Kerala High Court
Xavier A. A vs The Bsnl on 4 November, 2025
OP (CAT) NO. 6 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947
OP (CAT) NO. 6 OF 2021
AGAINST THE ORDER DATED 08.01.2021 IN OA NO.823 OF 2019 OF CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:
XAVIER A. A.
AGED 61 YEARS
(HR NO.198808587), JTO (RETIRED), ATTUPURAM HOUSE, CHERUKUNNAM,
ASSAMANNOR P. O., PIN - 683549, DIST. ERNAKULAM.
BY ADVS.
SHRI.VINAY KUMAR VARMA
SHRI.N.K.KARNIS
RESPONDENT/S:
1 THE BSNL
(THROUGH CHAIRMAN AND MANAGING DIRECTOR), CORPORATE OFFICE, BHARAT
SANCHAR BHAWAN, HARISH, CHANDER MATHUR LANE, JANPATH, NEW DELHI -
110001.
2 THE CHIEF GENERAL MANAGER MAINTENANCE, SOUTH TELECOM REGION, 11 LINK
ROAD, GANAPATHY COLONY, GUINDY, CHENNAI - 695033.
3 THE PRINCIPAL GENERAL MANAGER MAINTENANCE STR
MICROWAVE STATION BUILDING, DESHABHIMANI ROAD, KALOOR, ERNAKULAM -
682017.
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4 PRINCIPAL CONTROLLER OF COMMUNICATION ACCOUNTS
TAMIL NADU CIRCLE, NO.60, ETHIRAJ SALAI, TNT COMPLEX, EGMORE, CHENNAI -
600008.
BY ADVS.
SRI.GEORGE KURUVILLA(ALAPPUZHA)
SHRI.K.S.PRENJITH KUMAR, CGC; SMT O M SHALINA, SRI T V VINU CGC
THIS OP (CAT) HAVING RESERVED ON 29.10.2025, THE COURT ON 04.11.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
The present Original Petition, filed under Article 227 of the
Constitution of India, assails the order dated 08.01.2021 passed in
Original Application No. 180/00823/2019 by the Central Administrative
Tribunal, Ernakulam Bench, whereby the Original Application was
dismissed.
Facts:
2. The brief facts of the case are that the petitioner, who was
working as a Junior Telecom Officer in Bharat Sanchar Nigam Limited
(BSNL), superannuated from service on 31.07.2019. Subsequently, an
order dated 30.09.2019 was issued by the 3rd respondent, re-fixing the
petitioner's pay retrospectively with effect from 01.01.2007 and
reducing the pay with effect from 01.01.2007. The petitioner also
challenged the October 2019 order of recovery for an amount of Rs.
12,17,980/-, to the extent it sought recovery from gratuity and
commutation benefits, as well as the order dated 02.11.2019 whereby the
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3rd respondent directed recovery of Rs. 1,37,900/- towards alleged
overpayment.
3. In the year 2014, the petitioner was regularly promoted to the
post of Junior Telecom Officer and continued to hold the said post on a
regular basis until his superannuation from service on 31.07.2019. In the
meanwhile, a Pay Revision Committee was constituted by the
Government of India for the purpose of revising the pay of Executives of
the Central Public Sector Enterprises (CPSEs), and its recommendations
were accepted. The Tribunal dismissed the Original Application, and the
operative portion of the order is reproduced below:
"9. We have heard learned counsel for the applicant Shri. Vinay Kumar
Varma and learned counsel for the Respondent Nos.1-3 Shri. George
Kuruvilla. In addition, reply is filed by the Respondent No.4, the Principal
Controller of Communication Accounts, Tamil Nadu Circle, which
indicates that the office of the Respondent No.4, being the pension
sanctioning authority, has no role regarding overpayment of pay and
allowances and issue of show cause notice for recovery of payment of pay
and allowances.
10. The case of the respondents is that the applicant is not covered under
the stipulation laid down in Para 12 (ii) and (iii) of Rafiq Masih's case cited
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supra. They have submitted that the wrong fixation of pay and excess
payment of salary commenced in the year 2009 while implementing the
pay revision based on Annexure A-7 Executive Pay Revision order dated
05.03.2009. On noticing the erroneous fixation, Annexure R-3(f) order for
rectification of the wrong fixation and recovery of overpayments was
ordered in the year 2012 itself. This could not be enforced due to pending
litigations till the High Court finally settling the issue by Annexure R-3(b)
order in February, 2020. Thus, though the applicant retired only in July
2019 the recovery proceedings were initiated way back in 2012. Hence,
Para 12 (ii) of Rafiq Masih's case cited supra has no application.. Further,
Para 12 (iii) too has also no application as recovery was initiated within
three years of the commencement of the excess payment. After
examination of the documents and circumstances we accept the
contention of the respondents relating to the non-application of Rafiq
Masih's case cited supra to the case of the applicant. We hold that the
criteria prescribed by Paras 12 (ii) and 12 (iii) of Rafiq Masih's case do not
apply to the case of the applicant in as much as the order of rectification
of fixation and recovery of over payment was initiated and ordered
within three years of pay revision order in 2012 and much before his
retirement. Due to pending litigation in various fora the same could not
be actually effected. Thus, the criteria mentioned in Para 12 (ii) and (iii)
of Rafiq Masih cited supra do not apply in this matter.
11. As we have concluded that criteria as mentioned in Paras 12 (ii) and
12 (iii) of Rafiq Masih cited supra do not apply, the other issue to be
adjudicated ie., relating to the question of lack of availability of the
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undertaking purported to have been submitted at the time of revision of
pay by the applicant has to be viewed only in this context. Jagdev Singh's
case cited supra has in Para 11 only held that the principle enunciated in
proposition Para 12 (ii) in Rafiq Masih cannot apply to a situation such as
was in the case under consideration therein, where the officer to whom
the payment was made in the first instance was clearly placed on notice
that any payment found to have been made in excess would be required
to be refunded. In this matter, the Hon'ble Supreme Court only observed
that since the officer furnished an undertaking while opting for the
revised pay scale, he is bound by the undertaking. In this O.A., however,
we have already held that Para 12 (ii) does not apply at all. Further, the
respondents have claimed that the applicant had submitted an
undertaking which is now not traceable, whereas the applicant took a
plea only at the time of hearing that he had not done so. We have already
noted that though the contention of the applicant during the final
hearing was that he had not furnished any undertaking at the time of
revision of pay, it does not seem to have been pleaded as such by him in
the O.A.
12. We note that the report of the three-member committee indicates
that undertakings were collected from all the officers as a prerequisite
for disbursement of pay arrears and were kept in bundles instead of
pasting it in the service books. The respondents have submitted that
inspite of their best efforts only one bundle could be traced out in their
search though it was supposed to have been kept in the AO(P&A) Section.
Their submission is that non tracing of the undertakings cannot be
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construed as "no undertaking given by the applicant" especially when
the applicant did not have a case in the O.A that he has not given any
undertaking as provided in the Annexure A-7 pay revision order. They
have also pointed out that no such case has been pleaded at any point. of
time by any of the similarly situated litigant officials who are more than
300 in number. On the other hand, Annexure R- 3(i) is the undertaking
given by the applicant in 2015 at the time of fixation of pay on merger of
78.2% IDA in the old scale of pay, agreeing for recovery of excess amount
if any found later on.
13. In the facts and circumstances of this case, we hold that the non-
tracing of the undertaking given by the applicant subsequent to
Annexure. A-7 pay revision order does not fatally harm the process of
recovery since we have already squarely found that Para 12 (ii) of the
eriteria in Rafiq Masih does not apply. The applicant had also submitted
a similar undertaking in 2015 at the time of fixation of pay on merger of
78.2% IDA in the old scale of pay. It seems to us that his argument that no
undertaking was given was an afterthought after the query by this
Tribunal at the time of admission hearing did not result in the production
of a copy of the undertaking. We also find that the order for recovery was
made well within the time prescribed and does not fall in the face of the
relevant criteria cited in Rafiq Masih's case cited supra.
14. We, therefore, do not find merit in the reliefs sought by the applicant.
The O.A is accordingly dismissed. The respondents are accordingly
allowed to recover the total amount of Rs:1217980/- (due to over
payment of pay and allowances of Rs.1080080/- plus leave encashment of
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Rs.137900/-) from the applicant as per Annexure A-2. The interim order
on stay of recovery for payments effected is vacated. There shall be no
order as to costs."
Petitioner's submission:
4. The learned counsel for the petitioner submitted that the
order of the Tribunal suffers from errors of law and fact apparent on the
face of the record and is, therefore, patently illegal and unsustainable. It
was contended that the Tribunal erred in concluding that the
petitioner's case would not be covered under propositions (ii) and (iii)
laid down by the Hon'ble Supreme Court in State of Punjab v. Rafiq
Masih1. The Tribunal erroneously concluded that the recovery
proceedings had commenced as far as in 2012, relying solely on
Annexure R3(f) dated 11.10.20212. The said recovery pertains to an
amount of alleged overpayment due to wrong pay fixation.
4.1 The learned Counsel further submitted that, in identical
(2015) 4 SCC 334
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situations, Original Applications were filed challenging the pay fixation,
and Review Applications were subsequently filed, whereby the order
passed by the Tribunal was set aside and reversed. Thereafter, the
Central Administrative Tribunal upheld the order passed in the Review
Applications.
4.2 The petitioner filed Special Leave Petition (Civil) No. 5943 of
2021, wherein the Hon'ble Supreme Court, in an identical situation and
applying the directions contained in Rafiq Masih (supra), set aside the
order of recovery and disposed of the Special Leave Petition with a
direction that there shall be no recovery of the higher emoluments
already paid to the appellants therein for officiating on the post of JTO,
even though they had been substantively appointed to the post of
Telegram Technical Assistant.
4.3 The learned Counsel for the petitioner further contended that
the petitioner had not given any undertaking at the time of refixation.
Hence, the Tribunal erred in dismissing the writ petition, since no
recovery can be effected from an erroneous fixation of pay, particularly
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when the petitioner was not responsible for such fixation and the higher
scale was granted by the respondents themselves. Although Rafiq Masih
(supra) was considered by the Tribunal, it failed to appreciate the
guidelines laid down by the Hon'ble Apex Court, wherein specific
parameters regarding recovery have been prescribed. He further
submitted that the refixation was carried out after a lapse of five years
from the date on which the benefit had been granted to the petitioner.
Therefore, as per clause (iii), no recovery can be effected. Clause (ii) of
Rafiq Masih (supra) would also apply, since the petitioner has already
retired from service and the refixation order was passed only after his
retirement.
Respondent's submission:
5. Per contra, the learned Counsel for the respondents submitted
that the Tribunal had rightly dismissed the Original Application,
inasmuch as the petitioner had furnished an undertaking agreeing to
refund any amount found objectionable by the audit or detected as a
mistake. Therefore, the respondents are entitled to recover the same.
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The case relied upon by the petitioner, i.e., Rafiq Masih (supra), is not
applicable to the facts and circumstances of the present case,
particularly when the employee, to whom the payment was made in the
first instance, had been clearly placed on notice that any excess payment
detected would be liable to refund. Hence, the order passed by the
Tribunal is just and proper and calls for no interference.
Discussion and Analysis:
6. Heard Mr Vinay Kumar Varma learned Counsel for the
petitioner, Mr George Kuruvila (Alappuzha) for respondent Nos. 1 to 3,
and Mr T.V. Vinu learned Central Government Counsel, for respondent
no.4.
7. On perusal of the impugned order, it is seen that the recovery
from the petitioner pertains to the pay fixation made in the year 2019,
relating to a period of five years prior to the grant of the benefit.
Therefore, the present recovery was initiated after a lapse of more than
five years.
8. Even otherwise, the recovery of the amounts in Annexure A2
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and A3 from the petitioner is wholly unjustified in view of the judgment
of the Supreme Court in Rafiq Masih (supra). Paragraph 18 of the said
judgment, which is relevant, is extracted hereunder:
"18. It is not possible to postulate all situations of hardship, which would
govern employees on the issue of recovery, where payments have
mistakenly been made by the employer, in excess of their entitlement. Be
that as it may, based on the decisions referred to herein above, we may,
as a ready reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service
(or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire
within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made
for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required
to discharge duties of a higher post, and has been paid accordingly, even
though he should have rightfully been required to work against an
inferior post.
(v) In any other case, where the Court arrives at the conclusion, that
recovery if made from the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh the equitable balance
of the employer's right to recover."
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8.1 The case of Rafiq Masih (supra), specifically clauses (ii) and
(iii), is applicable to the facts and circumstances of the present case. The
Tribunal erred in concluding that Rafiq Masih (supra) was not
applicable. In the present case, admittedly, no undertaking was
produced either before the Central Administrative Tribunal or before
this Court. Therefore, the question of giving an undertaking does not
arise.
9. Secondly, the petitioners herein had already superannuated
prior to the issuance of the refixation order, i.e., on 30.09.2019.
Moreover, identical petitions have been allowed by the Hon'ble Supreme
Court, directing that no recovery can be effected, applying the principles
laid down in Rafiq Masih (supra). In the above facts and circumstances,
the Tribunal has committed an error in dismissing the Original
Application.
9.1 In the present case, the petitioner has already been granted
the reliefs as claimed in paragraph 8(i) and paragraph 8(ii) of the
Original Application, in favour of the petitioner. Thus, the only issue left
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to be adjudicated in this case is in relation to recovery only.
Conclusion:
10. Accordingly, the Original Petition is allowed, and the order
dated 08.01.2021 passed in Original Application No. 823 of 2019 is hereby
set aside. The Original Application stands dismissed. No order as to
costs. All Interlocutory Applications as regards interim matters stand
closed.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
P. V. BALAKRISHNAN
JUDGE
jjj
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APPENDIX OF OP (CAT) 6/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER IN O.A.823 OF 2019 DATED 08.01.2021
PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION NO.823 OF 2019 FILED BY
THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.
ANNEXURE A1 TRUE COPY OF PAY FIXATION ORDER BEARING NO.PGMM STR ENK/33-
S/2861/XAA/PEN/19 DATED 30.09.2019 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT.
ANNEXURE A2 TRUE COPY OF ORDER BEARING NO.PGMM STR ENK/33/S-2861/2019-
20/XAA/PEN/20-1 DATED .10.2019 ISSUED FROM THE OFFICE OF THE
3RD RESPONDENT.
ANNEXURE A3 TRUE COPY OF ORDER BEARING NO.PGMM STR ENK/33/S-
2861/XAA/PEN/21 DATED 02.11.2019 ISSUED FROM THE OFFICE OF THE
3RD RESPONDENT.
ANNEXURE A4 TRUE COPY OF PROMOTION ORDER BEARING NO.GM/STR/ENK/33/M-
2211/2014-15/64 DATED 08.08.2014 ISSUED FROM THE OFFICE OF THE
3RD RESPONDENT.
ANNEXURE A5 TRUE COPY OF PAY FIXATION MEMO NO.ESTT/PAY REVSN-2007/2014-
15 DATED 21.04.2014 ISSUED FROM THE OFFICE OF THE 3RD
RESPONDENT.
ANNEXURE A6 TRUE COPY OF REPRESENTATION DATED 16.08.2014, SUBMITTED BY
THE APPLICANT TO THE 2ND RESPONDENT.
ANNEXURE A7 TRUE COPY OF OFFICE ORDER NO.1-50/2008-PAT (BSNL) DATED
05.03.2009, ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A8 TRUE COPY OF PAY FIXATION MEMO NO.33/GM STR ENK/PAY FIX
DATED 08.05.2015 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.
ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 29.10.2019, SUBMITTED
BY THE APPLICANT TO THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE
RESPONDENTS 1 TO 3 IN ORIGINAL APPLICATION NO.823 OF 2019.
ANNEXURE R3(a) TRUE COPY OF THE ORDER DATED 22.08.2016 IN R.A.30/2015 IN OA
1022/2012 AND CONNECTED CASES.
ANNEXURE R3(b) TRUE COPY OF THE JUDGMENT DATED 06.02.2020 OF THE HIGH COURT
IN OP(CAT) 118/19 AND CONNECTED CASES.
ANNEXURE R3(c) TRUE COPY OF THE ORDER DATED 18.09.2019 OF THE OFFICE OF THE
CGM KERALA CIRCLE.
ANNEXURE R3(d) TRUE COPY OF THE CLARIFICATION DATED 16.03.2009 OF THE KERALA
CIRCLE.
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ANNEXURE R3(e) TRUE COPY OF THE PAY REVISION ORDER FOR NON-EXECUTIVE OF
BSNL DATED 07.05.2010.
ANNEXURE R3(f) TRUE COPY OF THE ORDER DATED 11.10.2012 OF THE CGM KERALA
CIRCLE.
ANNEXURE R3(g) TRUE COPY OF THE ORDER IN OA 306/2013 AND CONNECTED CASES OF
THE CAT ERNAKULAM.
ANNEXURE R3(h) TRUE COPY OF THE COMMITTEE REPORT DATED 29.01.2020.
ANNEXURE R3(i) TRUE COPY OF THE UNDERTAKING DATED 27.05.2015 GIVEN BY THE
APPLICANT.
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE
RESPONDENT 4 IN ORIGINAL APPLICATION NO.823 OF 2019.
