Central Administrative Tribunal - Delhi
Ram Phal Giri vs Union Of India on 18 January, 2011
Central Administrative Tribunal Principal Bench O.A. No. 1240/2009 New Delhi, this the 18th day of January, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Ram Phal Giri S/o Late Shri Hari Giri Aged about 60+ Retired as Confidential Assistant R/o C/o Shri Virender Giri, Quarter No.301, Type-III, Sadiq Nagar, New Delhi. Applicant By Advocate: Shri K.K. Patel. Versus 1. Union of India Through The General Manager, Northern Railway, Head Quarter Office, Baroda House, New Delhi. 2. Sr. Engineer (Construction) Northern Railway, Moradabad. Respondents By Advocate: Shri Rajinder Khatter. O R D E R(ORAL) By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged the pay fixation sheet in view of Railway Boards instructions dated 17.8.1998 and 22.10.2009 and has sought a direction to the respondents to pay him the recovered amount of Rs.1,45,066/- from the retiral benefits of applicant along with interest and refix his pension on the basis of last pay drawn and grant him arrears of pension also along with interest till the date of payment.
2. It is submitted by the applicant he was initially appointed as Typist on 1.5.1981 and was posted in Construction Organisation. He was promoted as Sr. Typist in Construction on ad hoc basis and further promoted as Stenographer in the grade of Rs.425-700 on 17.7.1984 in construction. He was regularized as Sr. Typist and Stenographer in the parent cadre Head Quarter vide letter dated 30.4.1987 w.e.f. 2.4.1987 and 23.2.1988 respectively.
3. He was posted as Confidential Assistant in his parent cadre w.e.f. 20.3.1995 but continued in Construction Organisation where he was given the scale of Rs.1640-2900 w.e.f. 19.10.1995.
4. He was given a show cause notice on 6.7.2007 to the effect that while the applicant was working as Confidential Assistant ( ad hoc) he was promoted on ad hoc basis in ex-cadre post of Construction Organisation and his pay on promotion was erroneously fixed with reference to applicants ex-cadre pay in the lower grade whereas it should have been fixed with reference to applicants cadre pay Rs.7425/-, as per PS 9824, i.e., Railway Boards instructions dated 17.8.1998. Along with the show cause notice, the applicant was also issued a fixation sheet refixing his pay and recovery of Rs.1,45,066/- was effected from his retiral benefits.
5. It is in these circumstances applicant has filed the present OA on the ground that he retired on 31.1.2009 while working as that he retired on 31.1.1009 while working as Confidential Assistant in the grade of Rs.9300-34800 (Grade pay Rs.4200) and last pay drawn by him was Rs.17810/-. It has already been held that if ad hoc promotion is given in Construction, pay should be protected. Moreover, pay was given by the respondents without any misrepresentation on his part, therefore, there is no justification to recover the excess amount already paid to him.
6. He placed reliance on the judgment of the Honble Supreme Court in Gabrial Saver Fernandaes and Others Vs. State of Karnakata reported in 1995 (1) SCSLJ 24.
7. It is also submitted by the learned counsel for the applicant that issue raised in this case has already been decided by the Tribunal in judgment dated 26.7.2005 (page 22) passed in OA No.2786/2003 which has been upheld by the Honble High Court of Delhi on 11.7.2008 (page 31) followed in OA No.2698/2008 decided on 2.12.2010, therefore, this OA being covered by above judgments may be allowed.
8. Respondents on the other hand have stated applicant was appointed as Typist in grade Rs.260-400 on pay Rs.260/- per month on 1.5.1981 against handicapped quota and his lien was fixed with the typist of Head Quarters office/Baroda House, New Delhi. He was promoted to officiate as Sr. Typist Grade Rs.330-560 locally on ad hoc basis with effect from 19.10.1983 vide notice No.220-E/2-3/Construction/Pt.V dated 19.10.1983. Thereafter, he was spared and directed to report to Dy.CE/C/Ambala for posting as Steno in Grade Rs.425-700 (RS) on 21.7.1984 vide CE/C/NOTICE No.220-E/2-3/Const/Pt.VI dated 17.7.1984. He was further promoted as Stenographer Grade Rs.1640-2900/- (RPS) purely on ad hoc basis and local arrangements in Construction Organisation vide CAO/Const/K.Gate, Delhi vide letter No.752-E/2/P-08/Const/Pt.II dated 10.1995 with clear direction that he will not claim his seniority over his seniors.
9. In the meanwhile a letter No.840-E/O/Const dated 5.6.2007 was received from the office of CAO/C/K. Gate Delhi mentioning that the correct pay must be charged, i.e., 1.6.2007, if already not charged in the case of fixation of pay from Ex. Cadre to Cadre. Accordingly, show cause notice was issued to the applicant on 6.7.2007 but he endorsed pay fixation is incomplete and did not file any reply. Accordingly, his pay was fixed as per revised fixation chart and over payment was recovered from his DCRG. As per Rule 1019 of Indian Railway Establishment Manual Volume-I, policy was framed by the Railway Board as such respondents could recover the overpayments form the retiral dues/settlement dues of the employees. They have thus prayed OA may be dismissed.
10. We have heard both the counsel and perused the pleadings also. It is not disputed by the respondents that number of OAs on this issue have been allowed and the Dy.CPO/Construction has, in fact, written a letter to the General Manager on 22.10.2009 for waival of recovery which reads as under:-
Sub: Waival of recovery of excess payments from the Staff of Const. Organization on account of fixation of pay from one cadre post to another cadre post.
Ref: Your letter No.752E/190/Const./EIIIA dated 12.9.2008. S.No.138.
In reference to your above cited letter, the verbatim comments of the finance in favour of recovery of 88 employees (verified copy enclosed) are as under:-
1. The over payments made to 88 employees on account of rectification of pay fixation erroneously made works out to Rs.33,65,358/- and the same has been verified by accounts.
2. It is noted that where a few employees approached CAT, challenging recovery of overpayments, such cases have been decided in favour of the employees. Further, in the case of Shri Madan Lal (retired section engineer) the High Court, CDG while upholding the Tribunals orders, observed as under:-
The Tribunal had relied on a number of judgments of the Apex Court, holding that where any excess payment is made to an employee on account of the revision of his pay without any fault being attributed to him then the excess payment cannot be recovered, though the revised pay may discontinue from the date when the error is detected. This is precisely what the Tribunal has ordered relying on those judgments. We, therefore, find no good ground to interfere with the impugned order.
Therefore, filing of SLP in the Supreme Court was not agreed to by the Railway Board and accordingly over payments recovered have been refunded.
3. It is not argued that having refunded such recoveries in respect of those employees who had obtained favourable judgments from the courts, it may be difficult to sustain recovery of overpayments in other cases. Hence, this proposal for waiver of overpayments, if agreed to in the interest of equity and fair play, would tantamount to treating the erroneous fixation of pay as an administrative error. Board may like to consider accordingly.
This has the approval of FA&CAO/C. In view of the above, Board may be requested to waive of the recovery accordingly.
DA: As above.
Sd/-
Dy.CPO/Cont.
11. Apart from it perusal of judgment dated 11.7.2008 given by Honble High Court of Delhi in the case of U.O.I. & Others Vs. Girwar Singh (WP Nos. 1256-1258 of 2006) shows that the respondent therein was also promoted on ad hoc basis as skilled mason. Before that he was working as a mason which was an ex-cadre post. On the verge of his retirement, show cause notice was given that his pay was wrongly fixed in the pay scale of Rs.1200-1800. It should have been fixed with reference to the pay scale drawn by him in the cadre post. His pay was refixed and recovery ordered. Being aggrieved, the respondent had filed OA which was allowed. The Railways had challenged the order of Tribunal in the Honble High Court of Delhi.
12. Honble High Court noted that the parent cadre of the petitioner was New Delhi division, he was made to work in the Construction Organization for most of his service period. In the Construction Organization, he was also given an ad hoc promotion as highly skilled Manson in the grade of Rs.1200-1800 way back in 14.6.1988. This pay scale was revised with effect from 1.1.1996 whereby his pay was fixed in the replacing pay scale of Rs.4000-6000. Thus, the respondent continued to enjoy the pay in the said pay scale right from the date of his promotion in the year 1988 till his retirement on 31.8.2003. No doubt, sometime before his retirement he was issued a show-cause notice, but no orders were passed thereupon till his retirement. In any case, even the said show-cause notice was issued more than 14 years after fixation of his pay. It was thus held it cannot be said to be a mistaken case. Since the respondent was working in the Construction Organization throughout, he was given promotion there in the higher pay scale and his promotion was also not withdrawn at any point of time. Even presuming it to be a case of mistake, it cannot be said that such a mistake is attributable to the respondent. Therefore, in the light of the decision of the Apex Court in Shyam Babu Verma v. Union of India, 1994 (27) ATC (SC) 121 and Sahib Ram v. State of Haryana, 1995 SCC (L&S) 248, the Tribunal rightly concluded that the petitioner could not make any recovery in respect of the alleged excess salary paid to him, that too after his retirement and from his retiral benefits.
The petitioners had themselves issued a circular in the year 1998 as per which the Construction Organization and project are reckoned as extension of the cadre of the post in the Railway/Division. If that is the position clarified by the petitioners themselves, how could a different yardstick be applied for the purpose of fixation of pay is the moot question. The answer for this has to be against the petitioner. We may also note that the Tribunal relied upon the judgment of the Supreme Court in Badri Prashad v. Union of India, 2005 (4) Scale 725, wherein the Supreme Court held that in case of ad hoc promotion in Construction Organization, pay of the concerned employee has to be protected in Group C with all benefits of pay protection, counting of service towards higher post, etc..
13. Similarly OA No. 2698/2008 was also allowed relying on above judgment by giving following direction:-
In view of above discussion, the OA is allowed. Respondents are directed to refund the amount which has been recovered from the DCRG of the applicant, issue revised PPO on the basis of last pay drawn by the applicant. However, we are not inclined to grant any interest to the applicant in these circumstances.
14. The case in hand is fully covered by the above said judgments. Here also applicant was given ad hoc promotion in Construction. He continued to work as Confidential Assistant till his date of retirement. The promotion was never withdrawn, therefore, his pay has to be protected. Therefore, this OA is also allowed. Annexure A-I is quashed and set aside. Respondents are directed to refund the amount which has been recovered from the DCRG of the applicant and issue revised PPO on the basis of last pay drawn by the applicant.
15. We are not inclined to grant any interest in this case.
16. With above directions, OA stands allowed. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh