Central Administrative Tribunal - Chandigarh
Avtar Singh vs M/O Railways on 3 May, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.No.060/00932/2019
Order pronounced on:03.05.2021
(Order reserved on: 15.04.2021)
CORAM: HON'BLE MRS. AJANTA DAYALAN, MEMBER (A)
Avtar Singh,
aged 62 years
S/o Sh. Harbans Singh
R/o Mubarak Pur, Near Ghaghar Railway Station,
Teh. Derabassi,
Distt. Mohali (Punjab)-Pin-140507, Group C.
Applicant
(BY: MR. KARNAIL SINGH)
Versus
1. Union of India through General Manager, Northern Railway,
Baroda House, New Delhi-110001.
2. Divisional Railway Manager, Northern Railway, Firozpur-
152001.
3. Senior DPO Northern Railway Firozpur-152001.
(BY ADVOCATE: MR. ROHIT SHARMA)
.. Respondents
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ORDER
HON'BLE MRS.AJANTA DAYALAN, MEMBER(A)
1. The present OA has been filed by the applicant Avtar Singh seeking quashing of the order dated 18.3.2019 (Annexure A-1) vide which recovery of Rs.83,085/- has been made from his retiral dues towards over payment of pay. The applicant has also sought interest @12% per annum on delayed payment of balance amount of gratuity of Rs.4,14,739/- as well as on the recovery of Rs.83,085/- made from him till the date of actual payment. The applicant has also prayed for grant of litigation costs of Rs.20,000/-.
2. The facts of the case are largely undisputed. The applicant retired from service of the respondent department on 31.1.2017 as Senior Commercial Clerk. He was supplied a copy of details of terminal benefits payable to him vide reference dated 26.10.2017 wherein gratuity payable to him was shown as Rs.5,81,724/-. However, he has been paid gratuity of Rs.4,14,739/- only. Vide order dated 18.3.2019 (Annexure A-1), the respondents have made the following recovery from gratuity of the applicant :-
(i) RELHS = Rs.33,900/-
(ii) Overpayment of pay = Rs.83,085/-
(iii) Commercial Debit heldup = Rs.50,000/-
Of this, commercial debit of Rs.50,000/- was also released to him on 23.11.2017. Contribution for Railway Employees Liberalized Health Scheme was obviously due from him. As such, only deduction disputed by the applicant is of 3 Rs.83,085/- which has been deducted due to stated overpayment of pay. Balance amount of Rs.4,14,739/- has been paid to him on 5.10.2017.
3. The applicant made a representation dated 20.11.2017 regarding the recovery made from him. This was followed by reminder dated 12.4.2018 as well as legal notice. Finally he filed O.A.No.060/00073/2019 which was disposed of vide order dated 30.1.2019 (Annexure A-4) directing the respondents to decide legal notice dated 12.4.2018 in accordance with law by passing a reasoned and speaking order. It is in pursuance of this order dated 30.1.2019 (Annexure A-4) of the Tribunal that the impugned order dated 18.3.2019 (Annexure A-1) has been passed by the respondents, which has now been challenged by the applicant through the present O.A.
4. These are facts of the case and are not disputed.
5. According to the applicant, he is entitled for interest on delayed payment of gratuity. He has also claimed refund of recovered amount of Rs.83,085/- as well as interest on this recovered amount.
6. The case of the applicant is that the deduction has been made from his retiral dues despite the fact that no such recovery was shown in details of the terminal benefits payable to him in the reference dated 26.10.2017 (Annexure A-2). Further, the recovery is without issuing any show cause notice to him. Also, he has stated that the order dated 18.3.2019 (Annexure A-1) is a non-speaking order.
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7. Besides, the applicant has relied upon number of judgements namely Baljit Singh Vs. State of Haryana, 1998(1) RSJ 650 (P&H), Gurdas Singh Vs. FCI, 2012 (4) RSJ, 608 (P&H), Bansi Lal Vs. State of Punjab, 2014(1) RSJ, 608 (P&H), Parvati Devi Vs Punjab National Bank, 2015 (3) RSJ, 48 Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department & Others, 2014 (3) SLJ
62.
8. Besides, he has relied upon judgement of the Hon'ble Apex Court in the case of State of Punjab Vs. Rafiq Masih, 2015 (1) RSJ, 177.
9. Also, the applicant has relied upon the case of Haryana General Power Corporation and Others Vs. Harkesh Chand & Others, Civil Appeal No.100 of 2013 (Arising out of SLP No.29987/2010).
10. The applicant has also relied upon Rule 87 of the Railway Servants (Pension) Rules, 1993 whereby according to him he is entitled for interest on delayed payment of gratuity.
11. In view of all above the applicant has contended that he is entitled for the relief sought in the O.A.
12. The respondents have contested the claim of the applicant.
They have stated that Rule 15 of the Railway Servants (Pension) Rules, 1993 is quite clear and empowers the respondent department to make recovery and adjust government dues such as over-payment of pay and allowances and other dues as well. They have also stated that this can be done even without consent of the applicant 5 and as such, the action of the respondents in making recovery cannot be held as illegal.
13. The respondents have further stated that the applicant was imposed as many as 52 punishments. Most of these were waived. Else, the applicant would not have got anything by way of gratuity. Certain punishments had to be implemented which was done and in that process over payment of salary was recovered from the gratuity of the applicant. The respondents have given a list of all the punishments awarded to him by way of Annexure R-1. They have also given a list of punishments which were not effected due to retirement of the applicant on 31.1.2017 in the same Annexure R-1. For effecting these punishments, the pay of the applicant had to be revised vide letter dated 18.8.2017 (Annexure R-1). Due to that reason, his pay was reduced from Rs.34,900/- to Rs.33,900/- as on 18.8.2017 resulting into recovery of Rs.83,085/- which was made from his gratuity.
14. The respondents have further contended that in terms of this Tribunal's order in O.A.No.060/00471/2017 titled Tikka Ram Vs. UOI etc. decided on 1.8.2018, such recovery as made in the case of the applicant is permissible. They have, therefore, argued that the matter already stands settled by this Tribunal.
15. Besides above, the respondents have also stated that a factual mistake can be rectified as held in the case of Jagdish Prajapat Vs. The State of Rajasthan & Others, 1998(2) ATJ, P-286. They have also stated that in 6 the case of Anand Prakash Vs. State of Punjab, 2005 (4) RSJ, 749 and Raj Kumar Batra Vs. State of Haryana, 1992(1) SCT 129, it was held that if a mistake is detected, the employer is within his right to rectify the same. Also, in the case of Chandigarh Administration Vs. Narang Singh, JT 1997(3) SC, P-536, it has been held that a mistake can be corrected at any time. In similar circumstances, the Hon'ble Apex Court in the case of G. Srinivas Vs. Government of A.P. & Others, (2005) 13 SCC 712, has held that any order passed by mistake or in ignorance of relevant fact can be reviewed by the authority concerned.
16. Besides above, Hon'ble apex Court has also held in Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand & Another, C.A.No. 5899 of 2012, that the excess payment of public money which is often described as "tax payers money" belongs neither to the officers who have effected overpayment nor that of the recipient. It has been finally concluded by the Apex Court that any amount paid or received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. Law implies an obligation on the payee to repay the money otherwise it would amount to unjust enrichment.
17. In view of the above, the respondents have contended that the case of the applicant is not covered under the judgement of Rafiq Masih (supra). The case of the applicant is not covered by any of the three circumstances quoted by the applicant.
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18. In view of the above, the respondents have concluded that the applicant is not entitled for any benefit and the recovery has been made rightfully from him.
19. I have heard the learned counsel for the opposing sides and have gone through the pleadings of the case. I have also given thoughtful consideration to the entire matter.
20. First of all, I note that the facts of the case are undisputed.
The applicant retired in January 2017 as Senior Commercial Clerk from the respondent department. Of the total amount of Rs.5,81,724/- of gratuity due to him, recovery of Rs.83,085/- made by the respondents towards over payment of salary is disputed by the applicant. Besides, the applicant has claimed for interest on delayed payment of gratuity.
21. I observe that the respondents have heavily relied upon Rule 15 of Railway Services (Pension) Rules 1993. The same being relevant is reproduced here :-
"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, 8 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. (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.
(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 9 long periods. To achieve this the following principles should be observed by all the concerned authorities:-
(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."
22. It is clear from aforesaid Rule particularly 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 provisions of the Rule, I do not find any illegality in the action of the respondents in making recovery of the over payment from the gratuity of the applicant.
23. Further, I note that as stated by the respondents, the applicant had been imposed punishment for as many as 52 times during his whole service. The respondents have given a list of the same at Annexure R-1. I find from this list that punishments spread right from 1991 onwards till 2013. I also find from Annexure R-1 that on six occasions right from 2001 to 2013, the applicant was imposed penalty of reduction by one stage or two stages. Besides, 10 once in 2004, penalty of removal from service was imposed upon him. This punishment was later reduced to reduction in minimum pay in the time scale for 3 years with cumulative effect vide order dated 11.10.2004. The respondents have also given a list of 13 punishments where increments were stopped which were not imposed in his case due to his retirement in January 2017. Again, this spreads right from 2000 to 2013. As such, it is clear from the record of the applicant that his service was far from being unblemished. He was repeatedly imposed punishments. But, despite that he failed to show required improvement. The categorical statement of the respondents that applicant's "performance in service was not satisfactory" is well proved. In fact, I may say that it is a huge under-statement.
24. It is also important to note that as per pleadings in the O.A, these punishments are not under challenge. Also, some of these punishments were with cumulative effect.
25. Further, I find that despite such poor service record of the applicant, the respondents have still acted very liberally and have decided not to effect 13 punishments imposed upon him in view of his impending retirement. This order has been issued on 18.8.2017 (Annexure R-1).
26. It is clear from the above order that number of disciplinary cases had been initiated against him and penalties were imposed. The respondents, rather than effecting all these punishments, chose to waive of 13 of those punishments - each of which involved withholding of increments from 6 11 months to 3 years. Consequent to these waivers, the applicant got substantial benefits. However, now I observe that rather than being grateful to the respondents for sympathetic and considerate view taken by them in his case, he is only finding fault with the effect of imposition of only limited number of punishments against him which resulted in only minor recovery of Rs.83,085/- from his gratuity. If all the punishments had been imposed against the applicant, he would not have got even the balance amount of gratuity that he is in receipt of now.
27. In view of the above, it is clear that the delay in settlement of the retiral dues is on account of applicant's own conduct and behaviour during service. The respondents have considered his case extremely liberally and sympathetically and may be with sympathy that he does not deserve. This consideration took some time for settlement of his dues. However, for this delay, the respondent department is in no way responsible. Rather, it is applicant's own conduct and behaviour during service that is fully responsible for the delay.
28. In view of all above, no case is made out for the relief claimed by the applicant. He is not entitled for interest either on delayed payment of gratuity and or for refund of recovered amount from him.
29. In view of the specific facts of the case, where the applicant was imposed punishment as many as 52 times during his service, it is clear that the case is not covered by the exceptions carved out in the case of Rafiq Masih 12 (supra). In fact, it is a rare case where the applicant has been imposed punishment for as many as 52 times by the respondents during his service career. Still, ultimately, he did retire and was allowed his retiral dues. This is despite the fact that his conduct and behaviour during service was far from satisfactory. Thus, no case, at all, is made out for any further relief to be granted to the applicant on grounds of natural justice or equity with other employees who had rendered satisfactory service.
30. Besides, I also observe that as held by Hon'ble Apex Court in the case of Chandi Prasad Uniyal (supra), that excess payment of public money neither belongs to the officers who have effected over-payment nor to the recipient. Hence, the respondents were well within their power to recover the over-payment by them while giving effect to the punishments imposed by them upon applicant during his service career.
31. In view of all above, I do not find any merit in the case.
The same is dismissed.
32. There shall be no order as to costs.
(AJANTA DAYALAN) MEMBER (A) Place: Chandigarh Dated: 03.05.2021 HC*