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Monday, November 4, 2013

Service matter = Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner = U.T. CHANDIGARH & ORS. …APPELLANTS VERSUS GURCHARAN SINGH & ANR. ...RESPONDENTS = Reported in http://judis.nic.in/supremecourt/filename=40951

Employer can refix the pay and recover the same from Employee when pay was fixed wrongly by mistake with out considering the rules and regulations in fixation of pay of Re-Employed pensioner =
 if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance
of the mistake must be recovered. 
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake
and in such  an  event,  even  the  appellant  might  have  to  pay  to  the
respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.  =
The respondent was appointed as a Clerk by  the  appellant  Chandigarh
Transport  Undertaking  on  the  quota  reserved  for  ex-servicemen.   
The
respondent had rendered his services to  the  Indian  Army  as  a  Combatant
Clerk upto 31st January, 1990, till the date when  he  was  discharged  from
the Indian Army.
      Upon his appointment as a  Clerk  under  an  office  order  dated  2nd
September, 1992, his  pay  had  been  fixed  and  he  was  paid  his  salary
accordingly. 
Only when he retired in 1997, it was brought to the notice  of
the employer, on getting an audit query, that his salary  had  been  wrongly fixed under the order dated 2nd September, 1992.  
The mistake  committed  in pay fixation had been rectified by an order dated 13th October, 1998. =

 Order 4 of the Orders, being  relevant  for  the
purpose, has been reproduced herein-below:


      “4.   Fixation of pay of re-employed pensions.


      a)    Re-employed pensioners shall be allowed  to  draw  pay  only  in
           prescribed scales of pay for the posts in  which  they  are  re-
           employed.  No protection of the scales of pay of the  post  held
           by them prior to retirement shall be given.






      b)    i)    In all cases where  the  pension  is  fully  ignored,  the
           initial pay on re-employment shall be fixed at  the  minimum  of
           the scales of pay of the re-employed post.


           ii)   In cases where the entire pension and pensionary  benefits
           are not ignored  for  pay  fixation,  the  initial  pay  on  re-
           employment shall be fixed at the same  stage  as  the  last  pay
           drawn before retirement.  If there is no such stage in  the  re-
           employed post, the pay shall be fixed at the  stage  below  that
           pay.  If the maximum of the pay scales in which a  pensioner  is
           re-employed is less than  the  last  pay  drawn  by  him  before
           retirement, his initial pay shall be fixed at the maximum of the
           scales of the re-employed post.  Similarly, if  the  minimum  of
           the scales of the pay in which a  pensioner  is  re-employed  is
           more than the last  pay  drawn  by  him  before  retirement  his
           initial pay shall be fixed at the minimum of the scales  of  pay
           of the re-employed post.   However,  in  all  these  cases,  non
           ignorable  past  of  the  pension  and  pension  equivalent   of
           retirement benefits shall be reduced from the pay so fixed.


      c)    The re-employed pensioner will be in addition to  pay  as  fixed
           under para (b) above shall be permitted to drawn separately  and
           pension sanctioned to him  and  to  retain  any  other  form  of
           retirement benefits.


      d)    In the case of persons retiring before attaining the age  of  55
           years  and  who  are  re-employed,  pension  (including  pension
           equivalent of gratuity and other forms of  retirement  benefits)
           shall be ignored for  initial  pay  fixation  to  the  following
           extent.


           (i)    In  the  case  of  ex-servicemen  who  held  posts  below
           commissioned officer rank in the Defence Forces and in the  case
           of Civilians who held posts below Group (A) posts at the time of
           their retirement benefits shall be ignored.


           (ii)  In the case of service officers belonging to  the  Defence
           Forces and Civilian Pensioners who hold Group ‘A’ posts  at  the
           time of their retirement, the first Rs.500/- of the pension  and
           pension equivalent of retirement benefits shall be ignored.”


 8.   The respondent had been given an option whereby he had opted  for  the
minimum scale of pay, which was paid to the Clerk  and  therefore,  his  pay
had been rightly fixed as per the option read with Order 4(a) of the  Rules.

the High Court was in error while  allowing
the petition because it is clearly revealed from the option  form  that  the
respondent had agreed to get his pay fixed as per the minimum of pay in  the
pay-scale of the Clerk, the post to which he had been  re-employed.   
It  is
pertinent to note that the respondent has been getting regular pension  from
the Indian Army for his past services rendered to the Indian Army.   
As  per
the provisions of the  Orders  and  as  per  the  option  exercised  by  the
respondent, service rendered by the respondent to the Indian Army cannot  be
taken into account for the purposes of his pay fixation  as  the  respondent
would be getting his pension and there would not be any deduction  from  his
pension or his salary on account of the pension received  by  him  from  the
Indian Army.   
If  nothing  has  been  deducted  from  the  pension  of  the
respondent upon being re-employed and  as the respondent would  continue  to
get his pension and other benefits from the Army for his past  services,  in
our opinion, the High Court was not right  while permitting  the  respondent
to get his higher pay fixed by taking into account the services rendered  by
the respondent to the Indian Army.  
Even from sound common sense, it can  be
seen that for the past service rendered to the Indian Army,  the  respondent
is getting pension and other  perquisites  which  a  retired  or  discharged
soldier is entitled to even after being re-employed.  
The respondent  would,
therefore, not have any right to get any further advantage in the nature  of
higher salary or a higher  pay  scale,  especially  when  nothing  from  his
salary was being deducted on account of his getting pension  or  perquisites
from the earlier employer.


 11.  In view of the aforestated position, in our opinion, the Tribunal  was
absolutely right in coming to the conclusion that  the  pay  fixation  under
the order dated 13th  October,  1998  was  correct  because  a  mistake  was
committed in the earlier pay fixation under the order dated  2nd  September,
1992.


12.   Though a submission had been made on behalf of the respondent that 
no
amount should be recovered from the salary paid to the respondent, the  said
submission can not be accepted because 
if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance of the mistake must be recovered. 
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake and in such  an  event,  even  the  appellant  might  have  to  pay  to  the respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.


13.   For the aforestated reasons, we are of the view that  the  High  Court
was not correct in allowing the writ petition.  We quash and set  aside  the
order passed by the High Court so as to restore  the  order  passed  by  the
Tribunal and give effect to the  pay  fixation  order  dated  13th  October,
1998.  The appeal stands disposed of as allowed with no order as to costs.


                                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  9873   OF 2013
                  (Arising out of SLP(C) No.17881 of 2008)



U.T. CHANDIGARH & ORS.              …APPELLANTS


                                VERSUS

GURCHARAN SINGH & ANR.               ...RESPONDENTS



                              1 J U D G M E N T




1 ANIL R. DAVE, J.



1.    Leave granted.
2.    Being aggrieved by the  Judgment  delivered  in  Civil  Writ  Petition
No.7006-CAT of 2003 dated 20th March, 2008 by the High Court of  Punjab  and
Haryana at Chandigarh, this appeal has been filed by the  employer  –  Union
Territory of Chandigarh and others.
3.    The facts giving rise to the present litigation in a nut-shell are  as
under:
      The respondent was appointed as a Clerk by  the  appellant  Chandigarh
Transport  Undertaking  on  the  quota  reserved  for  ex-servicemen.  
The
respondent had rendered his services to  the  Indian  Army  as  a  Combatant
Clerk upto 31st January, 1990, till the date when  he  was  discharged  from
the Indian Army.
      Upon his appointment as a  Clerk  under  an  office  order  dated  2nd
September, 1992, his  pay  had  been  fixed  and  he  was  paid  his  salary
accordingly.
Only when he retired in 1997, it was brought to the notice  of
the employer, on getting an audit query, that his salary  had  been  wrongly fixed under the order dated 2nd September, 1992.  The mistake  committed  in pay fixation had been rectified by an order dated 13th October, 1998.
4.    Being aggrieved by the re-fixation of  his  pay,  the  respondent  had
made several representations but as no change was effected by the appellant-
employer in the pay so re-fixed, the respondent had approached  the  Central
Administrative Tribunal (hereinafter referred to  as  ‘  the  Tribunal’)  by
filing Original Application No.975/CH/2000.
The said OA had been  dismissed
by the Tribunal by an order dated 4th January,  2002.
 Being  aggrieved  by
the order  rejecting  the  aforestated  O.A.,  the  respondent-employee  had
approached the High Court by filing the aforestated petition which has  been
allowed by an order dated 20th March, 2008 and being aggrieved by  the  said
order and judgment, this appeal has been filed by the employer.
5.    The learned counsel for the appellant had explained the  circumstances
in which the appellant was constrained to re-fix pay of  the  respondent  so
as to rectify the mistake committed while passing  the  pay  fixation  order
dated 2nd September, 1992.
The learned counsel had  taken  us  through  the
relevant regulations with regard to pay fixation of  re-employed  pensioners
and had taken us through  the  provisions  of  the  Central  Civil  Services
(Fixation of  pay  of  Re-employed  Pensioners)  Orders,  1986  (hereinafter
referred to as ‘the Orders’) under which pay  of  the  respondent  ought  to
have been fixed.

6.    The learned counsel for the appellant had submitted  that
there  were
several different notifications and orders in relation to the  pay  fixation
of re-employed pensioners, including ex-servicemen.
So as to see  that  all
the orders are available at one place, the  orders  had  been  compiled  and
notified in 1986 so that pay of the  re-employed  pensioners  can  be  fixed
only upon looking at  the  provisions  of  the  compilation  of  the  Orders
instead of looking at several different orders or  notifications  which  had
been issued from time to time.
Thus, according to the  learned  counsel,  a
comprehensive compilation of all the relevant orders, which had been  issued
from time to time and which were operative in 1996 was duly  considered  for
the purpose of re-fixation of the pay of the respondent.


7.    As the respondent had been given appointment on 15th April, 1990 as  a
Clerk on a post reserved  for  the  ex-servicemen,  the  provisions  of  the
Orders were to be looked into  for  the  purpose  of  pay  fixation  of  the
respondent.  
The learned counsel had further submitted  that  while  fixing
the pay on 2nd September, 1992, the appellant did not look into the  certain
provisions of the Orders and  an  option  exercised  by  the  respondent  in
relation to his pay fixation and therefore, incorrect  pay  had  been  fixed
under the order dated 2nd September,  1992.  
By  virtue  of  the  said  pay
fixation, the respondent was given benefit of his past services rendered  to
the Indian Army and accordingly, he  was  also  given  increments  which  he
would have got in the Indian Army.
As a result  thereof,  the  respondent’s
pay was fixed in a higher scale then what he ought  to  have  been  allowed.
As a matter of fact, as per the provisions of  Order 4 of  the  Orders,  the
respondent could not have been given benefit of his earlier services in  the
process of fixing his pay.
Order 4 of the Orders, being  relevant  for  the
purpose, has been reproduced herein-below:


      “4.   Fixation of pay of re-employed pensions.


      a)    Re-employed pensioners shall be allowed  to  draw  pay  only  in
           prescribed scales of pay for the posts in  which  they  are  re-
           employed.  No protection of the scales of pay of the  post  held
           by them prior to retirement shall be given.






      b)    i)    In all cases where  the  pension  is  fully  ignored,  the
           initial pay on re-employment shall be fixed at  the  minimum  of
           the scales of pay of the re-employed post.


           ii)   In cases where the entire pension and pensionary  benefits
           are not ignored  for  pay  fixation,  the  initial  pay  on  re-
           employment shall be fixed at the same  stage  as  the  last  pay
           drawn before retirement.  If there is no such stage in  the  re-
           employed post, the pay shall be fixed at the  stage  below  that
           pay.  If the maximum of the pay scales in which a  pensioner  is
           re-employed is less than  the  last  pay  drawn  by  him  before
           retirement, his initial pay shall be fixed at the maximum of the
           scales of the re-employed post.  Similarly, if  the  minimum  of
           the scales of the pay in which a  pensioner  is  re-employed  is
           more than the last  pay  drawn  by  him  before  retirement  his
           initial pay shall be fixed at the minimum of the scales  of  pay
           of the re-employed post.   However,  in  all  these  cases,  non
           ignorable  past  of  the  pension  and  pension  equivalent   of
           retirement benefits shall be reduced from the pay so fixed.


      c)    The re-employed pensioner will be in addition to  pay  as  fixed
           under para (b) above shall be permitted to drawn separately  and
           pension sanctioned to him  and  to  retain  any  other  form  of
           retirement benefits.


      d)    In the case of persons retiring before attaining the age  of  55
           years  and  who  are  re-employed,  pension  (including  pension
           equivalent of gratuity and other forms of  retirement  benefits)
           shall be ignored for  initial  pay  fixation  to  the  following
           extent.


           (i)    In  the  case  of  ex-servicemen  who  held  posts  below
           commissioned officer rank in the Defence Forces and in the  case
           of Civilians who held posts below Group (A) posts at the time of
           their retirement benefits shall be ignored.


           (ii)  In the case of service officers belonging to  the  Defence
           Forces and Civilian Pensioners who hold Group ‘A’ posts  at  the
           time of their retirement, the first Rs.500/- of the pension  and
           pension equivalent of retirement benefits shall be ignored.”


 8.   The respondent had been given an option whereby he had opted  for  the
minimum scale of pay, which was paid to the Clerk  and  therefore,  his  pay
had been rightly fixed as per the option read with Order 4(a) of the  Rules.
 The learned counsel had further submitted  that  while  allowing  the  writ
petition, the High Court had not considered the aforestated  facts  at  all.
The High Court did  not look into the fact that an option had been given  to
the respondent-employee and his pay had been fixed only as  per  the  option
exercised by him and as per the provisions of Order 4  of  the  Orders.   It
had, therefore,  been  submitted  that  the  view  taken  by  the  Tribunal,
confirming re-fixation of pay was correct and the High Court  ought  not  to
have disturbed the same by allowing the writ petition.  It  was,  therefore,
submitted that the order dated 20th March, 2009 of the High Court should  be
quashed by allowing the appeal.


9.    On the other hand, the learned counsel appearing for  the  respondent-
employee had at the first instance submitted that  the  respondent  was  not
having a copy of the option and  he  was  not  aware  about  the  option  so
exercised.  He had submitted that the pay had  rightly  been  fixed  by  the
order dated 2nd September, 1992 and it ought not to have  been  re-fixed  to
the prejudice  of  the  employee  after  six  years.    He  had,  therefore,
submitted that the view taken  by  the  High  Court  was  correct.   He  had
further submitted that perhaps  the  respondent  might  have  to  make  some
payment  to  the  appellant-employer  as  according  to  the  employer,  the
respondent had been paid more salary on account of incorrect  pay  fixation.
He had also submitted that recovering the salary so  paid  would  be  unjust
and therefore, in any case, nothing should be recovered from the respondent-
employee.


10.   Upon hearing the learned counsel and upon perusal of the  option  form
dated 18-7-1990, in our opinion,
the High Court was in error while  allowing
the petition because it is clearly revealed from the option  form  that  the
respondent had agreed to get his pay fixed as per the minimum of pay in  the
pay-scale of the Clerk, the post to which he had been  re-employed.  
It  is
pertinent to note that the respondent has been getting regular pension  from
the Indian Army for his past services rendered to the Indian Army.   
As  per
the provisions of the  Orders  and  as  per  the  option  exercised  by  the
respondent, service rendered by the respondent to the Indian Army cannot  be
taken into account for the purposes of his pay fixation  as  the  respondent
would be getting his pension and there would not be any deduction  from  his
pension or his salary on account of the pension received  by  him  from  the
Indian Army.   
If  nothing  has  been  deducted  from  the  pension  of  the
respondent upon being re-employed and  as the respondent would  continue  to
get his pension and other benefits from the Army for his past  services,  in
our opinion, the High Court was not right  while permitting  the  respondent
to get his higher pay fixed by taking into account the services rendered  by
the respondent to the Indian Army.
Even from sound common sense, it can  be
seen that for the past service rendered to the Indian Army,  the  respondent
is getting pension and other  perquisites  which  a  retired  or  discharged
soldier is entitled to even after being re-employed.  
The respondent  would,
therefore, not have any right to get any further advantage in the nature  of
higher salary or a higher  pay  scale,  especially  when  nothing  from  his
salary was being deducted on account of his getting pension  or  perquisites
from the earlier employer.


 11.  In view of the aforestated position, in our opinion, the Tribunal  was
absolutely right in coming to the conclusion that  the  pay  fixation  under
the order dated 13th  October,  1998  was  correct  because  a  mistake  was
committed in the earlier pay fixation under the order dated  2nd  September,
1992.


12.   Though a submission had been made on behalf of the respondent that  no
amount should be recovered from the salary paid to the respondent, the  said
submission can not be accepted because if any amount had been  paid  due  to
mistake, the mistake must be rectified and the amount so paid  in  pursuance
of the mistake must be recovered.
 It might also happen  that  the  employer
might have to pay some amount to the respondent as a result of some  mistake
and in such  an  event,  even  the  appellant  might  have  to  pay  to  the
respondent. 
 Be that as it may, upon settlement  of  the  account,  whatever
amount has to be paid  to  the  respondent  employee  or  to  the  appellant employer shall be paid and the account shall be adjusted accordingly.


13.   For the aforestated reasons, we are of the view that  the  High  Court
was not correct in allowing the writ petition.  We quash and set  aside  the
order passed by the High Court so as to restore  the  order  passed  by  the
Tribunal and give effect to the  pay  fixation  order  dated  13th  October,
1998.  The appeal stands disposed of as allowed with no order as to costs.




                                            ……..…………......................J.
                                                              (ANIL R. DAVE)


                                …….........................................J
                                                               (DIPAK MISRA)
New Delhi
November 01 ,  2013.
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