Swarup Kumar Mishra, Member (J)

1. The case of the applicant in nutshell is that he was appointed as GDSMD, Lenkudipada BO vide Memo dated 18.11.1987 and subsequently entrusted the additional duty of GDSMC, Bhogada BO and while working as such he was drawing his Time Related Continuity Allowance (in short, TRCA) at the slab Rs. 1375-25-2125/- as on 31.12.2005, revision to TRCA was made vide DG (Posts) O.M. dated 09.10.2009 (Annexure-A/1) and, according to him, as per this revision his TRCA was correctly replaced in the revised TRCA slab of Rs. 4220-75-6470/- and he was disbursed 40% of the arrears by 31.10.2009 and rest 60% was paid subsequently after the stipulated date for verification of correctness of fixation of TRCA. However, his TRCA was reduced to the slab of Rs. 3330-60-5130 and respondents started recovery as per impugned order dated 06.09.2011 (Annexure-A/6) from his TRCA @ Rs. 1000/- per month w.e.f. September, 2011 by fixing his TRCA in new slab vide Annexure-A/7. Applicant submitted representation on 18.11.2014 for restoration of his TRCA and refunding the recovered amount. Respondents vide letter dated 17.03.2017 (Annexure-A/13) intimated him that the fixation was made strictly in adherence to the Directorate letter dated 09.10.2009 and correctly in accordance with the work load of the post duly verified by the DA (P), Cuttack. Being aggrieved, the applicant has filed this O.A. praying inter alia as under:

"(a) to quash the orders contained in Annexure-A/6 so far as it relates to the applicant, A/7 & Annexure-A/13.

(b) The respondents may be directed to restore the TRCA of the applicant in the TRCA slab of Rs. 4220-75-6470/- and refund the amount already recovered.

(c) And pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case and allow the OA with cost."

2. Respondents filed their counter opposing the case of the applicant inter alia stating therein that whatever action was taken which is the subject matter of challenge in this O.A. was in accordance with the Directorate letter dated 09.10.2009 (Annexure-R/1) wherein it was instructed vide Annexure-V to the said letter (Annexure-R/1) to fix the TRCA of all GDSs with reference to their existing workload as on 01.01.2006 and cent percent verification of fixation of TRCA to be carried out by the Circle Post Account Office. In compliance of the instruction of the Directorate TRCA of the employees concerned were fixed and arrears paid upon furnishing undertaking by the employee concerned. Thereafter, verification of workload of the concerned GDS of the BOs was undertaken and on strict compliance of the instructions, the excess payments made to the GDSs were sought to be recovered from them. In the instant case, the workload of the applicant was found to be for 58 minutes but as the applicant was engaged prior to 01.01.2006, his TRCA was fixed for a work load of 3 hrs 45 minutes in the scale of Rs. 3330-60-5130 as per Annexure-I of the Directorate letter dated 09.10.2009. Hence, on calculation, it was determined that an amount of Rs. 9551/- was paid to the applicant in excess between 01.01.2006 to 30.09.2009, which was sought to be recovered as per letter dated 06.09.2011 (Annexure-A/6). The refixation and recovery of the excess payment was ordered strictly in accordance with the rules. The representation of the applicant was duly considered with reference to the instruction discussed above and having found no illegality in the decision, the representation of the applicant was rejected and reason of rejection was communicated to him. Accordingly, respondents have prayed that there being no injustice caused to the applicant in the decision making process, this O.A. is liable to be dismissed.

3. According to the Ld. Counsel for the applicant, the impugned order reducing the TRCA and recovering the amount alleged to have been paid in excess, is not legally sustainable because the applicant was drawing TRCA in the pre-revised TRCA slab of Rs. 1375-25-2125/- corresponding to existing workload of more than 3 hrs 45 minutes. On revision, his TRCA was rightly fixed at Rs. 4220-75-6470/-. As per D.G. Post letter dated 04.01.2010 (A/4), the revised TRCA for GDS working as on 31.12.2005 will be in the replacement slabs only. The CPMG(O), Respondent No. 2, in his D.O. letter dated 17.05.2012 clarified that in respect of GDS officials engaged up to 31.12.2005, their TRCA shall be fixed in the corresponding stage w.e.f. 01.01.2006 and for that no statistical data is required to be collected. As per clarification letter No. 6-1/2009-PE.II dt. 04.01.2010 (Annexure-A/3), the revised TRCA for GDS working as on 31.12.2005 will be in the replacement slabs only. Further, in terms of D.G.(Posts) letter dated 11.10.2004 (Annexure-A/8), in the event of an GDS employee being fund short of workload compared to his rate of TRCA, at the first instance attempt should be made to combine the duties of other post as a measure to rationalization and where combination of duty is not feasible, the GDS may be brought from the 2nd TRCA to 1st TRCA by protecting the stage of 1st TRCA. Rule 539 of Postal Manual Vol-IV (Annexure-A/9) provides for mandatory modalities for fixation of TRCA, i.e. periodical review of all the BOs in every three years and revision of TRCA of all the GDSs accordingly. It is the specific case of the applicant that his TRCA has been reduced on a workload statistics collected during the year 06.07.2010 for the period of 2005 by the O/S Mails when no record for the year 2005 was available as the same were weeded out as per Rules and also his work load of GDSMC Bhogada BO has been wrongly omitted. The next submission of the Ld. Counsel for the applicant is that all over the country, except Mayurbhanj and Puri Division under Odisha Circle, followed the procedure of fixation of revised TRCA of GDSs engaged prior to 01.01.2006 by replacing their revised TRCA slab corresponding to pre-revised TRCA slab as stipulated in para 2.2 of Annexure-A/1 but the applicant was debarred his entitled TRCS. Last but not the least, it has been submitted that the applicant being a low paid employee, recovery would cause him immense financial hardship and, therefore, as per the DoP&T O.M. dated 2.3.2016, which was issued in compliance of the order of the Hon'ble Apex Court in the State of Punjab & Ors. Vs. Rafiq Masih (White Washer) CA No. 11527 of 2014 (Arising out of SLP(C) No. 11684 of 2012), recovery is bad in law. Accordingly, it has been submitted by the Ld. Counsel for the applicant that since miscarriage of justice was caused to the applicant in the decision making process of the matter, the Tribunal may interfere and grant the relief as prayed for in the O.A.

4. On the other hand, Ld. Counsel for the respondents drew our attention to the instruction issued by the respondents from time to time based on which after making a thorough investigation on workload of the applicant when it was found that the TRCA allowed to the applicant based on the workload is not correct, the same was rectified and as per the undertaking furnished by the applicant recovery of the excess payment made, to which he was not entitled to, was ordered to be recovered. Insofar as workload is concerned the department is the best authority to decide as per the strength of the work and, therefore, judicial intervention in such matter is not warranted. There being no injustice in the decision making process of the matter and the entire action was taken strictly in accordance with the instruction and workload the scope of judicial interference is not required. Accordingly, he has prayed for dismissal of the O.A.

5. The submission of the rival parties was considered and perused the records.

6. It may be recorded that the work, hour of work, manpower required, is the prerogative of the authority concerned manning the department and the court and Tribunal is not equipped to decide and determine the same. The judicial interference is limited to the extent of any illegality or miscarriage of justice caused in the decision making process of the matter. In the instant case, according to the respondents, the reduction of TRCA was taken effect on evaluation of statistical data of workload which was found to be 58 minutes. Trite is also the position of law that there should not be any discrimination while payment of wages. Mandate of constitution does not permit the employer to pay to a section of its employees doing the same work or a work of a similar nature lesser pay to others by applying the principle in different manner. The report of the workload taken by the authority concerned has not been produced by the respondents. There is no averment or submission from the respondents' side relating to the fact that except the Mayurbhanj and Puri Division of Odisha Circle, others followed the procedure of the fixation of revised TRCA of GDS engaged prior to 01.01.2006 by replacing the revised TRCA slab corresponding to pre-revised TRCA. It is also seen that the respondents sought to recover the excess payment made between 01.01.2006 to 30.09.2009 vide order dated 206.09.2011 without affording him any opportunity in compliance with the basic principles of natural justice. It is noted that fair play is part of public policy and a guarantee for justice to citizens. In our system of Rule of Law, every social agency conferred with power is required to act fairly so that social action would be just, and there would be furtherance of the well-being of citizens. Further, natural justice generally require that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representation on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they had to meet [K.I. Shephard & Ors. Vs Union of India & Ors, 1988 AIR 686]. It is seen that based on the workload collected during 2010 for seven days of workload of the year 2005, the TRCA of the applicant has been reduced, which appears to be illegal, arbitrary and irrational and, based on such statistics, reduction of TRCA is not justifiable.

7. The applicant, in the present case, is a low paid GDS employee and, thus, recovery would certainly cause him undue financial hardship, which is contrary to law laid down by the Hon'ble Apex Court in various decision and the leading decision in the case of Rafiq Masih (supra)/DoP&T circular referred to above. In view of the discussions made above, for the ends of justice the following direction is issued.

(a) By following the law and DoP&T order, recovery is declared as bad in law and the respondents are directed the return the recovered amount within a period of 30 days from the date of receipt of this order.

(b) The Respondents shall reverify the workload statistics once again to redetermine applicant's TRCA after giving due opportunity to the applicant in this regard. The result of the compliance of the direction as above be communicated to the applicant in a reasoned order within a period of four months of receipt of a copy of this order.

8. In the result, the O.A. is allowed to the extent as above. No costs.