Central Administrative Tribunal - Hyderabad
Depak Kumar Sahu vs M/O Railways on 25 April, 2019
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH: HYDERABAD Original Application No.021/0680/2018 Reserved on: 22.04.2019 Between: i. Deepak kumar Sahu, S/o Rama Hari Sahu Aged 28 years Qec: Senior Assistant Loco Pilot (Group C} Anand Nagar, Purna, Maharashtra. bo . Mohd. trfan Ansari, _ S/o Mohd. Mumtaz Ali Ansari, "~ Aged 32 years - Cec: Senior Assistant Loco Pilot, Anand Nagar, Purna, Maharashtra, 3, Manish Kumar S/o Jagdeesh Prasad Meena Aged 28 years Occ: Senior Assistant Loco Pilot, Anand Nagar, Purna, Mahsrashtra. 4+. Akash Kumar, S/o Ramvillas Ram, Aged 33 years Oce: Senior Assistant Loco PHot, Anand Nagar, Purna, Maharashtra. 5, Privatam Kumar, S/o Sudesh Kumar Aged 29 years Oce: Senior Assistant Loco Pilot, Anand Nagar, Purna, Maharashtra. ...... Applicants And 1. Union of India represented by THE GENERAL MANAGER South Central Railway, Rail Nilayam até Floor, Secunderabad-500 025. ho he Chief Personnel Officer South Central Railway, Rail Nilayam qi Floor, Seounderabad-500 023. 3. The Sr. Divisional Personnel Officer Nanded Division, South Central Railway Nanded. Respondents whos ee 3S a REY iA AS D.A.No.680/2018 wunsel for the Applicants: Shri K. Siva Reddy. Counsel for the Respondents: Mrs. A. P.Lakshmi, SC for Railways CORAM: Hon'ble Mr. V. Ajay Kumar... Member (Judl. ) ORDER
The applicants, five In number, are working as Senior Assistant Loco Pilots (Group C) under the respondent (South Central Railway}, have filed the OA challenging Annexure A2-Note dated 4.5.2018 wherein orders were issued for recovery of different amounts from the applicants pertaining to the alleged excess payment of Outstation (Relieving) Allowances by running staff. a
2. This Tribunal while issuing notices to the respondents on 17.7.2018, granted interim stay of recovery until further orders. The said stay order is subsisting till date.
3. Heard Shri K. Siva Reddy, the learned counsel for the applicants and Mrs. A.P. Lakshmi, learned Standing Counsel for the respondents and perused the pleadings an record.
ake.
4, Shri K. Siva Reddy, the learned counsel appearing for the applicants submits that the applicants were initially appointed as Assistant Loco Pilots and subsequently promoted as Senior Assistant Loco Pilots and pasted at Purna. He further submitted that while the applicants working as such at Purna, they were drafted to work as PCOR/Crew Booking Lobby, at Nanded on administrative requirement and their services were utilized at Nanded, Le., at a place other than their Headquarters, i¢., Purna, intermittently, between the period October, 2014 to December, 2017 with breaks of 3 months.
5. The learned counsel for the applicants further submitted that for the duties performed by the applicants at Nanded as PCOR/CBL at a place other than their Headquarters, ie. Purna against the stationary posting of ae ©.A.No.680/2018 PCOR/CBL, the applicants are entitled for 120 Ks, ILM (in Lieu of Mileage} and 7O kms. outstation allowance which are compensatory allowances intended to meet the expenditure to be incurred to stay outside the Headquarters while performing duties against the stationery post, and that they were also accordingly paid for performing their duties at outstation Le. at a place other than their Headquarters.
&. The learned counsel for the applicants also submits that, all of a sudden without any show cause notice or opportunity to the applicants, the 3 Respondent issued the impugned Annexure A2-Note dated 4.5.2018 for recovery of different amounts from the applicants by stating that the said amounts were paid in excess of the payment of Outstation (Relieving) Allowances for the mumber of days mentioned respectively against each applicant.
7. The applicants preferred representations - Annexure AS to Annesure AY - against the impugned Annexure A2-Note dated 4.5.2018 but in vain. Hence, the instant Original Application.
8. The learned counsel for the applicants further submits that the applicants, were drafted to work at Nanded, i.¢., ata place other than Purna (which is their Headquarters}, met on the request or voHtion of the applicants but on the orders of the respondents themselves, due to administrative exigencies. That is why the applicants were paid all the allowances as per the Rules for which they are legally entitled. The learned counsel submits that Para 911 of the IREM Vol. I provides for payment of Outstation (Relieving) Allowances to the running staff deputed to work temporarily stations cuiside their Headquarters either on running or stationary duties. The prescription of maximum period of two months, for payment of the said allowances, was to benefit the employees for net deputing them continuously for long periods at than their Headquarters and to reduce their suffering by outstations other forcibly staying at outstations by leaving their families at the Headquarters.
O.A.No. 680/2018 4'spondents having violated the said Para 911 by continuing any running staff beyond two months, in any outstation, cannot avoid payment of the Outstation (Relieving) Allowances to the employees on the ground that the deputation was beyond the period of two months. Continuing for a particular period in any outstation by a running staff member was not in his hands and hence the administration if continued any running staff in an outstation, even beyond the maximum period, they are Hable to pay the said allowances to the stall for the period they were deputed in an outstation.
9, The learned counsel for the applicants further submits that in any event the impuened Annexure A2-Note dated 4.5.2018 is liable to be set aside as the same is violative of principles of natural justice. The same was issued without giving any opportunity to the applicants to show cause and also violative of the various judgements of the Hon'ble Apex Court, mare so, in State of Punjab and Others v. Rafiq Masih (White Washer) and Others, (2015) 2 SCC {L&S}
38. Further, the impugned order was issued by an incompetent authority and on this ground also, according to the learned counsel, the impugned order is Hable to be set aside.
10. The learned counsel appearing for the respondents-Rallways, while denying the submissions made on behalf of the applicants, would submit that Para 911 of the IREM is in the nature of a statutory rule and once it prescribes a maximum period of two months for payment of Outstation (Relieving) Allowances, any running staff deputed to work in temporary station outside their Headquarters, no such allawances can be paid beyond the said period.
ii. The learned counsel for the respondents further submits that Para O11 is very clear and the time limit of two months was the maximum period, permissible under the said Para 911 of IREM and hence any payment made for the stay beyond the period of two months is recoverable and no one can claim any exception from the same. The applicants are Senior Assistant Loca Pilots (SALP) and were working in the Railways since long time and was suppased to SS ae . wee we o* aes O.A.N0.680/2018 know all the rules, more so, the various conditions under the IREM. Hence, neither they can justify the payment of the allowances beyond the maximum period of two months nor opposed the recovery of the excess payment of Outstation {Relieving} Allowances.
12. The learned counsel for the respondents further submits that once the payment made was against Para 911 ef the IREM, the applicants cannot challenge the recovery of the said excess payment on the ground that no advance notice was issued to them te show cause. The learned counsel also submits that the impugned order was issued alter the Audit found that the applicants were paid the allowances in excess of their entitled amount and in violation of Para 911 of the IREM,
18. The learned counsel for the respandents also submits that the Judgement in Rafiq Masih (White Washer} and Others {supra}, has no application to the applicants' case as they were neither retired employees nor about to retire in the near few years. The learned counsel also submits that the action of the respondents is legally valid and in terms of the DoPT OM dated 06.02.2014 {Annexure R2). Accordingly, the learned counsel for the respondents prays for dismissal of the OA.
14, In view of the above referred rival submissions, it is relevant to note Para 911 of the IREM, which is as under:
"921. Gutstation (Relieving) Allowance
(i) This allawance shall be payable to running staff deguted to work temporarily stations ouside thalr headquarters eather on runming or stationary duties. Payments will be made as the rates specified in Rade 21 for Outstation idatention Allowance for each day reckoned from the date of arrival at the Gutstation.
(i) The allowance shall be regulated in the following manner fa} when the running staff are sent fo an outstation to officiate in higher posts, allowance shall be paid for a perlad of 14 days only.
(o} when running staff are sent to an outstation in the same capacity, the allowance shall be paid for a maximem period of 2 months.
ic} the perind of journey to and from the relieving station shall be treated as duty, either Spare ar running, and the allawance paid acrardingly."
femphasis sugpiied) O.A.No.680/2018 & As rightly submitted by the learned counsel for the respondents, the various paragraphs of the IREM, including Para 911, which provides ~ Qutstation (Relieving) Allowance, are statutory in nature. But, if Para 011 is vaiolated by the authorities, whether the running staff can be deprived af payment of Outstation (Relieving) Allowance, though they were actually discharged their functions in stations outside their Headquarters, is the issue, in the instant OA.
ig, On a hare perusal of Para 911 ibid, clearly indicates that the payment of Outstation (Relieving) Allowance to the running staff was provided to meet the administrative exigency temporarily stations outside their Headquarters either on running or stationery duties. It was not provided to meet the permanent ar long standing needs. That is why a maximum period of two months was presoribed for payment of the said allawances. It cannot be said that continue to work at a station for a particular period, Le, less than two months or beyond, was within the hands of thase running staff, who were deputed to work at those stations. i was for the administration to menitar the administrative exigency, from time to time, and nothing prevents therm to transfer a member of a running stalf from his Headquarters to the said stations if their services are required for longer periods, Le., beyond the maximum period of two months as provided in Para 911 of IREM to the said station. The respondents authorities having not followed Para 911, cannot deprive the staff who were deputed to work at those cutstations, by leaving their family/children for longer periods. Para 911 cannot be interpreted by the aclministration to the disadvantage af the applicants and other similarly placed running staff, after having put them in difficult conditions of working in a station outside their Headquarters. In view of the uncertainty, the concerned staff cannot shiit their family, fo those stations outside their Headquarters.
17. Further, it was also not the case of the respondents that the applicants were in any way responsible by their misrepresentation or misleading the administration, in posting them beyond the maximum period of two months for O.8,No.680/2018 getting the Outstation (Relieving) Allowances. Annexure Al dated 06.02.2018, issued by South Central Railway, Nanded Division, indicates that the administration was advised that the staff responsible for wrong/excess payment in favour of the applicants, be identified and action under the Discipline and Appeal Rules may be initiated/comtemplated against such employees. But the respondents instead of identifying the persons responsible for excess payment, by continuing the applicants for longer periods, and recovering the said amount from the said responsible staff, trying to recover the amount from the applicants, though they were compelled to work in cutstations other than their Headquarters, which is impermissible.
18 At the outset, though the learned counsel for the applicants submits that the impugned Amnexure A2 {Note} dated 04.05.2018, was issued by an incompetent authority, we are not impressed with the said contention as the same was issued for Divisional Railway Manager and the applicants failed ta show, the same was not approved by the competent authority.
19. The law on the point of recoveries from the public servants was seen a sea-change after the Hon'ble Apex Court has pronounced the Judgement in Rafig Masih (White Washer) and Others (supra} and the relevant Paragraphs of which are reproduced as under:
"3, The issue that we have heen required to adjudicate is, whether all the private respondents, 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. For the applicability of the instant order, and the conclusions recorded by us hereinalter, the Ingredients depicted in the foregoing two paragraphs are essentially indispensable.
4. Merely on account of the fact, that the release of these monetary benefits was based on a mistaken belief at the hands of the employer, and farther, because the employees had ne role in the determination of the employer, could it be legally feasible, for the private respondents to assert, that they should be exempted from refunding the excess amount received by PEM? oe neeee &. in view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary os we ave Ba ye Nor a O.ANG.680/2018 8 gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake commitied by the employer, or merely because the emplovee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee,
18. If 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 fo herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
() Recovery from employees belonging to Class-THE and Class- TV service (ar Group 'C' and Group 'D' service}, (id) Recovery from retired employees, or employees who are duc to retire within one year, of the order of recovery.
{ii} Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order af recovery is issued.
fiv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid sccordingly, even though he should have rightfilly been required to work against an inferior post.
(¥} In any other case, where the Court arrives at the conclusion, thal recovery if made trom 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."
20. The learned counsel for the respondents places reliance on the DoPT's OM dated 06.02.2014 (Annexure R2) which was issued prior to the Judgement in Rafiq Masih (supra) and whereas the learned counsel for the applicants places reliance on the DoPT's OM dated 02.03.2016 (Annexure R2}, which was issued afier considering Rafiq Masih isupra).
21. In view of our findine that the respondents-Railways having extracted the work from the applicants, at a station outside their Headquarters, cannot recover the said allowances from them, the OA deserves to be allowed on the said ground. Even otherwise also, in the totality of the faets of the case and in the circumstances, the ne weer oan sity 0.A.Ne.680/2018 applicants are also entitled for the benedit of waiver of resatery, in terms of Para 180} and (v) of the Judgement of the Hon'ble Apex Court in Rafiq Masih (supra).
22. For the aforesaid reasons and in the circumstances, the OA js allowed and the impugned Annexure A2-Note dated 04.05.2018 is quashed with all the consequential benefits. If the respondents have recovered any amount before Passing of the stay order, in terms of the Annexure Ad-Note dated 4.5 2018, the same shall he reflinded to the applicants within 86 days from the date of receipt of 2 copy of this order. Further, this order shall not preclude the respondents from identifying the persons respansible for continuing the applicants for longer periods at the stations outside their Headquarters, in violation of Para 911 of IREM and after following due procedure, recover the amount af Qutstation (Relieving) Allowance paid beyond two months from such responsible persons, ifthe respondents are so advised. No order as to costs,