was done without giving any notice, hence, the action of the respondents is illegal and bad in law, therefore, it is denied and reiterated.

4.7 During the course of the arguments, the applicant has placed reliance on the judgment of Hon’ble Supreme Court in the case of Thomas Daniel V/s State of Kerala & others, Civil Appeal No. 7115 of 2010 decided on 02.05.2022, DOPT OM dated 02.03.2016 on the subject of recovery on wrongful payment made to the Govt. Servant and the judgment of Hon’ble Supreme Court in the case of M.R. Gupta vs. UOI & Ors. (1996) AIR 669.

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5. During the course of the arguments, learned counsel for both the sides have argued their cases on the basis of pleadings.

6. Learned counsel for the applicant, Mr. G B Kamdi has placed reliance on the judgment of Hon’ble Supreme Court in the case of Jagdish Prasad Singh vs. State of Bihar & Ors. in Civil Appeal No. 1635/2013 decided on 08.08.2024, in the case of Bhagwan Shukla vs. UOI & Ors. 1994 SUPPL. (2) SCR 419 decided on 05.08.1994, order of this Tribunal in the case of Shri Nanaji Devba Barde vs. BSNL & Ors. in OA No. 141/2020 decided on 29.09.2022 and in the case of S.S. Rane vs. BSNL and I.A. Charolia vs. BSNL in OA No. 715/2015 & OA No. 441/2016 decided on 28.01.2025, order dated 23.03.2014 of CAT, Ernakulam Bench in OA No. 316/2011 in the case of K.N. Nelukuttam vs. Controller of Communication, and the judgment of Hon’ble High Court of Patna in Civil WP No. 11407/2024 decided on 20.12.2024 in the case of Pramod Kumar Sinha vs. UOI & Ors., and the Hon’ble High Court of Karnataka in WP No. 6453/2019 in the case of Controller of Administration Visvesvaraya Industrial and Technological Museum vs. Director General National Council of Science Museum decided

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on 28.08.2025, and Office Memorandum dated 20.02.2023 issued by the Ministry of Communication, DOT, to support his arguments.

7. We have heard learned counsel for the parties at length and carefully gone through the pleadings and documents placed on record and the judgments/orders relied upon by both the sides.

8. Findings and Conclusions 8.1 The controversy involved in the present Original Application concerns the legality of the reduction of the applicant's basic pay from ₹27,640/- to ₹26,830/- shortly before his retirement, the consequential reduction in his pensionary benefits, and the recovery of ₹1,25,235/- from his leave encashment.

The issues that arise for consideration are: (i) whether the respondents were justified in revising the applicant's pay fixation relating to his promotion in 2010; (ii) whether such revision could have been effected without affording him an opportunity of hearing; (iii) whether recovery of the alleged excess payment is permissible in the facts and circumstances of the case; and (iv)

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whether the applicant is entitled to consequential revision of his pensionary benefits on the basis of his last pay of ₹27,640/-.

9. Objection Regarding Limitation 9.1 The respondents have raised a preliminary objection that the present Original Application is barred by limitation, as the impugned pay-fixation orders were issued on 03.11.2017/21.12.2017, whereas the Original Application was filed on 20.07.2020. They have relied upon several judgments of the Hon'ble Supreme Court to contend that stale claims cannot be entertained by this Tribunal.

On the other hand, the applicant has submitted that the adverse consequences of the impugned pay fixation continued to affect his pension, gratuity, commutation of pension, and leave encashment. He has further contended that his representation dated 21.03.2018 was not decided by the respondents and that the recovery from his retirement dues was unlawful.

9.2 We are conscious of the settled legal position that a representation made by an employee does not automatically extend the period of limitation or revive a stale claim. The

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principles laid down in Union of India v. M.K. Sarkar, (2010) 2 SCC 59, require the Tribunal to examine the original cause of action rather than merely the date on which a subsequent representation is decided.

However, the present case is not confined to a challenge against an isolated order of pay fixation. The applicant has also challenged the consequential determination of his pensionary benefits and the recovery of a substantial amount from his retirement dues. These claims require examination in the context of the applicable limitation provisions and the circumstances in which the adverse financial consequences arose.

9.3 Having considered the nature of the grievance and the circumstances pleaded by the applicant, we find that the legality of the recovery and the consequential determination of pensionary benefits constitute substantial issues requiring adjudication. To the extent that the claims are maintainable under Section 21 of the Administrative Tribunals Act, 1985, the objection of limitation cannot, by itself, justify rejection of the Original Application

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without examination of the relevant circumstances and the reliefs claimed.

Accordingly, the objection raised by the respondents is rejected to the extent indicated above, and we proceed to examine the merits of the matter.

10. Legality of the Revision of Pay Fixation 10.1 It is an admitted position that the applicant was appointed as a Cashier in 1979 and subsequently served as Canteen Manager. His pay was fixed under the applicable BSNL promotion policy, and he was drawing a basic pay of ₹27,640/- in the pay scale of ₹14,900–27,850 before the respondents revised his pay to ₹26,830/-.

The applicant has contended that the pay fixation was made pursuant to the applicable promotion policy and that the benefit of increment granted upon his promotion was subsequently withdrawn without notice or an opportunity to explain his position. The respondents have maintained that the increment

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had been erroneously granted and that its withdrawal was necessary to correct the mistake.

10.2 It is well settled that an employer is entitled to correct an erroneous pay fixation where the correction is authorised by the applicable service rules. However, such power cannot be exercised arbitrarily or without due regard to the principles of natural justice, particularly when the correction adversely affects the employee's financial and pensionary rights.

In Bhagwan Shukla v. Union of India, 1994 Supp (2) SCC 23, the Hon'ble Supreme Court emphasised that reduction of an employee's pay without affording an opportunity of hearing is contrary to the principles of natural justice.

The requirement of procedural fairness assumes particular significance where the original pay fixation was made by the competent departmental authorities and was acted upon for a considerable period before its subsequent revision.

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10.3 In the present case, the disputed increment arose from the applicant's promotion and pay fixation under the BSNL promotion policy. The respondents have not demonstrated, on the basis of the pleadings reproduced before us, that the applicant procured the benefit by furnishing incorrect information or by misrepresenting any material fact.

The applicant has consistently maintained that the pay fixation was undertaken by the departmental authorities in accordance with the applicable policy and that the subsequent reduction was made without issuing any show-cause notice. The respondents' assertion that a mistake had occurred cannot, by itself, dispense with the requirement of establishing the precise rule or policy provision under which the earlier fixation was impermissible.

10.4 We also find that the impugned revision had a direct and adverse effect on the applicant's retirement benefits. His basic pay was reduced from ₹27,640/- to ₹26,830/-, thereby affecting the calculation of pension, gratuity, commutation of pension, and leave encashment.

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In these circumstances, the respondents ought to have communicated the precise grounds for the proposed reduction and afforded the applicant a reasonable opportunity to explain his position before taking a final decision affecting his financial rights.

The failure to follow such a procedure, in the absence of demonstrated circumstances justifying the action taken, renders the impugned revision procedurally unsustainable.

10.5 We are, therefore, of the considered view that the impugned reduction of the applicant's pay cannot be sustained merely on the ground that an error had been committed by the departmental authorities. The respondents were required to establish both the substantive illegality of the original fixation and compliance with the procedure prescribed by law.

In the facts and circumstances of the present case, the revision of the applicant's pay from ₹27,640/- to ₹26,830/- is liable to be set aside.

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11. Recovery of ₹1,25,235/- from Leave Encashment 11.1 The next issue concerns the recovery of ₹1,25,235/- from the applicant's leave encashment. The applicant has submitted that he belonged to Group 'C', that the alleged excess payment was not attributable to any fraud or misrepresentation on his part, and that the recovery was effected in connection with his retirement benefits.

The respondents have relied upon an undertaking furnished by the applicant and the judgments in High Court of Punjab and Haryana v. Jagdev Singh, (2016) 14 SCC 267, and Chandi Prasad Uniyal v. State of Uttarakhand, (2012) 8 SCC 417, to contend that recovery of excess payments is permissible.

11.2 In State of Punjab v. Rafiq Masih (White Washer), (2015) 4 SCC 334, the Hon'ble Supreme Court identified circumstances in which recovery of excess payments from employees would be impermissible, including specified cases involving employees belonging to Class III and Class IV services and employees who had retired or were due to retire within the prescribed period.

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The principle underlying the judgment is that recovery of payments made by the employer due to an administrative mistake may cause undue hardship in circumstances where the employee neither induced the payment through misrepresentation nor was responsible for the mistake.

11.3 The respondents have relied upon High Court of Punjab and Haryana v. Jagdev Singh, wherein the Hon'ble Supreme Court held that an employee who furnished an undertaking agreeing to refund excess payments could be bound by the undertaking, subject to the circumstances of the case.

We have considered this submission. The existence of an undertaking, by itself, does not conclude the issue. Its terms, purpose, and applicability to the disputed payment must be examined. The applicant has specifically contended that the undertaking dated 17.10.2017 related to revision of pay scales and did not concern the increment granted upon his promotion.

The respondents have not, on the material reproduced before us, established that the undertaking specifically covered the disputed

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increment or that it conclusively displaced the protection available to the applicant under the applicable law.

11.4 Further, in Thomas Daniel v. State of Kerala, Civil Appeal No. 7115 of 2010, decided on 02.05.2022, the Hon'ble Supreme Court reiterated that recovery of excess payments attributable to an employer's mistake, in the absence of fraud or misrepresentation by the employee, may be unjustified, particularly where the payment has continued for a substantial period.

In the present case, the respondents have attributed the disputed payment to an error in pay fixation. There is no allegation that the applicant obtained the increment by fraud or misrepresentation. The pay fixation originated from the departmental authorities, and the applicant received the benefit in the course of his service.

11.5 Having regard to the applicant's status as a non- executive employee, the circumstances in which the disputed increment was granted, the absence of any established fraud or misrepresentation, and the recovery made in connection with his

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retirement dues, we find that the respondents have not established a sufficient legal basis for retaining the amount of ₹1,25,235/-.

The recovery is, therefore, liable to be set aside, and the amount recovered from the applicant's leave encashment is required to be refunded to him.

12. Entitlement to Pensionary Benefits on the Basis of Last Pay Drawn 12.1 The applicant has further sought settlement of his pension, commutation of pension, gratuity, and leave encashment on the basis of his last pay of ₹27,640/- rather than ₹26,830/-.

As discussed above, the reduction in the applicant's pay was affected shortly before his retirement and had consequential effects on his retirement benefits. Since the impugned revision of pay fixation is found to be unsustainable in the facts and circumstances of the present case, the consequential determination of pensionary benefits on the basis of the reduced pay cannot be allowed to stand.

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12.2 The applicant has also relied upon Rule 59 of the CCS (Pension) Rules, 1972, and the prescribed procedure for preparation and verification of pension papers. While the precise scope of the relevant provisions must be understood in the context of the applicable rules, the respondents were required to ensure that the applicant's pensionary benefits were determined in accordance with the governing service rules and a legally sustainable pay fixation.

The respondents cannot justify an adverse revision merely by referring to an alleged error without establishing the legal basis for the correction and following the procedure required by law.

12.3 The applicant has also placed reliance upon the order passed by the Principal Bench of this Tribunal in O.A. No. 2649/2017, whereby the Department of Telecommunications' communication dated 05.07.2017 was quashed and set aside. The respondents have contended that the said communication related to executives and was not applicable to the applicant, who was a non-executive employee.

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We find that the applicability of the said order must be determined in the light of its actual terms and scope. Nevertheless, the applicant's entitlement does not depend exclusively upon that order. The validity of the impugned pay revision must independently satisfy the applicable promotion policy, service rules, and principles of natural justice.

12.4 In view of our findings regarding the impugned pay revision, we hold that the applicant is entitled to have his pensionary benefits recalculated on the basis of his legally admissible last pay of ₹27,640/-, subject to verification of the relevant service records and the applicable rules.

The respondents shall accordingly revise the applicant's pension, commutation of pension, gratuity, and leave encashment and release the differential amounts found payable after making only such adjustments as are permissible under law.

13. In view of the foregoing discussion, the Original Application is allowed in the following terms:

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(i) The impugned pay-fixation orders dated 03.11.2017/21.12.2017, insofar as they reduce the applicant's basic pay from ₹27,640/- to ₹26,830/-, are hereby quashed and set aside.

(ii) The respondents are directed to restore the applicant's legally admissible last basic pay of ₹27,640/- for the purpose of determining his retirement benefits, subject to the applicable service rules and verification of the relevant service records.

(iii) The respondents are directed to recalculate the applicant's pension, commutation of pension, gratuity, and leave encashment on the basis of the aforesaid pay and release the differential amounts found payable to him.

(iv) The recovery of ₹1,25,235/- effected from the applicant's leave encashment is hereby set aside. The respondents are directed to refund the said amount to the applicant, subject to adjustment of any amount that may independently be found recoverable under a valid and applicable legal provision.

(v) The aforesaid exercise shall be completed, and the admissible differential amounts shall be released to the applicant, within four months from the date of receipt of a certified copy of this order.

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(vi) The respondents shall ensure that the revised pensionary benefits are authorised and disbursed without further avoidable delay.

(vii) In the facts and circumstances of the case, there shall be no order as to costs. The Original Application stands allowed in the above terms.

(Umesh Gajankush) (Shri Krishna) Member(J) Member(A)

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