Recovery of excess pay from Group C employees is impermissible absent fraud or misrepresentation.

The applicant retired from the Indian Army as a Havaldar on 1 December 2003 and was re-employed as a Fire Engine Driver-A on 3 May 2007.

His pay was fixed under the applicable instructions, including the DoPT Office Memorandum dated 5 April 2010.

Following later clarifications concerning pay fixation of re-employed Personnel Below Officer Rank (PBOR), the respondents issued an order dated 6/10 January 2020 withdrawing the earlier pay-fixation benefits and directing recovery of excess payments.

The applicant challenged that order before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985.

Whether the respondents could retrospectively revise the applicant’s pay fixation, after a substantial delay, on the basis of later clarifications concerning re-employed PBOR.

Whether recovery of the alleged excess payment was permissible where the applicant was a Group C employee and no fraud or misrepresentation by him was alleged.

Section 19 of the Administrative Tribunals Act, 1985 provides the forum for the applicant’s challenge.

The Tribunal considered the DoPT Office Memorandum dated 5 April 2010 and subsequent clarifications concerning pay fixation of re-employed ex-servicemen.

It relied on State of Punjab v. Rafiq Masih, which identifies circumstances in which recovery of excess payments by an employer is impermissible, including recovery from Group C and Group D employees, retired employees or employees nearing retirement, and recovery relating to payments made more than five years before the recovery order.

It also applied the coordinate Bench’s decision in Deo Raj Singh & Ors. v. General Manager, Ordnance Factory & Ors., O.A. No. 151/2020, which held on the facts before it that retrospective re-fixation after a long delay and recovery from employees who had not misrepresented their entitlement were not justified.

The Tribunal treated the controversy as covered by the coordinate Bench’s decision in Deo Raj Singh and applied its directions mutatis mutandis.

The applicant was a Group C employee, and the record disclosed no fraud or misrepresentation on his part in obtaining the original pay fixation.

The Tribunal adopted the coordinate Bench’s reasoning that applying later clarifications retrospectively after a lapse of many years did not justify re-fixation at that stage; it also relied on Rafiq Masih in finding recovery impermissible in the circumstances.

Accordingly, it set aside the impugned order and directed restoration of the applicant’s pay to the position before re-fixation.

It directed the respondents to restore the applicant’s pay to the scale drawn before re-fixation and, if any amount had been recovered, to refund it within three months with simple interest at 6% per annum.

No order as to costs was made.