Birendra Kumar Tiwari vs DEFENCE on 28 October 2026

1. Union of India Through its Secretary, Ministry of Defence, South Block, New Delhi-110011

2. The Director General, Ordnance Services, Sena Bhawan, PO- DHQ, New Delhi

3. The Commandant, Central Vehicle Depot, DelhiCantt-110010

4. LocalAudit Officer, Central Vehicle Depot, Delhi Cantt-110010 ... Respondents (By Advocate: Mr. U Srivastava)

DEEKSHA DHINGRA

O R D E R (ORAL)

Hon’ble Mr. Manish Garg, Member (J)

1. In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs: “8.1 To direct the respondents to restore back the Basic Pay of the applicant (prior to recovery imposed) and further recovery amounting to Rs.65,768/- be refunded to applicant forthwith with all consequential benefits. 8.2 To further direct the respondents that the applicant be granted the interest @ GPF on the entire recovered amount of Rs.65,768/- from the date of recovery to the date of returning the recovered amount. And/or Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant.”

2. Learned counsel for the applicant submits that the representation of the applicant is pending and due to the compelling circumstances, he has approached the Tribunal by way of the present O.A.

3. Opposing the grant of relief, the counter affidavit has been filed by the respondents wherein they have stated as follows: - “That it is humbly submitted that the applicant was taking pay scale of Rs. 4500-125-7000/- as Master Craftsman before 6th CPC. As per 6th CPC, the pay of the applicant was fixed @ 9540 +2800(GP) in the pay scale of 5200-20200/- + 2800/-(GP). As per GIO,

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MoD Letter No. 11 (5)/2009-D(Civ-I) dt. 14 Jun 2010 received under IHQ of MoD(Army) letter No. A/23711/MCM/OS-8C(II) dt. 30 Jun 2010, the pay of the applicant was fixed @ 9860 + 4200/-(GP) in the pay scale of 9300-34800+ 4200/- (GP). Later on, it was found by the Audit Authority ie. LAO, CVD Delhi Cantt that the pay fixed is wrong and recovery may be initiated, hence, pay of the applicant was refixed @ 9540 + 4200/- (GP) in the pay scale of 9300- 34800/- + 4200/- (GP). Thereafter, recovery of excess amount i.e. Rs. 65768/- had been made against the applicant in the month of Oct 2015 to Dec 2016 after having undertaking from the applicant duly signed by him that if any excess payment that may be found to have been made as a result of incorrect fixation of pay or any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the Govt. either by adjustment against future payments due to me or otherwise."

4. Learned counsel for the respondents has also relied upon the judgment of the Hon’ble Apex Court in the case of Dr. MK Ravi Varma Etc. Etc. Versus National Institute of Technology and Ors. in CA No. 8329-8336/2016 dated 23.09.2023.

5. I have perused the pleadings available on record and also heard the learned counsel for the parties.

6. Considering the factual matrix of the case it is seen that the undertaking has not been placed on record by the respondents. The onus lies upon the respondents to show the undertaking which was in relation to the recovery being so made. The recovery has been made admittedly without giving any showcause notice and after the

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retirement of the applicant in the year 2018. It is also seen that the applicant is not pressing for any refixation of pay in the matter.

7. Learned counsel for the applicant has relied on the judgment of a coordinate Bench of this Tribunal in O.A. No. 3675/2015 dated 11.01.2023 wherein the following order has been passed:- “7. The facts are not disputed. It is the respondents who had fixed the salary of the applicants and it is also the respondents who at a later date re-fixed it by way of a downward reduction. It is also not established anywhere that while resorting to this reduction in their pay by way of re-fixation, the applicants were put to any notice or afforded any opportunity. Moreover, it has nowhere been alleged that the applicants were guilty of any misrepresentation to wrongfully obtain higher salary and emoluments. We are clear in our minds that in case a mistake was done, the responsibility and accountability of the same rests with the respondents. However, this is not a matter in which accountability needs to be fixed as the mistake could have been innocent and bonafide. Let it be so, still the respondents could not have at a belated stage effected recovery without affording any opportunity to the applicants flouting the principles of natural justice. Moreover, the principles laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (Supra) also get flouted in the present matter. The judgment of Thomos Daniel case passed by the Hon’ble Apex Court also reiterates these principles and establishes the case of the applicants.

8. In view of the aforesaid, we hold the action of the respondents to re-fix pay and allowance of the applicants as illegal and accordingly set aside the same. The pay as enjoyed by the applicants in the month of May 2015 stands restored. The Competent Authority amongst the respondents shall pass an

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appropriate order restoring the pay as the applicants were enjoying prior to the re-fixation which has been set aside. Pursuant to the initial refixation, the pay of the subsequent years shall also be re-fix accordingly. The recovery already made from the applicants shall be refunded to them. The applicants shall also be entitled to other consequential benefits including the actual financial benefit that may accrue as a result of these directions. The Competent Authority shall endeavour to comply with these directions and pass appropriate orders as expeditiously as possible, certainly not later than 12 weeks from the date of receipt of a certified copy of this order. The applicants shall not be entitled to any interest on this payment till the period of 12 weeks which has been allowed to the respondents for compliance. However, if the refund of the recovered amount and payment of arrears is not made within the period of 12 weeks, the applicants shall be entitled for interest upon delayed payment after the expiry of this period at the rate applicable upon GPF.”

8. It has been informed that the above order has been implemented by the respondents.

9. In view of the above, we allow the present O.A. with a direction to the respondents to restore the basic pay of the applicant and refund the amount of Rs. 65,768/- so recovered. However, as the applicant has approached the Tribunal after a gap of more than 7 years, no interest is payable.

10. No order as to costs. (Manish Garg) Member (J)

/dd /

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