Central Administrative Tribunal - Jaipur
Swaroop Narayan vs M/O Railways on 21 August, 2020
OA No. 291/620/2019 with MA No. 291/218/2020 1
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 291/620/2019
with
MISC. APPLICATION NO. 291/218/2020
Order reserved on 17.08.2020
DATE OF ORDER: 21.08.2020
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Swaroop Narayan son of Shri Madan Lal, aged about 59
years, Resident of House No. 141/39, Uparla Kua, Near
Baba Ramdev Mendir, Dhola Bhata, Ajmer - 305001
and presently working as Senior Technician Fitter (MCF)
Ticket No. 71006), under Deputy Chief Mechanical
Engineer (Carriage Workshop), North Western Railway,
Ajmer Division, Ajmer - 305001.
....Applicant
(Group-C, Mob.: 70232-64220)
Shri C.B. Sharma, counsel for applicant (through Video
Conference).
VERSUS
1. Union of India through General Manager, North
Western Zone, North Western Railway, Near Jawahar
Circle, Jagatpura, Jaipur-302017.
2. Chief Works Manager, Carriage Work Shop, North
Western Railway, Ajmer Division, Ajmer - 305001.
3. Deputy Chief Mechanical Engineer (Carriage
Workshop), North Western Railway, Ajmer Division
Ajmer-305001.
OA No. 291/620/2019 with MA No. 291/218/2020 2
4. Senior Divisional Finance Advisor & Accounts Officer,
Carriage Work Shop & Store, North Western Railway,
Ajmer Division, Ajmer - 305001.
....Respondents
Shri M.K. Meena, counsel for respondents (through
Video Conference).
ORDER
Per: Hina P. Shah, Judicial Member The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"(i) That the respondents may be directed to hold good pay & allowances at the stage of Rs.
43600 (level-5 or 6) as on 30/06/2019 with the benefits of annual increment as on 01/07/2019 by quashing order dated 16/08/2019 (Annexure-A/1) and letter dated 20/09/2019 (Annexure-A/2) with all consequential benefits.
(ii) That respondents be further directed not to recover any amount from pay & allowances and further retirement benefits of the applicant and to hold good the pay fixation allowed time to time prior to passing order dated 16/08/2019 (Annexure-A/1) by quashing any order passed by the respondents showing recovery which nowhere served upon he applicant with all consequential benefits.
(iii) That respondents be further directed to reconsider the re-fixation of the applicant for allowing special increment towards family planning and further one additional increment as per order dated 23/03/2012 (Annexure- A/17) with all consequential benefits. OA No. 291/620/2019 with MA No. 291/218/2020 3
(iv) Any other order, direction or relief may be passed in favour of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case.
(v) That the costs of this application may be awarded."
2. The brief facts of the case as stated by the applicant are that he was initially appointed as a Helper on 22.08.1985. After working on several posts, finally he was working as Senior Technician Fitter (MCF). He was allowed pay and allowances after due fixation since 1985 and time to time his service records were verified by the Accounts Department. His pay was re-fixed in 2002 at Rs. 3575/- and, thereafter, he was continuously drawing pay and allowances. In 2008, he was granted promotion to the cadre of Technician Grade-II (Machine Operator) and his pay was fixed in the Pay Band Rs. 5200-20200 with Grade Pay Rs. 2400/-vide order dated 03.10.2008 and, thereafter, his pay was fixed at Rs. 9750/- with Grade Pay Rs. 2800/- vide order dated 03.08.2011. He was further posted as Material Collector vide order dated 08.08.2011 in same Grade Pay in Tool Store and, thereafter, he was given promotion to the post of Technician Grade-I Fitter (M) and his pay was fixed at Rs. 10500/- with the same Grade Pay Rs. OA No. 291/620/2019 with MA No. 291/218/2020 4 2800/-vide order dated 28.04.2014. He was further allowed Level-6 in pay scale Rs. 35400-112400 from Level-5 and, thereafter, he submitted his option for fixation of pay at Rs. 43600/- on 01.07.2019 vide his request letter dated 14.02.2019, which option was accepted by the respondents and his pay fixation was allowed vide order dated 18.02.2019. Since his date of birth was 11.06.1960, he retired on 30.06.2020 and just prior to his retirement, the respondents re-fixed his pay vide order dated 16.08.2019 since 1990 i.e. for last 29 years and recovery was ordered. In this regard, the respondents only stated that benefits of Rs. 25/- were allowed to him, whereas Rs. 12/- has been shown towards reduction in the year 1990. The applicant represented against the order dated 16.08.2019 before the respondent No. 3 but he was informed vide letter dated 20.09.2019 that wrong fixation has been done in his service book, which has been corrected and, therefore, fixation has been correctly done. It is the grievance of the applicant that his pay has been reduced from Rs. 43600/- to Rs. 42300/- as per his pay slip for the month of September 2019 and that re- fixation of his pay has been done without hearing him and without considering his representation. Pertaining to his grievance of increments, it is stated that the OA No. 291/620/2019 with MA No. 291/218/2020 5 month of increment remained March in the year 1990 and 1991, but same was changed without any base due to which he was put to financial loss. As per Railway Board's order No. 40/2012 dated 23.03.2012, one additional increment was allowed to those employees, whose annual increment fell between February to June 2006. The applicant has also relied on the OM issued by the DOPT as well as on the Circular/OM issued by Railway Board on the issue of wrongful recovery of excess payments made. Therefore, the action of the respondents is arbitrary, illegal and unjustified. Hence, the applicant has approached this Tribunal for quashing the order dated 16.08.2019 (Annexure A/1) and letter dated 20.09.2019 (Annexure A/2) with all consequential benefits.
3. This Tribunal issued notices to the respondents and vide its order dated 11.10.2019, as an interim measure, granted stay towards order dated 16.08.2019 on recovery till the next date of hearing.
4. The respondents, after issue of notices, have filed their reply. The respondents, besides denying the contention of the applicant, further stated that as per the office order dated 16.08.2019, employee's pay was OA No. 291/620/2019 with MA No. 291/218/2020 6 re-fixed due to anomaly in pay fixation in the year 2002 as the same was wrongly done. So proper re-fixation was done and orders were issued accordingly. As per the respondents, the applicant was duly informed about wrong fixation vide its order dated 16.08.2019 that if any irregularity is found later, the same will be corrected. Accordingly, applicant was informed vide letter dated 20.09.2019 and it was categorically mentioned that after re-examining his service book, the pay of the applicant has been re-fixed inadvertently and the same has been corrected subsequently. They have further reiterated that it is well settled principle that mistake is required to be rectified at any point of time as and when it comes to the knowledge and, therefore, letter dated 20.09.2019 is correctly issued and proper re-fixation has been done. With regard to the justification on increments, it has been submitted by the respondents that the benefit of RBE 40/2012 has not been given to the applicant since increment of 2005 was shown as 01.12.2005. Pertaining to justification on recovery, it has been stated that as per Para 1327 (FR 31A) of the Indian Railway Establishment Code, it is clear that the pay of a railway servant who promotion or appointment to a post is found to be or to have been erroneous shall be regulated in accordance with any OA No. 291/620/2019 with MA No. 291/218/2020 7 general or special orders issued by the competent authority in this behalf. Therefore, the respondents stated that as there were inadvertent mistakes in re- fixation of pay of the applicant, the same were rectified and proper re-fixation has been done as per rules.
5. It is brought to our knowledge that the applicant has also filed C.P. No. 291/38/2020 in this matter and the respondents have also filed an M.A No. 291/218/2020 for vacation of interim order dated 11.10.2019.
6. Heard learned counsels for the parties through Video Conference and perused the material available on record and also the judgments produced by the parties.
7. Learned counsel for the applicant submitted that the applicant was allowed due fixation of pay as per the orders issued by the respondents from time to time, which was checked by the Accounts Department regularly for promotions, etc. The action of the respondents to reduce the pay of the applicant at the verge of his retirement and that too after 29 years is not justified and as such the action of the respondents is liable to be quashed and set aside. The respondents OA No. 291/620/2019 with MA No. 291/218/2020 8 have not followed principles of natural justice and did not disclose the facts under which adverse action of recovery was taken by them. The respondents are recovering the amount for no fault of the applicant and that he has never misrepresented while benefits and pay and allowances were granted to him. The applicant relied on the following judgments:-
i) Bhagwan Shukla Vs. Union of India & Ors., 1994 SCC (L&S) 1320.
ii) Sahib Ram Vs. State of Haryana & Ors., 1995 (1) SLJ (SC) 151.
iii) State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors., 2015 (2) SCC (L&S) 33.
iv) Norat Mal Vs. Union of India & Ors. (OA No. 269/2019) decided by this Bench of the Tribunal on 16.12.2019 and confirmed by the Hon'ble High Court of Rajasthan, Jaipur Bench in D.B. Civil Writ Petition No. 1774/2020 vide judgment/order dated 19.02.2020.
8. On the other hand, learned counsel for the respondents argued that it was brought to the notice of the applicant by the order dated 16.08.2019 that irregularity pertaining to pay has been found on his promotion to the tune of Rs. 25/- while going through the service book for which he was not entitled and, therefore, recovery of excess payments will be carried out. He was also given a chance to put his OA No. 291/620/2019 with MA No. 291/218/2020 9 say/represent on the same within 5 days of the receipt of the said letter. Thereafter, vide letter dated 20.09.2019, it was brought to the notice of the applicant that after re-verifying his records, it was found that there were irregularities in payments made to the applicant and, therefore, the discrepancies are required to be corrected. Thus, the respondents state that there is no illegality in their orders and the present Original Application deserves to be dismissed. The respondents relied on the order dated 20.09.2019 passed by Chandigarh Bench of this Tribunal in the case of Jagir Ram Vs. Union of India & Ors. (OA No. 060/1262/2017).
9. It is clear that the facts are not in dispute with regard to the applicant's appointment as well as his several promotions and that he stood retired on 30.06.2020. It is also clear from the service book entries that the applicant has been promoted on several occasions and the same has been entered in his service records regularly. On several promotions, his pay was fixed accordingly. Time and again on several occasions, his service book must have been verified by the concerned authorities for making the said entries as well as by the applicant, who has got the pay benefits. OA No. 291/620/2019 with MA No. 291/218/2020 10 It is noted that the applicant was appointed initially on 22.08.1985 as Helper. He has got special increment in 1993 and got promotions/fixation of pay in 2008, 2011, 2014 and also in 2019 and lastly by order dated 01.07.2019 his pay was fixed at Rs. 43600/- and, thereafter, he submitted his option for fixation of pay w.e.f 01.07.2019 as per his request letter dated 14.02.2019 (Annexure A/12). Now the respondents, all of a sudden, by their order dated 16.08.2019 (Annexure A/1) state that on verification of service book of the applicant , it is noticed that on promotion he has been granted the benefit of Rs. 25/- for which he was not entitled and, therefore, his pay will be fixed accordingly. The respondents have shown re-fixation since 1990 and have observed in its order dated 16.08.2019 that the applicant should be ready for the recovery. It is seen that the applicant's salary has been reduced from Rs. 43,600/- to Rs. 42300/-. He was given 05 days' time to submit if he had any grievance on the said order. The applicant has made a representation immediately before the authorities on 27.08.2019 (Annexure A/15) stating that no recovery should be carried out as he is retiring on 30.06.2020 and that he is informed about wrong fixation only 10 months prior to his retirement along with other submissions. To this, the respondents vide OA No. 291/620/2019 with MA No. 291/218/2020 11 their letter dated 20.09.2019 (Annexure A/2) stated that his service records have been re-checked and verified and it is found that in service records there are several discrepancies, which are rectified and, therefore, the pay fixation done as per order dated 16.08.2019 is just and proper. It is clear that the pay fixation in the case of the applicant has been verified time and again, but still just before his retirement, respondents inform the applicant that his pay fixation is not proper and that he has been wrongly given Rs. 25/- on promotion so re-fixation was carried out since 1990. Though, the respondents have informed the applicant but it was mere formality as re-fixation was done sometime just before his retirement. The respondents should have checked the incorrect fixation at the relevant time of recording entries in his service book. It cannot be said that just when the applicant is about to retire the respondents come out with a plea that since 1990 the applicant is drawing Rs. 25/- more and, therefore, if there is any discrepancy, the same should be allowed to be rectified. It is clear that the applicant neither was at any fault nor he has misrepresented. Also the respondents came out with wrong fixation only during his retirement. The case of the applicant is squarely covered by judgment passed by the Hon'ble OA No. 291/620/2019 with MA No. 291/218/2020 12 Apex Court in the case of Rafiq Masih (supra) and it is clear that no recovery shall be made from either retired employees, or the employees who are due to retire within one year, of the order of recovery. Also in the present matter, no recovery can be made from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. Also no recovery can be made from a Class III or Class IV employee. The case of Jagir Ram (supra) relied by the respondents will not come to their shelter as facts of the said case and the present one are different. The question in dispute in Jagir Ram's case was with reference to mistake in considering the period as qualifying service, which was arbitrarily reduced and in violation of principles of natural justice of which the applicant was also aware from the entries made in his service book and, therefore, it was held that recovery was justified, whereas, in the present case, the situation is completely different. The Hon'ble Apex Court's judgment in the case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh, (2016) 14 SCC 267 will also not come to the rescue of the respondents as in that case, recovery was permitted on the basis of the undertaking given by the employee. Therefore, it is clear that the recovery with regard to pay fixation OA No. 291/620/2019 with MA No. 291/218/2020 13 carried out in the case of the applicant vide order dated 16.08.2019 is highly unjust and improper. It was the duty of the concerned officers to take adequate steps of proper fixation of pay at the appropriate time and not when the applicant is about to retire. Therefore, the question of recovery pursuant to re-fixation of his pay will be harsh and, therefore, impermissible. The respondents will be required to stop the recovery and consider his pay as was existing prior to the passing of the impugned order. As far as the question of increment is concerned, as applicant was aware about the same from the records/ entries made in his service book carried out at that relevant time, it is, therefore, highly unjust for him to demand the same in 2019 at the time of filing of the present Original Application. Therefore, the applicant should have no grudge with regard to his increment as the same was rightly done by the respondents.
10. In view of the observations made above, the present Original Application is allowed and the impugned order dated 16.08.2019 (Annexure A/1) and letter dated 20.09.2019 (Annexure A/2) are quashed and set aside with all consequential benefits. No costs. OA No. 291/620/2019 with MA No. 291/218/2020 14
11. In view of the order passed in the Original Application, Misc. Application No. 291/218/2020 for vacation of interim order dated 11.10.2019 is hereby dismissed.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER Kumawat