Central Administrative Tribunal - Allahabad
R K Shivani vs General Manager N C Rly on 26 March, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL, ALL ha (RESERVED on 144 AHABAD 4 ALLAHABAD This is the Jon day of March, 2019 ORIGINAL APPLICATION NO. 330/00831/2017 HON'BLE MR. MOHD. JAMSHED., MEMBER (A). 1. 1. R. K, Shivani, S/o late Shri Ram Ki 349, Nankganj, Sipri Bazar, Jhansi. (presently working as mail guard). shan Shivani, S.K, Agnihotri, S/o late B. P, Agnihotri, 1257/3, New Raiganj, Sipri Bazar, Jhansi. A. K, Saxena, S/o late Shri Pannalal, Jhansi. K. S, Saxena, 84, V. P, Saini, S/o late Shyam Lal Saini, 540, Mali ka Hata Masiha ganj, Sipri Bazar, Jhansi. G.S, Matharu, S/o late Amar Sin gh Matharu, 1369, Opposite Khatibaba Mandir, Isait Ola, Jhansi. N. K, Verma, S/o la te A. P, Verma, 534, Nanakganj, Sipri Bazar, Jhansi. Veid Prakash Tiwari, S/o late Shri Moti Lal, 807, Chamanganj, Sipri Bazar, Jhansi. D.P, Goswami, S/o | ate Shri A. Pp. Goswami, Mali Ka Hata, Masihaganj R. K, Baronia, S/o late BLN. Baronia, 43, Raiganj, Sipri Bazar, Jhansi. . Applicants VERSUS Union of India, through, General] Ma nager, North Central Railway, Allahabad. Advocate for the Applicant OA No. 00831/2017 Divisional Railway Manager, Jhansi, Division North Central Railway, Jhansi. Senior Divisional Personal Officer, North Central Railway, Jhansi. . .Respondents Mr. A. Srivastava Advocate for the Respondents : Mr. P. Mathur ORDER
The present OA has been filed seeking the following reliefs:-
(a) This Hon'ble Tribunal may be pleased to direct the
(b) respondents to not to make any recovery from the retiral dues of the applicant and they may be paid the complete amount or retiral dues without any deduction on their retirement.
This Hon'ble Tribunal may be pleased to direct the respondent to refund the recovered amount of the retiral dues with reference to the applicant who have been retired and the amount has been recovered from their retiral dues, along with admissible interest thereupon.
3OA No, 00831/2017 | The facts of the case as indicated in the OA are as under: -
2. The applicants were initially inducted as Goods Guard in the pay scales of Rs. 4500-7000/-. The promotion of Goods Guard is to Passenger Guard and then to Senior Passenger Guard and finally as Mail Guard.
The pay scales for the posts of Passenger Guard is Rs.
5000-8000/- and for Senior Passenger Guard is Rs. 5500- 9000/-.
3. The Railways implemented MACP scheme in substitution to the ACP scheme providing three financial upgradation on completion of 10, 20, 30 years of regular service from 01.09.2008. All the applicants entered in service as Goods Guard (4500-7000) and they were allowed the first promotion as Passenger Guard (5000- 8000) and the second promotion was given to the applicant to Senior Passenger Guard (5500-9000). The third promotion under the scheme received by the applicant was from Senior Passenger Guard to Mail Guard in the same pay scale of Rs. 5500-9000/-. Furhter, the promotions granted under the ACP Scheme in the post carrying the same grade pay due to merger of pay scales is to be ignored for purpose of granting MACP as per the 4 OA No. 00831/2017 / pallway Service (RP) Rules, 2008. The post of Passenger Guard and Senior passenger Guard which were earlier carrying pay scale of Rs. 5000-8000/- to Rs, 5500-9000/-
have been merged in Pay Band - II with Rs. 9300- 34800/- with Grade Pay of Rs. 4200/-. The post of Mail Guard has also been placed in the same Pay Band with Grade Pay of Rs. 4200/-. The applicant for the first time came to learn a clarification of the Railway Board dated 13.12.2012 stating that financial upgradation under ACP/MACP cannot be higher than what are allowed to an employee on a normal promotion and in such cases financial upgradation under MACP should be granted to the same pay scale.
4. The respondents issued notice for the withdrawal of the MACPs allowed to the applicant in 2010. A detailed representation was preferred by the applicant on 15.03.2013 before the Respondent No. 3. The applicants came to know that their applications have been rejected by the respondents.
5. The applicants were apprehensive that certain recoveries will be made in view of these orders by the respondents. Aggrieved by this action, the applicants filed OA 764/2013 and vide order dated 06.06.2013, the . 5 os OA No. 00831/2017 : " tribunal was pleased to stay the impugned order dated : 13.12.2012. However, during the pendency of the OA, large number of Guards retired from service, despite that the respondents in an arbitrary manner decided to recover the amount from the retiral dues of the applicants and started recovering the same from their retiral dues. A representation was again submitted on 21.03.2016 before Respondent No. 3, indicating that applicants were allowed MACP which was later on withdrawn pursuant to letter dated 13.12.2012. However, the Hon'ble Tribunal had stayed the effect and operation of the order dated 13.12.2012. It has been further submitted that the applicant again preferred a representation before the Respondent No. 3 on 25.07.2016 requesting that there may not be any deduction from retiral dues and that on this account the Hon'ble Supreme Court has held that no recovery can be affected from the retiral dues of Group - 'C' and 'D' staff.
It is also stated that the recovery of the excess payment from the retiral dues, should be stopped.
6. Aggrieved by this action of the respondents this OA has been filed seeking relief in terms of the directions from Hon'ble Tribunal to the respondents to not make OA No. 00831/2617 any recoveries from the retiral dues of the applicant and that the amount so recovered, should be refunded.
7. In the short counter filed by the respondents it is stated that the applicants have also filed OA No. 330/00764 of 2013, which is pending before this Hon'ble Tribunal for disposal and, therefore, the present OA filed by the applicants is not maintainable. It is also stated that for the purpose of determination of word 'Promotion', it is necessary to mention here that Rule 211 of Chapter
-II, Section- B of Railway Establishment Manual-l provides that 'Promotion' includes promotion from a lower grade to a higher grade, from one class to another class, from one group to another group. The post of Passenger Guard is different group from Senior Pasenger Guard and, as such, promotion from Senior Goods Guard to Passenger Guard and from Senior Passenger Guard to Mail/Express Guard is promotion and not merely an _induction from one group to another.
8. Respondents have relied on Apex Court judgment in the case of State of Rajasthan vs. Fateh Chand Soni tf reported in (1996) 1 SCC 562 where in the word 'promote' means 'to advancement to a higher position 7 OA No. 00831/2017 ces 7 seed or honor'. Similar judgments from Tribunal have aiso been quoted.
9, From the Railway Board letter dated 10.06.2009, it is clear that when the benefit of MACP is being granted according to FR-22(1)(a)(i) of railway Establishment Code ~ II, which provides that once benefit of MACP is granted to an employee his pay should be fixed according to provisions of FR-22(1)(a)(ii) of Railway Establishment Code-Il. Assertion of the applicant that after granting promotion from the post of Senior Goods Guard and Senior Passenger Guard higher pay can be given, is wholly incorrect as higher pay cannot be granted in view of these provisions. Thus, the letter issued by Railway Board dated 13.12.2012 is valid in view of the provisions contained in para --- 7 of the letter dated 10.06.2009 issued by Railway Board on this subject. The averments made by the applicants that higher pay can be granted after promotion from Senior Passenger Guard to Passenger Guard and from Senior Passenger Guard to Mail/Express Guard, who have been given benefit of MACP, is not correct and therefore, unsustainable.
10. Respondents have also submitted that according to para 1017 to 1019 of Railway Establishment Manual 8 OA No. 00831/2017 / youre -I, recovery from settlement dues of an y fo employee normally should not be waived and para-1019 provides that in case on account of superannuation, the recovery of over payments should be spread in such a manner that the recoupment in full is made within the period available. In this case, the Railway Administration has not reduced the pay of applicants and only started recovery of excess amount which has been _ paid erroneously to the applicants in pursuance of Railway Board's letter dated 10.06.2009.
11. Learned counsel for the applicants submitted that judgment in OA 330/00331/2015 delivered = = on 15.11.2018 by Allahabad Bench of the Tribunal has clubbed other OAs also including OA NO.
330/00764/2013, OA No.330/00773/2013, OA No.330/00776/2013, OA No, 330/00781/2013, OA No. 330/00785/2013, OA No. 330/00921/2013, OA No 330/01611/2013, OA No.330/01148/2014 OA No. 330/00496/2015. The Subject matter of most of these OAs is also about the Railway Board's Order dated 13.12.2012 and representation of applicants Similar ny placed to get the benefit Of MACP, OA No, 00831/2017 Lone relevant portion of the Tribunal's order in OA No. 331/2015 is as as under:-
"24, The similar issue of admissibility of the oid benefits to the railway Guards, who nave 2 ios promotion in the same pay band and grade Pp der decided by Hon'ble Allahabad High Court nl or dated 19.7.2013 in the case of Union of inc ja hve G.M, E.C.R. and Ors. VS. Central AOE eO1F Tribunals and Ors. in the Writ-A No. 18244/ i. arising out of the order passed by this Tribune ve the OA No, 1241/2011 in the case of Sachidanar Ram and Ors vs. Union of India and Ors. Hon e High Court has noted that by virtue of various judicial pronouncements which have been uP oA by Hon'ble Apex Court, it has been settled tha , movement of Senior Goods Guard to the post O Passenger Guard is not 4 promotion and it is a lateral induction. It is also held as under:-
"Undisputedly, the Senior Goods Guards and Passenger Guards were in the same scale of pay ie. 5000-8000. Vide Board's Letter dated 11.9.2008, two categories of Passenger Guard and Senior Passenger Guard (5500-9000) have been merged and allotted Grade Pay of Rs.2400/-in Pay Band-II (RBE-108/ 2008). Whereas, earlier the post of Senior Passenger Guard was a promotional post for Passenger Guards. So far as the private respondents are concerned, undisputedly, they were initially recruited as Guard and received one financial upgradation i.e. from 2800 to 4200 (earlier grade pay assigned for both Senior Goods Guard/Passenger Guard) when they moved from the entry level of Goods Guard to the next higher post of either Senior Goods Guard or Passenger Guard. There was no further promotion so far as the private respondents are concerned. Since it has already been held by judicial pronouncement that the post of Senior Goods Guard and Passenger Guard have the same grade of pay and movement of a Senior Goods Guard to the post of Passenger Guard, is only a fateral induction and ; ' na not a promotion, ail the private respondents would pb taken to h ; ; e ave got only one financia/ upgradati d as per MACPS on and as per , they were entitled to two more financial upgradations. This is exact! been held by the E y What has y {Me eErnaculum Bench of the Central 10 OA No. 00831/2017 Administrative Tribunal in a batch of original applications, which was relied upon by the Tribunal in the impugned judgement,"
22. In this regard, the Railway Board issued a clarification regarding this issue vide the circular dated 10.2.2011 as discussed in the order dated 11.9.2-18 of this Tribunal in the case of Rikhi Ram and others vs. Union of India and others in OA No. 1253/2013, which has also been cited by the learned counsel for the applicant. The circular dated 10.2.2011 stated as under:-
"Subject: Grant of MACPS benefit to Guards category --clarification regarding (No. PC- V/2010/MACP/7/ECR, dated 10.2.201 1) With reference to the letter above, it is stated that the matter has been examined in consultation with Department of Personnel & Training and it is clarified that every financial upgradation is to be counted as upgradation and offset against the financial upgradation under MACPS in terms of Board's letter dated 10.6.2009. (Bahri's RBO 101/2009, p-127). Therefore, the placement / grant of higher Grade Pay from Goods Guard to Sr. Goods Guard on Non-functional basis should be reckoned as upgradation for the purpose of MACP Scheme.Further, the categories of Passenger Guard (5000-8000) & Sr. Passenger Guard (5500- 9000) have been merged and allotted Grade Pay Rs. 4200/-in PB-2 vide Board's letter dated
11.9.2008 (Bahri's RBO 108/2008, p-122). In terms of para -8 of the Board's letter dt. 10.6.2009 the promotion from Sr. Goods Guard to Passenger Guard should be counted for the purpose of MACPS and in terms of Para -5 of the said letter, the promotion from Passenger Guard to Sr. Passenger Guard should be ignored for MACPS. Therefore, an employee appointed as Goods Guard has earned following three promotions / financial upgradations till he reaches Mail / Express Guard, viz: -
( i ).From Goods Guard to Sr. Goods Guard
(ii).From Sr. Goods Guard to Passenger Guard (lii).From Sr. Passenger Guard to Mai.
ail Guard [Passenger Gu "en Guess ard to Sr. Pa be ignored]." ssenger Guard to
23. It is clear from above the Rai , ailway Boar treated some promotional posts of the Gueras Ve 11 OA No. 00831/2017 "4. passenger Guards and Senior Passenger Guards to 4 be merged with the grade pay of Rs. 4200/-in PB-2, : whereas movement from Senior Goods Guard to Passenger Guard and from Senior Passenger Guard to Mail/Express Guard have been treated as promotion. Movement from Passenger Guard to Senior Passenger Guard has not been treated as promotion on the ground of merging of both the cadres. Then movement from Senior Passenger Guard to Mail/Express Guard has also been treated as a promotion. It is noted that the posts of Senior Goods Guard, Passenger Guard, Senior Passenger Guard and Mail/Express Guard carry the same grade pay of Rs. 4200/-and same pay band i.e. PB-2 with effect from 1.1.2006.
24, As per the judgment dated 19. 7.2013 of Hon'ble Allahabad High Court in Writ-A No. 18244/2013, the movement of Guards from Senior Goods guard to Passenger Guard is 2 lateral induction and it is not a promotion. The said judgment dated 19.7.2013 has been upheld by Hon'ble Apex Court, as the SLP filed against the judgment dated 19.7.2013 was dismissed vide order dated 29.8.2014. Hence, the judgment dated 19,7.2013 is binding on this Tribunal, while deciding these OAs, as the facts in these OAs are similar to the facts in the Writ-A No. 18244/2013. As discussed in para 21, 22 and 23 above, the movement of the Guards from the post of Senior Goods Guard to the post of Passenger Guard is to be treated as lateral induction, whereas it is treated as promotion by the Railway Board vide circular dated 10.2.2011. Hence, in lieu of the lateral movement from the post of Senior Goods Guard to Passenger Guard, which is not treated as a promotion as per the order dated 19.7.2013 of Hon'ble Allahabad High Court, the applicants are entitled for the benefit of one upgradation under MACP. But since at the time of movement from Senior Goods Guards to Passenger Guard, the applicants were allowed the benefit of increment, the same benefit may not be allowed again while considering the MACP benefit.
25, In view of the discussions above, the prayer in the OA to set aside the Railway Board circular dated 13.12.2012 (Annexure A-1) cannot be accepted in view of the judgment dated 27.3.2018 of Hon'ble Supreme Court in the case of Union of India and Ors. vs. Mukti Singha in Civil Appeal No. (s) 3321 of 2018, which is cited by the learned counsel for the fa 12 Z OA No. 00831/2017 f dents. But as held in the judgment dated / (re 2018 of Hon'ble Apex Court, the benefit or MACP already allowed to the applicants shall not pe recovered from the applicants. Further, folowing ae judgment dated 19.7.2013 of Hon'ble Alla pin High Court in the Writ-A No. 1 8244/2013, Me chit of the respondents to consider extending the e Ie who financial upgradation of MACP to the applica? * soil are eligible for the same, in terms of the a an fhe judgment dated 19.7,.2013 and keeping in Vie discussions in para 24 above.
26, All the OAs are partly allowed in terms of ne directions in para 25 above. There wil/ be no or as to costs."
12. The above mentioned order clearly indicate that in terms of the judgment 27.03.2018 of Hon'ble Apex Court, the benefit of MACP already allowed to the applicants, shall not be recovered from the applicants. In_ this connection, the ruling by Apex Court in State of Punjab & Ors vs Rafiq Masih on 18.12.2014, clearly settles the issue of recovery of payments made erroneously to the employees. It has been concluded in the Apex Court Judgment as under:-
"12. It jis 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 entillement. Be that as if may, based on the dec herein above, we may, summarise the following recoveries by the impermissible in {3 Ww:
SS Bis SISTAE Ba HV -
OS No. OSS dL aays é e recovery from employees belonging to / class-I and Class-IV service (or Group 'C' and é Group 'nD! service).
(ii) Recovery from retired employees, OF 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. "
The reference points that have been indicated clearly state that recoveries in such situations from employees belonging to Group 'C' and 'D' would be impermissible in law. Similarly, recovery from retired employees and from those where payments have been made for a period in excess of five years before the order of recovery is issued, shall also be impermissible.
13. In addition to the above mentioned judgment, the Apex Court in Civil Appeal No. 3500/2006 in the matt er of High Court of Punjab & Haryana vs Jagdev Singh on OA No. 0831/2019 4o,07.2016, took into account the Rafiq Mashif ruling as é "10. In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etci. this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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.
(ili) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery /s 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." (emphasis supplied).
Ii The principle enunciated in proposition (ii) above cannot apply to @ situation such as in the present case. In the pre .
f 15 OA No, 00831/2017 é ain view of the above mentioned judgments, it is evident that recoveries cannot be made where payments have been mistakenly made by the employer. The applicants in the present case belong to Group 'C' and, therefore, are covered by ruling in case of Rafiq Masih. However, the Apex Court ruling in the matter of High Court of Punjab & Haryana VS. Jagdev Singh on 29.07.2016 also mentions that the principle enunciated in Rafiq Masih's case cannot apply to a situation where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have made in excess would be required to be refunded. The officer, who has furnished an undertaking, is bound by the undertaking.
15. in view of the above mentioned, it is obvious that in the present OA, the applicants have sought relief from recoveries being made of the amount, erroneously paid to them by the respondents. The Apex Court vide its above quoted judgment of 2016 has confirmed the ve the same time, mentioning that wherever such undertakings have been given by the employees or th ey 16 OA No. 0083172017 ave been clearly placed on notice that any amount 'nave found to have been in excess would be required to be refunded. Therefore, the principles enunciated in Rafiq Masih's case will not be applicable. It is clarified that recoveries from those (Group 'C' and 'D') who have given undertakings in terms of Apex Court judgment in High Court of Punjab & Haryana vs. Jagdev Singh shall be made and from those who have retired but had not given any such undertaking the recoveries shall not be made.
16. In view of the above mentioned, the respondents have to deal with each case in terms of the ruling given by Apex Court in connection with recoveries to be made under various conditions. The OA is dismissed. There shall be no order as to costs.