Facts
The applicants, employees of Jawahar Navodaya Vidyalaya, were sanctioned both Special Compensatory (Remote Locality) Allowance (SCA) and Hard Area Allowance (HAA) due to their posting in Lakshadweep Islands.
Source reference: p.4The payment of one allowance was stopped in August 2017.
Source reference: p.4Subsequently, an audit objection led to an order for recovery of excess payment for the period from 01.09.2008 to 30.06.2017.
Source reference: p.4, Annexure A-5The applicants contended that the recovery order was issued without prior notice and that they had no role in sanctioning the allowances, which were paid to all other employees in Minicoy and other Lakshadweep Islands.
Source reference: p.4-5They also highlighted that two internal audits in 2009 and 2011 did not identify any irregularity in the allowances drawn.
Source reference: p.5The O.M.No. 12/4/2008-E.II(B) dated 29.8.2008 (Annexure A1), which sanctioned HAA, did not explicitly stipulate an option to choose between SCA and HAA, unlike the later O.M.No. 13/1/2017-E.II(B) dated 14.7.2017 (Annexure A14).
Source reference: p.6, para. 6The respondents argued that similar cases had previously directed recovery, either one-third from retired employees or the entire amount from serving personnel in installments, and therefore such an order should apply to the applicants.
Source reference: p.7, para. 8They further stated that JNV, Minicoy allowed two SCAs in contravention of Ministry of Finance orders (Annexure A-4).
Source reference: p.7, para. 8Issues
1. Whether the recovery of excess Hard Area Allowance (HAA) and Special Compensatory (Remote Locality) Allowance (SCA) from the applicants for the period from 01.09.2008 to 30.06.2017 is permissible under law.
Source reference: p.4, item (i)2. Whether the lack of explicit instruction to opt between HAA and SCA when HAA was sanctioned, and the absence of prior notice to the applicants for recovery, makes the recovery order illegal and void.
Source reference: p.4-5, para. 3-4Law Applied
The court primarily applied the principles laid down by the Hon'ble Supreme Court in State of Punjab and others etc Vs Rafiq Masih (White Washer), Civil Appeal No 11527 of 2014 dated 18.12.2014, which established situations where recovery of excess payments from employees would be impermissible.
Source reference: p.3, p.9, para. 11Specifically, the DoPT O.M. dated 02.03.2016 (Annexure-A9), issued in consonance with the Rafiq Masih case, states that recovery from employees is impermissible when the excess payment has been made for a period exceeding five years before the recovery order is issued.
Source reference: p.10, para. 11, Clause 4(iii)The court also considered the judgment of the Hon'ble High Court of Kerala in OP(CAT) No.62 of 2015 dated 03.03.2020 (Annexure-A18), which emphasized that recovery should not be made from employees who were paid both allowances without being required to exercise an option, balancing the hardship of recovery against the government's right.
Source reference: p.10-12, para. 12Reasoning
The Tribunal found that the O.M. dated 29.08.2008 (Annexure A-1), which granted HAA, did not contain a specific clause requiring employees to choose between SCA and HAA or to opt for the more beneficial allowance, unlike the earlier notification of 01.03.2004 (Annexure A-4).
Source reference: p.8-9, para. 10The applicants were not given an option when both allowances were granted, and the irregularity was not detected during audits conducted in 2009 and 2011, but only after a decade by an AG audit in 2018.
Source reference: p.9, para. 10The court noted that the proposed recovery covered a period of approximately 9 years (September 2008 to August 2017), which exceeded the five-year limit stipulated by the Rafiq Masih judgment and DoPT O.M. dated 02.03.2016 (Annexure-A9), making Para 4(iii) squarely applicable.
Source reference: p.9-10, para. 11The Tribunal distinguished the respondents' reliance on previous OAs where recovery was permitted, by noting that in those cases, an undertaking was furnished by the applicants, which was absent here.
Source reference: p.9, para. 11Furthermore, the lack of notice prior to the recovery order was highlighted as a flaw.
Source reference: p.8, para. 9The High Court of Kerala judgment (Annexure A-18) also supported the view that where employees were not given an option and payments were made, imposing recovery would be an "onerous hardship".
Source reference: p.11-12, para. 12Holding
The Original Application is allowed, and Annexure-A5, which ordered the recovery of excess amounts from the applicants, is quashed.
The Tribunal concluded that the recovery is impermissible based on the DoPT O.M. dated 02.03.2016 (Annexure-A9) and the spirit of the Hon'ble High Court of Kerala's judgment in OP(CAT) No.62 of 2015 dated 03.03.2020.
Source reference: p.12, para. 13No costs were awarded.
Source reference: p.12, para. 13Original Court PDF
Vijayan P .K. & Ors. v. The Principal, Jawahar Navodaya Vidyalaya & Ors. O.A No. 180/00537/2019
Click to open original judgment
Original judgment, available to read, download and summarize on LawLens.in