Central Administrative Tribunal - Allahabad
Vishnu Deo & Ors vs Union Of India on 3 January, 2023
Reserved on 22.12.2022
Central Administrative Tribunal, Allahabad Bench,
Allahabad
This the 03rd day of January, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 1308 of 2010
1. Vishnu Deo S/o Late Ram Lagan, aged about 55 years R/o
Ram Khilawan Nagar Bogi, Post: Ghoorpur, Dist: Allahabad.
2. Phool Chand S/o Shri Kedar Nath, aged about 48 years, R/o
Railway Quarter, Iradatganj Railway Station.
3. Ram Siromani S/o Shri Kalap Nath Dubey, aged about 54
years, R/o Village - Chhota Chaka, Post - Bara Chaka, Naini,
Distt: Allahabad.
........... APPLICANTS
By Advocate: Shri S.S. Sharma and Shri Ravi Sharma
Versus
1. Union of India through General Manager, North Central
Railway, Head Quarters Office, Subedarganj, Allahabad.
2. The Divsional Railway Manager, North Central Railway,
DRM, Office Jhansi.
3. The Senior Divisional Personnel Officer, North Central
Railway, DRM, Office Jhansi.
4. The Senior Oplerating Manager, North Central Railway, DRM
Office, Jhansi.
..........RESPONDENTS
By Advocate: Shri Manoj Kumar Sharma
ORDER
Shri A.N. Ambasta, learned counsel for the applicants and Shri Manoj Kumar Sharma, learned counsel for the respondents, were present at the time of hearing.
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2. The instant original application has been filed seeking following relief:
"(i) That the Hon'ble Tribunal may graciously be pleased to quash / set aside impugned 'Speaking Order' dated 17.07.2010 issued by the Sr. DPO / North Central Railway, Jhansi rejecting claim of the applicants against the reduction of pay and alleged recovery from their salary of excess payment on this account being illegal, arbitrary, against the principles of natural justice and statutory rules as well.
(ii) That Hon'ble Tribunal may graciously be pleased to quash / set aside impugned order dated 25.02.2010 issued by Divisional Railway Manager (P) North Central Railway Jhansi intimating applicants for recovery the alleged excess payment of pay from the salary of Vishnu Deo, the applicant no. 1, Rs.
17928/-, Phool Chand applicant no. 2 Rs. 17790/- and Ram Siromani applicant no. 3 Rs. 15122/- which is illegal, against the principles of natural justice and settled law in this respect.
(iii) That the Hon'ble Tribunal may graciously be pleased to direct the respondetns to refund the amount of Rs. 1978 to applicant no. 1, Rs. 1978/- to applicant no. 2 and Rs. 2160/- to applicant no. 3 as recovered from their salary for the month of May, 2010 and June 2010 on this account being illegal, against the principles of natural justice and statutory rules and settled law as well.
(iv) That the Hon'ble Tribunal may graciously be pleased to direct the Divisional Railway Manager, NCR Jhansi to restore the pay of applicant at Rs. 3345 in grade 2610-3340 on 18.12.1998 in the case applicant no. 1 and to restore pay of Rs. 3215/- in grade Rs. 2610-3540/- as on 18.12.1998 in the case of applicant no 2 and to restore pay to Rs. 970/- as on 01.07.1993 in grade Rs. 800-1150 in the case applicant no. 3 as have been wrongly reduced resulting excess payment of salary and recovery thereof from the applicants.
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(v) That the Hon'ble Tribunal may graciously be pleased to direct DRM, NCR, Jhansi to make payment of salary paid less to the applicants on account of reduction of pay with interest thereon.
(vi) That the Hon'ble Tribunal may graciously be pleased to impose heave cost in favour of applicants.
(vii) That Hon'ble Tribunal may graciously be pleased to pass any other order or direction as may deem fit and proper in the facts and circumstances of the case."
3. The limited controversy involved in the present original application is that the applicants are aggrieved by recovery from their emoluments following a reduction in their pay which the respondents have done on account of an alleged overpayment. The brief facts of the case as have been narrated in the present original application are that applicant no. 1 namely Shri Vishnu Deo and applicant no. 2 namely Shri Phool Chand were initially appointed as Gangman and on 19.02.1981 and 18.12.1998 respectively, they were granted temporary status on that post in grade 775-1025/- under the office of Jabalpur Division of Central Railway. As regards to applicant no. 3 namely Shri Ram Siromani, he was appointed as Station Porter in grade Rs. 196-232/- in Jabalpur Division of Central Railway. The applicants have been drawing their emoluments on a regular basis along with the relevant increments to the extent that their pays were fixed from time to time. Two orders dated 17.07.2010 and 25.02.2010 passed by the competent authority amongst the respondents have been challenged in the present original application as the applicants allege that their pay fixation has been carried out in a wrong way to the extent that huge recoveries have been attributed against him.
4. I have heard the learned counsels appearing for the parties and perused the documents on record.
5. Initiating his arguments, learned counsel for the applicants submits that pay fixation of applicant no. 1 and
3|Page applicant no. 2 upon promotion in grade Rs. 2610-3540/- on 18.12.1998 was done by the Jabalpur Division to the extent that their pay was correctly fixed at Rs. 3345/- and Rs. 3215/- respectively. But after formation of a new Zonal Railway i.e., North Central Railway with Headquarter at Allahabad, the stations namely Iradatganj and Link junction where applicant no. 1 and applicant no. 2 were working came within the jurisdiction of Jhansi Divsion of Central Railway from Jabalpur Division of Central Railway. Consequently, Jhansi Division reduced the pay of the applicant no. 1 from Rs. 3545/- to Rs. 3212/- and reduced pay of applicant no. 2 from Rs. 3212 to Rs. 3090 from 18.12.1998 without affording any reason or giving any opportunity to the applicants. What can be inferred as the height of arbitrariness and an absolute non-application of mind by the respondents is that the grade of the applicants was also reduced to Rs. 2610-3050/- despite the fact that there is no grade of Rs. 2610-3050/- in Railway Department. As regards to the pay of applicant no. 3, it was correctly fixed by Jabalpur Division as on 01.07.1993 in grade Rs. 800-1150/- on promotion with effect from 13.07.1989 but the same was reduced from Rs. 970/- to Rs. 965/- without affording any reason and giving any opportunity to the applicant resulting in the reduction of pay of the applicant in the month of September 2009 from Rs. 10579/- to Rs. 10430/-.
6. Continuing his averments, learned counsel for the applicant further submits that after reducing the pay of the applicant no. 1 and 2 with effect from 18.12.1998 and applicant no. 3 with effect from 01.07.1993, the respondents re-fixed the pay of the applicants on the basis of reduced pay and vide letter dated 25.02.2010, the applicants were informed about the recovery of excess payment of Rs. 17928/- from the pay of applicant no. 1, Rs. 17798/- from the pay of applicant no. 2 and Rs. 17798/- from the pay of applicant no. 3 in installment. Being aggrieved from the said recovery order, the applicants preferred O.A. No. 690 of 2010 before the Allahabad Bench of Central Administrative Tribunal and the Tribunal disposed of the OA on
4|Page 25.05.2010 directing the respondents to decide the representation of the applicants by way of a speaking and reasoned order. In compliance to the directions of the Tribunal, Sr. DPO/NCR, Jhansi passed the Speaking Order dated 17.07.2010 rejecting the request of the applicants against the reduction of pay and recovery of excess payment from their salary on the pretext that the pay was correctly fixed by Jhansi Division though it was wrongly fixed by Jabalpur Division. Moreover, the said order dated 17.07.2010 fails to stand the test of a reasoned and speaking order as it does not specify any cogent reason for not re-fixing and reducing the pay of the applicants. Moreover, from even a plain reading of the said order dated 17.07.2010, it is apparent that the pay was fixed wrongly against rule of pay fixations as per 4th Central Pay Commission.
7. Continuing his rebuttal of the order dated 17.07.2010, learned counsel for the applicants further submits that in the said order, case of the applicants have been wrongly connected with Shri Basant Lal and Shri Babulal Pointman 'A' alleging that these seniors were getting less payment then the applicants and as such their pay was reduced. This is indeed a bizarre and baseless reason to be quoted in any speaking order as in fixation of pay there is no rule that if senior is getting less pay due to any reason whatsoever, pay of junior is liable to be reduced to the level of Senior. The rule is that Senior should not get less pay that his junior. And therefore, in accordance with this averment, the pay of Shri Basant Lal and Shri Babulal should have been fixed at par with the applicants and not the opposite should have happened.
8. Moreover, drawing attention to the documents as have been enclosed along with the OA, learned counsel for the applicant further submits that while applicant no. 1 and 2 were working under Jabalpur Division, their pay had always been fixed in accordance with rules and provisions governing the matter and it was only altered when they came under the jurisdiction of Jhansi Division upon the creation of North Central Railway in
5|Page which applicants had no role to play. Therefore, wrong fixation of pay and reduction thereby is in absolute violation to the principles of natural justice as merger of office or formation of any new office must not result in reduction of pay of its employees as has happened in this peculiar case. Moreover, no opportunity of hearing or show cause was afforded to the applicants before issuance of recovery order. This very fact speaks for the arbitrary and discriminatory action of the respondents. In fact, the name of Shri Basant Lal and Shri Babulal has been mentioned simply to misguide the issue.
9. Concluding his arguments, learned counsel for the applicant further submits that about 100 Gangmen were posted as Station Porter in the year 1996 along with the applicants but pay of none of them was revised and reduced except the applicants without giving any reasons for the same which itself speaks for the discriminatory treatment which has been afforded to the applicants.
10. Learned counsel for the respondents vehemently opposes the prayer of the applicant submitting that a department is always well within its rights to recover any amount from the employees which has been paid to them on account of an inadvertent or wrong pay fixation and this case is no different.
11. Drawing attention to the averments made in the counter affidavit, learned counsel for the respondents submits that as far as applicant no. 1 is concerned, he was promoted in higher grade of Rs. 800-1150/- and as such he got full financial benefits in fixation in Engineering Department and on coming in the Operating Department as Station Porter in the lower grade, which he himself requested for, his pay was accordingly fully protected by granting Protection pay (PP) and hence, no less payment was made to the applicant no. 1. It is further clarified that the only pay which had been wrongly fixed was corrected and rectified by the Jhansi Division as Jabalpur Division had erroneously granted wrong fixation of pay on promotion in the grade of Rs. 2610-
6|Page 3540/- as Station Porter by granting him Rs. 100/- as notional pay which was not required to be given since the applicant had already got the benefit of fixation in Engineering Department in grade Rs. 800-1150/-
12. As regards to the applicant no. 2, learned counsel for the respondents submits that he was posted in higher grade Rs. 775- 1025/- and got full financial benefit in fixation in Engineering Department and on coming in Operation Department as Station Porter in lower grade, which he himself requested for, his pay was fully protected by granting Personal Pay (PP) and hence, no less payment paid to the applicant no. 1. Only pay has been corrected by Jhansi Division as Jabalpur Division had granted wrong fixation of pay in promotion in grade Rs. 2610-3340/- as Station Porter by granting him rs. 100/- as notional pay which he was not required to be given since he had already got the benefit of fixation in Engineering Department in grade Rs. 775-1025/-.
13. As regards to applicant no. 3, learned counsel for the respondents submits that just like the case with applicant no. 1 and 2, the pay of applicant no. 3 was wrongly fixed from Rs. 950/- to Rs. 970/- by Jabalpur Division instead of Rs. 965/- which was corrected by Jhansi Division.
14. Learned counsel for the respondents further submits that the claim of the applicants that order dated 17.07.2010 which was passed in compliance of the direction of Central Administrative Tribunal is a non-speaking and non-reasoned one is unwarranted as the said order conspicuously appears to be a speaking and reasoned one as the entire pay fixation has been vividly enumerated in that order in the form of chart.
15. As regards to the claim of the applicant's counsel that about 100 Gangmen were posted as Station Porter in the year 1996 along with the applicants but pay of none of them was revised and reduced except the applicants, it is stated by the learned counsel for the respondents that if it comes to the notice
7|Page that similarly placed persons are working in Jhansi Division, their pay will also be corrected and rectified as per rules.
16. Concluding his arguments, learned counsel for the respondents submits that it is crystal clear that on account of wrong fixation of pay of the applicants made by the Jabalpur division, they were paid higher salary which has been accordingly deducted and recovered now upon the correct pay fixation done by Jhansi Division. As such the order passed by the respondents needs no interference from any judicial forum as it is a well settled legal position as laid down by the Apex Court in several judgments that rectification of official error in respect of payment of salary or other financial payments can always be possible on the part of Government as soon as the wrong payment / overpayment is detected and comes to the notice of the competent authority. In such event, the Apex Court has reiterated that no notice to the employee is required to be served upon as the same is within the service condition agreed between the Government and employee.
17. I have considered the rival contentions advanced by the learned counsel appearing for the parties
18. It is an admitted fact that the applicants were enjoying the benefit of a pay fixation while they were serving under Jabalpur Division of the Central Railways and upon coming under the Jhansi Division, their pay was re-fixed to the extent that their basic salary was reduced and recovery of excess payment made to them was ordered.
19. It's worth mentioning that the order dated 17.07.2010 which has been impugned in the present original application speaks of the fact that the issue regarding wrong fixation of pay in regard to the applicants was raised by recognized Trade Union i.e., NCRMU in one of its meetings dated 17/18.06.2009 wherein a contention was made that two staff namely Shri Basant Lal and Shri Babu Lal both Pointman 'A', senior to the applicants were paid less than their junior staff namely Shri Phool Chand, Shri
8|Page Vishnu Deo and Shri Ram Shiromani, who are the applicants in the instant case. And upon the said contention, the case regarding wrong pay fixation of the applicants was examined. Thereupon, it was found that the pay of the applicants was wrongly fixed while they were under Jabalpur Division and accordingly, the pay was re-fixed by the Jhansi Division. Therefore, it is evident that re- fixation of the pay of applicants was done merely on the pretext of comparisons of their salary with two senior persons namely Shri Basant Lal and Shri Babu Lal both Pointman 'A' which implies that case of the applicants have been wrongly connected with Shri Basant Lal and Shri Babulal Pointman 'A' alleging that these seniors were getting less payment than the applicants and as such their pay was reduced. This is indeed a bizarre and baseless reason to be quoted in any speaking order as in fixation of pay there is no rule that if senior is getting less pay due to any reason whatsoever, pay of junior is liable to be reduced to the level of Senior.
20. Even if it is assumed that the pay of the applicants were wrongly fixed while they were under the Jabalpur Division and the same was fixed appropriately by the Jhansi Division, what cannot be overlooked at all is the fact that no show cause notice whatsoever was served upon the applicants informing that the reasons and causes due to which their pays were re-fixed amounting to recovery from their emoluments. Moreover, no opportunity of hearing was ever granted to the applicant to submit their cause. This is a gross violation of the very principle of natural justice. Salary and emoluments are one of the most essential aspects of service in which no discrepancy whatsoever can be overlooked. Moreover, as in the recent case, the applicants have been under the double whammy of wrong pay fixation and reduction in their salaries on account of recovery which is liable to render them aghast.
21. Furthermore, this Bench is of the view that as the excess payments to the applicants were not made on account of any misrepresentation or fraud on the part of the applicants, the
9|Page recovery is not permissible. This deliberation finds support from the law laid down by the Hon'ble Supreme Court of India in the case of Thomas Daniel Vs. State of Kerala (Civil Appeal No. 7115 of 2010) decided on 02.05.2022 and also in the case of State of Punjab Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33.
22. Since in the present matter, there was no misrepresentation or fraud on the part of the applicants, excess payment said to have been made to the applicants cannot be recovered from them. It is also clarified at this stage that excess payment was made by the employer either by applying a wrong principle for calculating the pay / allowances or on the basis of a particular interpretation or rule / order, which was subsequently found to be erroneous. If such is the position, prayer made in the original application to the extent of refund of the recovered amount is liable to be accepted. The entire recovered amount along with an interest of 6% (simple interest) is liable to be refunded to the applicants.
23. In light of the above deliberations, I am of the considered opinion that the instant original application is liable to be allowed and is accordingly, allowed with the following directions:
i. Order dated 17.07.2010 issued by the Sr. DPO/North Central Railway Jhansi is hereby quashed and set aside.
ii. Order dated 25.02.2010 issued by Divisional Railway Manager (P) North Central Railway Jhansi is also quashed / set aside.
iii. Respondents are directed to refund the entire amount to the applicants along with an interest of 6% (Simple Interest) as has been deducted from their salary on account of misplaced order dated 17.07.2010.
iv. Respondents are further directed to restore the pay of the applicants as existed prior to the re-fixation done by Jhansi Division.
10 | P a g e v. Respondents are directed to comply with the above directions within a period of three months from the date of this order.
24. Accordingly, Original Application No. 1308 of 2010 stands allowed.
25. All associated MAs stand disposed of accordingly.
26. No order as to costs.
(Justice Om Prakash VII) Member (Judicial) (Ritu Raj) 11 | P a g e