Central Administrative Tribunal - Chandigarh
Bhagwan Dass vs M/O Railways on 19 February, 2019
Author: P. Gopinath
Bench: P. Gopinath
1
O.A.060/00163/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Pronounced on : 19.02.2019
Reserved on : 06.02.2019
OA No. 060/00163/2018
MA. No. 060/01239/2018
CORAM: HON'BLE MR.SANJEEV KAUSHIK, MEMBER(J)
HON'BLE MRS. P. GOPINATH, MEMBER(A)
Bhagwan Dass s/o Late Sh. Lekh Raj, Group-C, aged 79 years, R/o
29, Jain Nagar, Ambala Cantt. Ex. Train Examiner under respondent
No. 2.
......................Applicant
BY ADVOCATE: Sh. Karnail Singh
Versus
1. Union of India through General Manager, Northern Railway,
Baroda House, New Delhi.
2. Divisional Railway Manager, DRM Office Complex, Northern
Railway, Ambala Cantt. (Haryana).
3. Financial Advisor & Chief Accounts Officer, Northern Railway,
Baroda House, New Delhi.
..................Respondents
BY ADVOCATE: Sh. L.B. Singh
ORDER
MRS. P. GOPINATH, MEMBER(A):-
Applicant was working as a Train Examiner which post was re-designated as Junior Engineer Grade II in scale of Rs. 1400- 2 O.A.060/00163/2018 2300. Applicant took voluntary retirement on 13.10.1993. Applicant produces Annexure A-3 wherein the post of Junior Engineer Grade II is shown at Sr. No. 5.1(i) with pay scale Rs. 1400-2300 which was revised to Rs. 5000-8000.
2. Applicant submits that vide PPO No. 17930387 dated 30.10.1993, he was granted pension in the pay scale Rs. 1400-2300. On The basis of the Fifth CPC, The applicant was issued a revised PPO showing his pension as Rs. 2500 in scale of pay of Rs. 5000- 8000. Further, as per 6th CPC revised PPO, a pension of Rs. 6750 was granted to the applicant in the pay scale of Rs. 9300-34800 with pay band Rs. 4200. Consequent to 7th CPC, a revised PPO dated 06.12.12017 has been issued which has reduced the pension w.e.f. 01.01.1996 without putting the applicant to notice.
3. Head counsel on both sides and perused written submissions made.
4. Applicant quotes the case of Civil Appeal No. 100 of 2013 titled Haryana General Power Corporation and Ors. Vs. Harkesh Chand & Ors. in support of his contention wherein it was held as under :-
"29. In view of the aforesaid analysis, we conclude and hold that the judgments rendered by the learned single Judge as well as by the Division Bench are unsustainable and are, accordingly, set aside. However, we clarify that if any financial benefit had been availed by the respondents, the same shall not be recovered, but their dates for grant of ACP Scale shall remain as determined by the appellants. Accordingly, the appeal is disposed of. The parties shall bear their respective costs."
He also cited Apex Court judgement in the case of State of Punjab Vs. Rafiq Masih, 2015(1) RSJ 177 wherein it was held as follows:- 3
O.A.060/00163/2018 "12. 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."
5. The prayer of the applicant is for quashing Annexure A-1, PPO issued in pursuance of the 7th CPC and to stop recovery from pension of the applicant.
6. Annexure A-1, PPO issued post 7th CPC shows that the applicant was working in the scale of Rs. 1400-2300 at the time of retirement, a fact which applicant also confirms in the OA. In the 5th CPC, this pay scale was revised to Rs. 4500-7000 and not Rs. 5000- 8000 as shown in the earlier PPO. Subsequently, the 6th and 7th CPCs have been fixed for the purpose of pension based on Rs. 4500- 7000.
7. Vide Annexure R-1, the 6th CPC has issued a concordance table of pre-1996, pre-2006 and post-2006 pay scales/pay bands to facilitate payment of revised pension. In this 4 O.A.060/00163/2018 concordance table, the pre-1996 scale of applicant as admitted by himself in OA was Rs. 1400-2300 and was replaced to Rs. 4500-7000 w.e.f. 01.01.1996. This scale was further revised to Rs. 5200-20,200 with Grade Pay of Rs. 2800 w.e.f 01.01.2006. Whereas the applicant's pension should have been fixed in the scale of Rs. 4500- 7000, it was inadvertently fixed in the scale of Rs. 5000-8000 by the respondents which was one scale above the entitlement of the pensioner. The respondents in support of their contentions, submitted that it is a well-settled law that a factual mistake can be rectified as held in Raj Kumar Batra Vs. State of Haryana, 1992(1) SCT 129 and Chandigarh Administration Vs. Naran Singh, JT 1997(3) SC 536. Such a view was upheld by the Apex Court in G. Srinivas Vs. Government of A.P. & Ors., (2005) 13 SCC 712.
8. Applicant, in support of his contentions, also quotes this Tribunal's order in OA No. 060/00605/2016 decided on 11.04.2018 wherein the applicant's case was that he was recruited as a Khalasi on casual basis and was made to work in the post of Carpenter till his retirement and the respondents had reduced his pay from that of a Carpenter to Khalasi and made recovery from his pensionary benefits. The facts of above case are not comparable with the applicant's case in the present OA where his pension was correctly fixed at the time of retirement, but wrongly fixed at the time of implementing the 5th CPC recommendations. The applicant has no case that work of a higher post was extracted and his pay was fixed in the scale of lower post. There 5 O.A.060/00163/2018 is no dispute in the applicant's case regarding the post or pay scale he held at the time of retirement.
9. Applicant was working at the time of retirement in the pay scale of Rs. 1400-2300 which was given a replacement scale S-8 of Rs. 4500-7000. It appears that while refixing his pension on the basis of 6th CPC, his pay was construed to be S-9 which includes the pay scales of 1400-1600, 2300-2600 and 1600-2660. S-9 was given the replacement scale of Rs. 5000-8000. Since the pay scales telescoped into S-8 scale of Rs. 1400-2300 and the pay scales which were telescoped into S-9 included pay scale of 1400-2660, the confusion in fixing the pension in S-9was made by the respondents. The applicant had retired on 13.10.1993 and the 6th CPC was implemented w.e.f. 01.01.1996. Applicant did not ask for his pension to be fixed in a particular scale. The respondents exercised its powers of pay fixation and consequent pension by fixing it in a higher scale.
10. Annexure -1 is the 7th CPC revised pension payment advice which goes adversely against the applicant. The recovery so ordered would be penalizing the applicant for a mistake committed by the respondents, who should be proceeded against for dereliction of a duty of fixing the applicant's pay scale in a wrong scale and also ordering recovery thereon. The Tribunal vide order dated 09.02.2018 had stayed the recovery. 6
O.A.060/00163/2018
11. Whereas we would not interfere with the pension refixation order issued post 7th CPC, but, as per the directions of the Apex order in Rafiq Masih (supra), we direct that no recovery can be made from the applicant who is a pensioner.
12. Ordered accordingly. OA is disposed of with these directions. There shall be no order as to costs.
(P. GOPINATH) MEMBER (A) (SANJEEV KAUSHIK) MEMBER (J) Dated:
ND*