1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No. 333 of 2004 Smt. E.S.S. Almeida, resident of House No. 67, Sagar Society, Dona Paula-Goa-403 004. ... Petitioner V e r s u s 1. The Director General, Council of Scientific and Industrial Research (CSIR) Anusadhan Bhawan, Rafi Marg, New Delhi. 2. The Director, National Institute of Oceanography, Dona Paula-Goa-403 004. ... Respondents Shri J. Supekar, Advocate holding for Shri M. S. Sonak, Advocate for the Petitioner. Shri B. P. Natekar, Advocate holding for Shri S. N. Joshi, Advocate for the Respondents. Coram: S. B. DESHMUKH & F.M. REIS, JJ. Date: 2 nd February, 2011. ORAL JUDGMENT (per S.B. Deshmukh, J): We have heard learned Counsel appearing on 2 behalf of the respective parties. Our earlier order passed on 27-01-2011 records submissions made by Advocate Shri Sonak for the petitioner and absence of learned Counsel appearing on behalf of the respondents. 2. The petitioner approached to this Court with following prayers:- (A) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 24-09-2003. (B) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the respondents to award pay scale of Rs. 1400/- to Rs. 2600/- to the petitioner with effect from 01-08-1984 in terms of the Judgment and order dated 15-06-1994 of the Central Administrative Tribunal. (C) This Hon'ble Court also be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, restraining the respondents from recovering an amount of Rs. 4,018/-. (D) That pending the hearing and final disposal of this petition, this Hon'ble Court be 3 pleased to grant an appropriate order or direction, directing the respondents to award pay scale of Rs. 1400/- to Rs. 1600/- with effect from 01-08-1984 in terms of the Judgment and order dated 15-06-1994 of the Central Administrative Tribunal. (E) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondents from recovering the amount of Rs. 4,018/- from the petitioner. (F) For ad-interim ex-parte relief in terms of prayer clauses (D) and (E) herein above. (G) For such other and further reliefs that this Hon'ble Court deems fit and proper. (H) For costs. 3. This petition was filed by the present petitioner on 15-07-2004. The dispute was originally raised by the petitioner, before the Central Administrative Tribunal Bombay Bench, Camp at Panaji, Goa. The present respondents were the respondents in Original Application No. 457/91. After hearing the learned Counsel for the respective parties, the learned Central Administrative Tribunal held that applicant (present petitioner) was entitled to the relief claimed. 4 Direction was given to the respondents therein by giving higher scale of Rs. 1400-2600 w.e.f. 01-08-1984 instead of 18- 12-1986 to the petitioner. Such entitlements were directed to be worked out within three months from the date of the receipt of the order, to be paid to the petitioner within that period. Parties were directed to bear their own costs. 4. Learned Central Administrative Tribunal recorded only one question which was brought before that Tribunal by the present applicant/petitioner. It reads as:- "The only question which arise for consideration in the present case is whether the applicant should have been granted special grade w.e.f. 01-08-1984 instead of from 18.12.1986" Answer to this question has been given by the learned Central Administrative Tribunal. 5. This Court on 07-09-2004, after hearing learned Counsel Shri Sonak for the petitioner and Shri Joshi for the 5 respondents, issued Rule and Rule on interim relief in terms of prayer clause (E) returnable after four weeks. We have noticed one more order, which was passed on 19-10-2004. By order dated 19-10-2004, after hearing the learned Counsel for respective parties, interim stay in terms of prayer clause (E) was granted. The text of the order passed on 19-10-2004 reads as follows: "Heard. Interim stay in terms of prayer clause (E) which reads as under: (E) That pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to restrain the Respondents from recovering the amount of Rs. 4,018/- from the Petitioner". Thereafter, matter was adjourned from time to time either at the request of the petitioner or respondents. 6. On behalf of the respondent, affidavit in reply was presented in the Court (page-94). In the said affidavit it is stated that petitioner was initially appointed at National Institute of Oceanography as a telephone operator on 17-04-1970. She was promoted as a receptionist on temporary 6 basis initially for a period of three months. She was continued on temporary basis till 17-12-1975. From 18-12-1975 onwards, according to the respondents, she was appointed on promotion as a receptionist in the pay scale of Rs. 330-10-380- EB-12-500-EB-15-560. According to the affidavit, on completion of 11 years service as a receptionist, on the recommendations of the Departmental Promotion Committee, she was appointed as receptionist w.e.f. 18-12-1986 in the pay scale of Rs. 425-15-500-EB-15-560-20-700-EB-25-800. On implementation of the Fourth Pay Commission, petitioner was re-fixed in corresponding pay scale of Rs. 1400-40-1600-50- 2300-EB-60-2600. In para 4 of the affidavit, it has been contended by the respondents, that the respondents have referred to Judgment and order dated 15-06-1994. The respondents further states that while passing the said Judgment dated 15-06-1994, the learned Central Administrative Tribunal referred only to the pay scale of 1400-2600 instead of pay scale of Rs. 425-15-500-EB-15-560-20-700-EB-25-800 upto 31-12-1985 and Rs. 1400-40-1600-50-2300-EB-60-2600 from 7 01-01-1986 onwards. Pursuant to the Judgment of the learned Central Administrative Tribunal, pay fixation was done by respondents. We have considered pages from 61 to 63 placed on record by respondents. Grievance by respondents in para 5 of the affidavit is that, while calculating the pay fixation, the office realized that petitioner was paid more than what was actually due to her. According to respondents, chart for such period from August, 1984 to July, 1995 was calculated by respondents and such excess payment was to the tune of Rs. 4,018/- (Rupees Four Thousand and Eighteen Only). On this perception realization of recovery is due from the present petitioner. Details in tabular form has been placed on record at page-64. It is also contended at para 6 of the affidavit that on implementation of Fourth Pay Commission w.e.f. 01-01- 1986, the pay scale of Rs. 330-560 was revised as Rs. 1200- 2040. According to the respondents, such pay scale of Rs. 1400-2600 did not exist prior to promotion on special grade, 8 the petitioner was entitled to corresponding scale of 425-800 from 01-08-1984 to 31-12-1985 and the pay scale of 1400- 2600 from 01-01-1986 onwards. Factually, it has been contended that after order passed by learned Central Administrative Tribunal, present petitioner had filed Contempt Petition No. 1/1995 before the learned Central Administrative Tribunal which was disposed of after hearing the petition on merits. In para 9 of the affidavit, it is pointed out that after disposing of the contempt petition, the petitioner raised the issue decided in O.A. No. 457/1991 by filing a fresh petition before the Central Administrative Tribunal, registered as O.A. No. 800/2001. The learned Division Bench of the Central Administrative Tribunal after hearing the parties dismissed the application on merits. In para 10 it is contended that despite of discrepancies in O.A. No. 800/2001 and Contempt Petition No. 1/1995, the petitioner has dragged the respondents once again by filing this petition before this Court. 9 With the above contentions, it is requested by the respondents, that this Court may dismiss the writ petition filed by the petitioner. 7. We have noticed one more affidavit in reply at page-113. This affidavit in reply is sworn in on behalf of the respondents, in response to the affidavit dated 02-03-2009 filed by the petitioner. It is so stated in the affidavit that the petitioner has attempted to mislead this Court. This affidavit is filed by the respondents on 16-03-2009. We have considered the rejoinder filed by the petitioner on 29-04-2009 at page-120. It is sworn in by the present petitioner. We have also considered the Judgment passed by the learned Division Bench in C.P. No. 1/95 in O.A. No. 457/91 at page-166. Apart from the affidavit and additional affidavit, affidavit in sur-rejoinder is also filed on behalf of the respondents at page-167. This time, the affidavit 10 was sworn in by one Shri Mohan Dalvi, Controller of Administration, National Institute of Oceanography at the relevant time. In para 5 of this affidavit, it is stated that in para 6 of the affidavit in rejoinder filed by the petitioner, the petitioner has attempted to create further confusion. Payments made to the petitioner is reflected in para 6 prior to order dated 15-06-1994. According to the respondents, the respondents placed on record before the learned Central Administrative Tribunal, the details of the pay drawn prior to the Judgment as well as subsequent to the Judgment alongwith the abstract drawn every month upto July, 1995. This affidavit sworn in by Shri Mohan Dalvi ultimately seeks dismissal of this petition. 8. Learned Counsel appearing on behalf of the petitioner submits that petitioner had a grievance and as such approached to learned Division Bench of Central Administrative Tribunal by filing O.A. No. 457/91 which was disposed of by learned Division Bench of Central Administrative Tribunal with some direction. According to the 11 petitioner, order passed by the learned Division Bench of Central Administrative Tribunal in O.A. No. 457/91 was not challenged by the respondents. It has attributed finality. Excess payment, if any, made to the employee without his or her fault, whether can be recovered is the crucial question. There are two aspects of the matter, if employee has mislead the authority or employer and got the amount, it may be one of the circumstances for recovery. If, such excess amount paid by the employer without any participation or fault of the employee, then such amount cannot be recovered from the employee. Such questions are raised before the court, time and again. Advocate Shri Sonak has relied on un-reported judgment in Writ Petition No. 121 of 2001 passed by this Division Bench on 21-12-2005. The petitioners were lecturers in some educational society/college run by Government of Goa and affiliated to the Goa University in the stand of the Government not to grant senior scales. This Court has noticed and recorded controversy of the petitioner and respondent. In para 3 of the order facts relating to Smt. 12 Vaishali Samant have been listed. At para 4 controversy of the petitioner Dr. Anil S. Dinge has been recorded. In para 5 reference is made of the petitioner Shri Srinivas D. Gokakakar. This Court recorded that grant in aid in that case was given by the State Government and was revised from time to time. There was some amended revised scales recorded in paras 7 and 8 of the order. We have seen the judgment and the facts brought before this Court and the prevailing statute considered by this Court. In our opinion para 14 of the order is relevant. Learned Division Bench has noticed well recognized principle that recoveries are ordered in case of salaried persons only if malafides or fraud on part of the employee is established. This Court has recorded the same finding of the Hon'ble Supreme Court. At para 14 of the order, reliance is placed on State of Karnataka & Another V/S Mangalore University Non-teaching Employees Association & Others, (2002) 3 Supreme Court Cases 302. The Hon'ble Supreme Court observed that when the employees concerned drew the 13 allowances on the basis of financial sanction accorded by the competent authority i.e. to say the Government and they incurred additional expenditure towards house rent, the employees should not be penalized for no fault of theirs and, therefore, it would be totally unjust to recover the amounts paid between 01-04-1994 and the issuance of GO No. 42, dated 13-02-1996. 9. We have considered the case at hand and facts brought to our notice by the parties. It is the stand of the respondents that the office of the respondents realized the excess payment made to petitioner. It is suffice to note that there is no fault of the petitioner or no malafides of the petitioner were noticed for such excess payment. We have considered sum of such excess payment which is Rs. 4,018/- (Rupees Four Thousand and Eighteen only). In our opinion the grievance raised by the petitioner is justified. Impugned order in this writ petition dated 24-09-2003 passed by the learned Central Administrative Tribunal, in our opinion is not