Central Administrative Tribunal - Chandigarh
Ramesh Chander vs M/O Railways on 15 April, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.No.060/01387/2018
Order pronounced on: April 15, 2021
(Order reserved on: 30.03.2021)
CORAM: HON'BLE MRS. AJANTA DAYALAN, MEMBER (A)
Ramesh Chander S/o Sh. Rood Chand, age 63 years R/o Gali
Meenakshi Clinic Wali, near Chanan Chakki, Chatergarh Patti,
Sirsa, Pin Code : 125055 (Category-D).
Applicant
(BY ADVOCATE: MR. J.S.THIND)
Versus
1. The General Manager,
Northern Railway,
Baroda House,
New Delhi,
PinCode-110001.
2. The Divisional Regional Manager,
Ambala Division,
Northern Railways,
Ambala. Pin Code : 133001.
(BY ADVOCATE: MR. YOGESH PUTNEY)
.. Respondents
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ORDER
HON'BLE MRS.AJANTA DAYALAN, MEMBER(A)
1. The present OA has been filed by the applicant Ramesh Chander seeking quashing of the recovery order dated 16.10.2015 (Annexure A-2). He has also sought direction to be issued to the respondent department to make correction in his Pension Payment Order to the effect of showing his last pay as Rs.14,820/- as against Rs.11,840/- now being shown. Further it is prayed to pay the difference of pension to him along with market rate of interest.
2. In the O.A. the applicant Ramesh Chander has stated that he was appointed as Painter in the respondent department on 15.11.1981. The applicant was screened as trackman on 31.12.1984 but he was kept on the post of painter and discharged his duties as such. In 2006, a decision was taken to regularize the services of the painters working in the respondent department. In pursuance thereof, the applicant was trade tested in 2006 and ultimately his services were regularized as painter w.e.f. 29.1.2008. After rendering more than 23 years of service as painter, the applicant retired on 31.8.2015.
3. The applicant further pleads that on 16.10.2015, the recovery order (Annexure A-2) was passed ordering recovery of Rs.7,57,927/- from him. The applicant was actually drawing salary of Rs.14,820/- prior to his retirement. However, this salary was reduced to Rs.11,840/- as per the last pay of the applicant shown in the Pension Payment Order. The applicant made several 3 requests in this regard (Annexure A-3). However, the pension of the applicant has been determined based on his reduced salary.
4. The applicant has pleaded that he was appointed and was discharging the duties and responsibilities as painter which is a Group „C‟ post but his retiral dues have been given as per Group „D‟ post. He has relied upon judgement of Hon‟ble Apex Court in the case of STATE OF PUNJAB VS. RAFIQ MASIH, 2015 (1) RSJ 177 and has contended that in view of law laid down therein, no recovery is permissible from the applicant, in view of the facts and circumstances of the case. He has also stated that his case is squarely covered by this judgement.
5. The respondents have contested the claim of the applicant.
They have stated that the applicant has impugned order dated 16.10.2015 (Annexure A-2) ordering recovery amounting to Rs.7,57,927/-. However, the breakup of the recovery mentioned in Annexure A-2 is as follows :-
i) Final Electricity Bill Rs.2,974/-
ii) Overpayment of Rs.7,14,532/-
wages
iii) LPA (23) Rs.19,334/-
iv) HAP (22) Rs.9,247/-
v) RELHS Rs.11,840/-
Total Rs.7,57,927/-
6. The respondents have pleaded that the recovery of final electricity bill, leave against pay for 23 days, leave against half pay for 22 days and RELHS are in any case to be paid 4 by him. It is only the component of over payment of wages amounting to Rs.7,14,532/- that can be disputed by the applicant.
7. The respondents have further stated that pay of the applicant was fixed wrongly and payment was made erroneously to him. He does not have any right - much less any vested right - to claim refund in view of the law laid down by Hon‟ble Apex Court in U.T. Chandigarh & Ors. Vs. Gurcharan Singh & Anr.
8. The respondents have also stated that the applicant has not pleaded any hardship and as such the O.A. deserves to be dismissed.
9. Besides, the respondents have stated that it is well settled that a factual mistake can always be rectified as held in the cases of Jagdish Prajapat Vs. The State of Rajasthan and others, 1998(2) ATJ 286. It has been held in Anand Prakash vs. State of Punjab, 2005 (4) RSJ 749 and Raj Kumar Batra vs. State of Haryana, 1992 (1) SCT 129, that as and when a mistake is detected, the authority is within its right to rectify the mistake. In Chandigarh Administration vs. Narang Singh, JT 1997(3) SC 536, it has been held that a mistake can be corrected at any time. The respondents have contended that the applicant is trying to mislead this Hon‟ble Tribunal with false pleas. Thus, the instant Original Application deserves dismissal and may be dismissed with costs.
10. Also, the respondents have relied upon Rule 15 of Railway Services (Pension) Rules, 1993 under which it is admissible 5 for the Railways to make recovery of government or railway dues from the retirement gratuity or death gratuity or terminal gratuity without obtaining consent of retiree.
11. The learned counsel for the respondents argued that undisputedly the applicant drew excess salary of Rs.7,14,532/- to which the applicant was not entitled and as such corrective measures were taken by the respondents for withdrawing the same. He also stated that the recovery of over payment cannot be waived in any circumstances and in the present case the rules permit the respondent to make the recovery and that too without consent of the applicant. Hence, he concluded that the department is fully within its right to make the recovery.
12. The learned counsel for the respondents also argued that the applicant has not challenged the PPO dated 31.8.2015 and as such, no relief can be granted to him without quashing the same.
13. The respondents have also submitted that impugned order is dated 16.10.2015 (Annexure A-2) whereas O.A. has been filed on 16.11.2018 only. As such, it is hopelessly barred by limitation in view of provisions of Section 21 of the Administrative Tribunals Act, 1985.
14. In view of all above, the respondents have concluded that the applicant is not entitled to any relief and the O.A. deserves to be dismissed on merits.
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15. I have heard the counsel of opposing sides and have also gone through the pleadings. I have also given thoughtful consideration to the entire matter.
16. The issue in this O.A. is rather limited. The applicant has challenged the recovery order dated 16.10.2015 (Annexure A-2) passed by the respondents. I find that this order details the recovery amount due from the applicant. The total amount exhibited here is Rs.7,57,927/-. Of this, there are other dues namely electricity bill, leave against pay of 23 days, leave against half pay of 22 days and RELHS. These amounts are clearly payable by the applicant and are not related to wrong fixation of pay. The only amount that relates to pay fixation is over payment of wages amounting to Rs.7,14,532/-. This fact has been brought out by the respondents in the written statement and has not been challenged by the applicant by filing rejoinder or otherwise. Thus, the disputed amount in question is infact Rs.7,14,532/- only.
17. It is also observed that the over payment is on account of wrong fixation of pay of the applicant. The respondents in the written statement have categorically stated that the applicant was initially engaged in 1981 as casual labour / painter. He was thereafter screened in 1999 and was found fit to work as Works Khalasi in the pay scale of Rs.196-
232. He was finally promoted as painter in 2008. However, at the time of his settlement of payment, it was noticed that the applicant was erroneously shown as engaged in the grade of Rs.260-400 as casual labour in 1981. Thus, there was a wrong fixation of pay right in 7 1981 in the pay scale of Rs.260-400, which was a Group „C‟ grade, though the same should have been fixed in the initial grade of Rs.196-232. This wrong fixation of pay led to over payment right from that time onwards and resulted into total excess payment of over Rs.7 lacs.
18. I observe that the respondents have heavily relied upon Rule 15 of Railway Services (Pension) Rules 1993. The same being relevant is reproduced as under :-
"15. Recovery and adjustment of Government or railway dues from pensionary benefits-
(1) It shall be the duty of the Head of Office to ascertain and assess Government or railway dues payable by a railway servant due for retirement.
(2) The railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, shall be adjusted against the amount of the retirement gratuity or death gratuity or terminal gratuity and recovery of the dues against the retiring railway servant shall be regulated in accordance with the provisions of sub-rule (4).
(3) For the purposes of this rule, the expression "railway or Government dues" includes-
(a) dues pertaining to railway or Government accommodation including arrears of license fee, as well as damages (for the occupation of the Railway or Government accommodation beyond the permissible period after the date of retirement of allottee) if any;
(b) dues other than those pertaining to railway or Government accommodation, namely balance of house-building or conveyance or any other advance, overpayment of pay and allowances, leave salary or other dues such as Post Office or Life Insurance premia, losses (including short collection in freight charges shortage in stores) caused to the Government or the railway as a result if negligence or fraud on the part of the railway servant while he was in service.
(4)(i) A claim against the railway servant may be on account of all or any of the following :-
(a) losses (including short collection in freight charges, shortage in stores) caused to the Government or the railway as a result of negligence or fraud on the part of the railway servant while he was in service;
(b) other Government dues such as over-payment on account of pay and allowances or other dues such as house rent, Post Office or Life Insurance Premia, or outstanding advance,
(c) non-Government dues.8
(ii) Recovery of losses specified in sub-clause (a) of clause
(i) of this sub-rule shall be made subject to the conditions laid down in rule 8 being satisfied from recurring pensions and also commuted value thereof, which are governed by the Pension Act, 1871 (23 of 1871). A recovery on account of item (a) of sub-para
(i) which cannot be made in terms of rule 8, and any recovery on account of sub-clauses items (b) and (c) of clause (i) that cannot be made from these even with the consent of the railway servant, the same shall be recovered from retirement, death, terminal or service gratuity which are not subject to the Pensions Act, 1871 (23 of 1871). It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the member of his family in the case of a deceased railway servant.
(iii) Sanction to pensionary benefits shall not be delayed pending recovery of any outstanding Government dues.
If at the time of sanction, any dues remain unassessed or unrealised the following courses should be adopted:
(a) In respect of the dues as mentioned in sub-clause
(a) of clause (i) of this sub-rule. A suitable cash deposit may be taken from the railway servant or only such portion of the gratuity as may be considered sufficient, may be held over till the outstanding dues are assessed and adjusted.
(b) In respect if the dues as mentioned in sub-clause
(b) of clause (i) of this sub-rule-
(1) The retiring railway servant may be asked to furnish a surety of a suitable permanent railway servant. If the surety furnished by him is found acceptable, the payment of his pension or gratuity or his last claim for pay, etc. should not be withheld and the surety shall sign a bond in Form
2.
(2) If the retiring railway servant is unable or nor willing to furnish a surety, then action shall be taken as specified in sub-clause (a) of sub-clause
(iii).
(3) The authority-sanctioning pension in each case shall be competent to accept the surety bond in Form 2 on behalf of the President.
(c) In respect of the dues as mentioned in sub-clause (c) of clause (i) The Quasi- Government and non- Government dues, such as amounts payable by a railway servant to Consumer Cooperative Societies, Consumer Credit Societies or the dues payable to an autonomous organisation by a railway servant while on deputation may be recovered from the retirement gratuity which has become payable to the retiring railway servant provided he gives his consent for doing so in writing to the administration.
(iv) In all cases referred to in sub-clauses (a) and (b) of clause (I) of this sub-rule, the amounts which the retiring railway servants are required to deposit or those which are withheld from the gratuity payable to them shall not be disproportionately large and that such amount are not with held or the sureties furnished are not bound over for unduly long periods. To achieve this the following principles should be observed by all the concerned authorities:-
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(a) The cash deposit to be taken or the amount of gratuity to be withheld should not exceed the estimated amount of the outstanding dues plus twenty-five per centum thereof.
(b) Dues mentioned in clause (I) of this sub-rule should be assessed and adjusted within a period of three months from the date of retirement of the railway servant concerned.
(c) Steps should be taken to see that there is no loss to Government on account of negligence on the part of the officials concerned while intimating and processing of a demand. The officials concerned shall be liable to disciplinary action in not assessing the Government dues in time and the question whether the recovery of the irrecoverable amount shall be waived or the recovery made from the officials held responsible for not assessing the Government dues in time should be considered on merits.
(d) As soon as proceeding of the nature referred to in rule 8 are instituted, the authority which instituted the proceedings should without delay intimate the fact to the Account Officer."
19. It is clear from Rule 15 (2), 15 (4)(i) and 15 (4) (ii) that recovery of over payment on account of pay and allowances or other dues can be made from the railway servant out of his retiral dues. It is explicitly mentioned that such recovery can be made from gratuity without even obtaining the consent of the retiree or else, surety or cash deposit may be taken from the retiree. In view of cited clear provision of the Rules, I do not find any illegality in the action of the respondents in making recovery of the over payment from the retiral dues of the applicant. In any case, the applicant has nowhere claimed hardship in the O.A. What to talk of elaboration on this issue, I find that there is not a word about this in the O.A.
20. I also find that in Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417, it was held that excess payment of public money belongs neither to the officers who have effected over payment nor to the recipient. Payment made and received without authority of law can always be recovered. The law implies an obligation on the 10 payee to repay the money otherwise it would amount to unjust enrichment.
21. In view of all the above, the case of the applicant is not covered under the ratio of Hon‟ble Supreme Court judgement in the case of Rafiq Masih (supra) as there is intelligible differentia between the facts of the instant case and the Rafiq Masih (supra).
22. Besides, I also find that though the applicant has challenged the recovery order at Annexure A-2, he has nowhere challenged Pension Payment Order re-fixing the pay and consequential pension. Without challenge to PPO, no relief can be granted to the applicant. Hence the O.A. deserves to be dismissed on this ground as well.
23. Further, I find that there is delay in filing of the O.A. The order being challenged in the O.A. is dated 16.10.2015 (Annexure A-2). The O.A. has been filed with Diary No.3494 on 16.11.2018 - that is after more than 3 years of the passing of the impugned order. However, there is no M.A. for condonation of delay. Thus, no reasons have been explained for delayed filing of the O.A. As per Section 21 of the Administrative Tribunals Act, 1985, no O.A. can be admitted if it is not filed within the time line given therein unless sufficient cause is shown for each days delay. In the instant case - what to talk of each day‟s delay - no explanation, whatsoever, is there for about 3 years delay in filing of the O.A. Thus, the O.A. needs to be dismissed on the ground of limitation as well. However, in the interest of justice, I have considered the case on merits as well. 11
24. In view of all above, I find no justification in the claim of the applicant.
25. The OA is barred by limitation and also devoid of merits and is dismissed.
26. There shall be no order as to costs.
(AJANTA DAYALAN) MEMBER (A) Place: Chandigarh Dated: April 15, 2021.
HC*