Central Administrative Tribunal - Lucknow
Amar Singh vs Union Of India on 18 December, 2023
CATLucknow Bench OA No. 332/00170/2020 Amar Singh Vs U.O.I. &Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 170 of 2020
Order dated this 15th day of December, 2023
Hon'ble Justice Mr. Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
1. Amar Singh, aged about 59 years, S/o Sri Ram Ji, R/o- E-9B, Railway
Colony, Northern Railway, Barabanki.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India through the General Manager, Northern Railway, Head
Quarter Office, Baroda House, New Delhi.
2. The Divisional Railway Manager, Northern Railway, Hazratganj,
Lucknow.
3. The Sr. Divisional Personnel Officer, Northern Railway, Hazratganj,
Lucknow.
4. The Sr. Divisional Engineer (Coordination), Northern Railway,
Hazratganj, Lucknow.
5. The Sr. Dvisional Finance Manager,Northern Railway, Hazratganj,
Lucknow.
6. The Assistant Divisional Finance Manager,Northern Railway,
Hazratganj, Lucknow.
.....Respondents
ByAdvocate: Smt. Prayagmati Gupta
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CATLucknow Bench OA No. 332/00170/2020 Amar Singh Vs U.O.I. &Ors
ORDER (ORAL)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative This is a case of re-fixation of pay and recovery wherein the applicant has sought following reliefs:-
(i) To quash the impugned order dated 29.06.2020, contained as Annexure No. A-1 to this OA, with all consequential benefits.
(ii) To direct the respondents not to reduce the pay and imposed any kind of recovery and recovered amount if any, may be refunded along with interest @ 12% p.a. from the date of due till the actual date of payment.
(iii) Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
(iv) Cost of the present case as the applicant has unnecessarily been dragged in litigation.
2.1 The facts of the case are that the applicant, a Group 'C' employee working under the respondents, was granted 1st financial upgradation under the Modified Assured Career Progression (MACP) scheme with grade pay of Rs. 4,600/- with effect from 01.09.2008 by the respondents vide order dated 26.09.2010. The 2nd financial upgradation under MACP with grade pay of Rs. 4,800/- with effect from 01.07.2011 was granted vide order dated 03.01.2012.
2.2 The applicant retired from service on 30.09.2020. A few months before the applicant was to retire, the respondents passed an order dated 29.06.2020 re-fixing the pay of the applicant downwards with retrospective effect. A representation dated 06.07.2020 was made by the applicant to the respondents, but it drew no response. Aggrieved, the applicant preferred this OA and this Tribunal, vide order dated 10.09.2020, directed the respondents not to make any recovery from the applicant on the basis of the order dated 29.06.2020 subject to the final outcome of this OA.
Page 2 of 5 CATLucknow Bench OA No. 332/00170/2020 Amar Singh Vs U.O.I. &Ors 3.1 The applicant's contention has two elements. The first element is the claim that the re-fixation of pay has been done wrongly in that the merger of track supervisors with technical supervisors (Annexure 5 to the OA) has been treated as promotion, belatedly, by the respondents in violation of Railway's Board's letter dated 10.06.2009 (Annexure 8 to the OA).
3.2 The second element is that any recovery arising from such re- fixation of pay is barred in terms of Hon'ble Supreme Court's judgment in State of Punjab & Ors vs Rafiq Masih (whitewasher) (2015) SCC 334 as the applicant is a group 'C' employee and as the order entailing the recovery has been passed near his retirement.
4.1 The respondents, on the other hand, contend that the applicant was granted the benefit of 2nd MACP in the grade pay of Rs. 4,800/- with effect from 26.10.2010 erroneously. They claim that the applicant was promoted as Sr. Section Engineer in the grade pay of Rs. 4,600/- with effect from 29.10.2010 and as such his 2nd MACP has been made effective from 01.09.2018 after the mistake was pointed out by the Accounts department at the time of verification of service records before superannuation of the applicant.
4.2 The pay of the applicant has been revised accordingly vide the impugned order dated 29.06.2020 which has been issued as per rules and does not require to be interfered with. The respondents have released all retirement benefits to the applicant without making any recovery on account of the impugned overpayment, in compliance with the order dated 10.09.2020 of this Tribunal.
5. We have heard both the parties.
6.1 The subject matter of recoveries has been dealt with comprehensively by the Hon'ble Supreme Court in Rafiq Masih (supra). In this case, the Apex Court was considering those cases wherein the Page 3 of 5 CATLucknow Bench OA No. 332/00170/2020 Amar Singh Vs U.O.I. &Ors private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due. Another essential feature in those cases was that the employees were as innocent as their employers, in the wrongful determination of their inflated emoluments - that is - they had not furnished any incorrect information which led to the mistake of making the higher payment, they had not made any misrepresentation, nor they had committed any fraud. The issue for adjudication was whether all the private respondents (employees), against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. The issue was settled by the Apex Court in the following manner:
"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."
(emphasis supplied) 6.2 In the instant case, firstly, it is not in dispute that the applicant is a Group C employee. Secondly, it is noted that the impugned order dated 29.06.2020 was issued within one year of the retirement which was due Page 4 of 5 CATLucknow Bench OA No. 332/00170/2020 Amar Singh Vs U.O.I. &Ors on 30.09.2020. Thirdly, the respondents first granted the benefit of the 1st MACP with effect from 01.09.2008 vide order dated 26.09.2010 and the 2nd MACP with effect from 01.07.2011 vide order dated 03.01.2012 and later issued the impugned order dated 29.06.2020 revising the pay 'due to wrong fixation of pay w.e.f. 01.07.2006 and wrongly granted MACP in GP 4,800/- w.e.f. 26.09.2010, which was due on 01.09.2018.' Thus the recovery is sought to be made for a period in excess of five years. In view of these factors, the recovery from the applicant is not permissible in terms of the criteria laid down in Rafiq Masih (supra). 6.3 Coming to the aspect of re-fixation of pay, we are of the view that the ends of justice will be served if the applicant makes a fresh representation to the respondents for their consideration and disposal by way of a reasoned and speaking order.
7.1 In view of the foregoing, the impugned order dated 29.06.2020 is quashed and set aside and it is directed that the respondents shall not make any recovery from the applicant resulting therefrom. 7.2 The applicant shall make a fresh representation to the respondents on pay fixation within two weeks of receipt of the certified copy of this order and the respondents shall consider and dispose of such representation by way of a reasoned and speaking order within a period of two months from the date of receipt of the representation. 7.3 The OA is disposed of, accordingly. Pending MAs, if any, are also disposed of. The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member(A) Member(J)
warij
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