Central Administrative Tribunal - Ernakulam
K.L. Santha vs Union Of India (Uoi) And Ors. on 11 December, 2002
Equivalent citations: 2004(2)SLJ23(CAT)
JUDGMENT K.V. Sachidanahdan, Member (J)
1. Applicant is the Widow of late K.G. Divakaran Pillai, who retired as Yard Master, Raichur; in Guntakal Division of South Central Railway on 31.7.97, had filed O.A. No. 256/2000 before this Tribunal challenging the correctness of the pensionary benefits granted to him and seeking details of payments made and withheld in respect of his retirement dues. During the pendency of that O.A., the original applicant passed away and the applicant herein has impleaded as substitute applicant and in the reply to rejoinder, the respondents came out with details of amounts withheld/recovered by averring in Para 8 as under:
"During the year 1988 i.e. on 1.4.88, the applicant was given two increments at a time erroneously, instead of one increment.
Increments drawn
1600-2660 (RSRP). on 1.4.86 = Rs. 2100 in scale Rs
on 1.4.87 = Rs. 2150
on 1.4.88 = Rs. 2250 (instead of Rs. 2220)
But the applicant also did not bring into the notice of administration that he was given two increments at a time. This increment was continued till his retirement. This mistake was noticed while scrutinising the service register before processing for pension and other settlement benefits. It was rectified duly revising the increments."
Annexure A/1 dated 19.4.2000 is the true copy of the impugned order. As per Annexure A/1, an amount of Rs. 19,000 was withheld from the initial payment of Death-Cum-Retirement Gratuity (DCRG, for short). Later, Rs. 6750 was released from the said amount of Rs. 19,000 after recovering Rs. 12,275 towards overpayment of salary, Rs. 70 towards rent arrears and Rs. 85 towards electrical dues. The recovery was not challenged in O.A. No. 256/2000 as this fact was unknown at the lime of filing the said O.A. That O.A was disposed of vide order dated 2.4.1.2001 (Annexure A/2) granting liberty to agitate separately the recovery of Rs. 12,275 from DCRG. In this O.A., the said recovery is challenged on various grounds and the applicant sought following reliefs:
"In view of the facts mentioned in Para 4 and the grounds mentioned in Para 5 above, it is most respectfully prayed that this Hon'ble Tribunal be pleased to:
(a) Call for the records leading to the issue of Annexure A/1 and quash the same to the extent it relates to recovery of Rs. 12,275 from the DCRG of the applicant's late husband.
(b) Declare that the recovery of Rs. 12,275 from the DCRG of the applicant's late husband was unjust, illegal and arbitrary and direct the respondents to refund the same to the applicant.
(c) Declare that the applicant is entitled to get penal interest at 18% per annum on Rs. 12,275 from 1.8.97 to the date of refund of the said amount; and direct the respondents accordingly.
(d) Award cost of and incidental to this application: (e) Pass such other orders or direction's as deemed just, fit and necessary in the facts and circumstances of the case."
2. The respondents have filed a reply statement stating that late K.G. Divakaran Pillai, voluntarily retired from service on 31.7.1997 and all his dues were settled within three months. Moreover, after the implementation of Vth Pay Commission scales, his pension and other consequential benefits were recalculated and paid to him in due course. The entire details were also furnished to the applicant's Husband vide Annexure R/1 dated 1.9.97 and the revised Pension Payment Order was sent to the deceased employee on 20.6.98 (Annexure R/2). Subsequently, another Pension Payment Order was issued duly revising both the pension and the family pension vide Pension Payment Order dated 3.5.2000 (Annexure R/3). It is pleaded that during the year 19.88, i.e. from 1.4.88, he was granted two increments at a time erroneously instead of one as furnished in Paragraph 8 of the reply statement furnished against the rejoinder in O.A. 256/2000, namely, the increment drawn, on 1.4.86 - i.e. Rs. 2100 in scale of Rs. 1600-2660 (RSRP), on 1.4.87 - i.e. Rs. 2150, on 1.4.88 - i.e. Rs. 2250 instead of Rs. 2200. The increment slab is Rs. 50. Though one increment was erroneously given, the deceased employee did not bring this fact to the notice of the administration and due to this, he had enjoyed recurring benefits including Dearness Allowance till his retirement. However, it came to the notice of the administration only while processing the settlement and pensionary benefits and owing to this, an amount of Rs. 12,275 was overdrawn by the husband of the applicant. Respondents contended that the claim of the applicant that the deceased employee was entitled to stepping up of pay is not correct. He never made any representation to that effect to the administration to make it at par with that of his juniors. Even if it is necessitated, it should have been done with the concurrence of the Associated Accounts. By submitting the relevant pages of service register (Annexure R/4), it is contended by the respondents that the additional increments aforesaid have been granted to him erroneously and the administration was right in effecting the recoveries of the said amount. While submitting the pension papers, the applicant's husband had not made any objection to that effect nor made any separate representation for the purpose. It was only a clerical error. While preparing the increment list the Clerk provided one extra increment inadvertently and the same went on unnoticed by the office. Though the beneficiary had full knowledge of the same, he did not bring this fact to the notice of the administration. The overpayments are recoverable as per Rule 15, Sub-rules 2 and 3 of Chapter-II of the Railway Services (Pension) Rules, 1993, which says that it shall be adjusted against the amount of DCRG. The O.A. is liable to be dismissed.
3. The applicant has filed rejoinder contending that the respondents should have produced that portion of the employee's Service Register which shows as to how his pay was enhanced, from. Rs. 2150 to Rs. 2250, on 1.4.88 to, support their contention. Annexure R/4 order passed on 29.8.97 was not communicated to the deceased employee and, therefore, the question of making any objection or representation by him does not arise. After the death of applicant's husband, she came to know of reduction of pay and recovery from her husband's DCRG. It has been urged by the learned Counsel for the applicant that a show cause notice should have been issued to the deceased employee before effecting the recovery of Rs. 12,275.
4. The respondents have filed additional reply statement to the rejoinder contending that as per Annexure R/4 dated 29.8.97, his pension was fixed and other settlement benefits were worked out and paid to the applicant's husband. The case of the applicant as to the stepping up of pay is only an after thought. The deceased employee could have made objection or represented while submitting his pension papers if he had nay grievance at that point of time.
5. I have heard Mr. M.P. Varkey, learned Counsel for the applicant and Mrs. Rajeswari Krishnan (represented by Ms. Seema Krishnan), learned Counsel for the respondents.
6. The learned Counsel for the applicant submitted that the her husband's (deceased) pay was stepped up from Rs. 2150 to Rs. 2250 with effect from 1.4.1988 on par with his junior to cure the anomaly of senior getting lesser pay than the junior in scale Rs. 1600-2660. Therefore, it was not correct to say that her husband was given two increments at a time erroneously with effect from 1.4.88. No show cause notice was given before recovering the amount in question. Any erroneous grant of increment would not have gone undetected atleast by the Audit branch for more than nine years. Thus, there was official acquiescence in the alleged grant of extra increment. Therefore, the respondents are estopped from making any recovery after the retirement of the applicant's husband. The learned Counsel for the respondents on the other hand submitted that the name of the alleged junior against whom the stepping up has been claimed by the applicant, was not shown in the pleadings which shows that the said averment is an after thought. From the records available, it could be evident that it is an inadvertent mistake committed by the respondents and the applicant cannot be allowed to take advantage of the same.
7. I have given thoughtful consideration to the pleadings, materials placed on record and the elaborate arguments advanced by the learned Counsel for the parties. I have also gone through the service register and personal file of the deceased K.G. Divakaran Pillai submitted by the learned Counsel for the respondents, which have been returned back to her after perusal.
8. It is pertinent to note that the applicant had earlier filed O.A. No. 256/2000 in which this Tribunal vide order dated 24.1.2001 passed the following order:
"7. In the light what is stated above, the application is disposed of directing the third respondent to forward the Pension Payment Order and other details regarding calculation of retiral benefits to the Manager, State Bank of Travancore, Sultan Battery Branch and to the 2nd applicant (copies) forthwith at any rate not later than three weeks from the date of receipt of a copy of this order.
The applicants shall be at liberty to agitate the question of correctness of the recovery of Rs. 12,275 from the Death-Cum-Retirement-Gratuity. No order as to costs".
Accordingly, the applicant has challenged the recovery of the impugned amount as per Annexure A/1, in which it is stated that "the details with regard to last pay, average emoluments, pension, commuted pension, commutation amount, Death Cum Retirement Gratuity, leave at credit and leave salary etc. may be prepared as is done in case of superannuation for the initial payments made. In this connection, it is brought to notice that a sum of Rs. 19000.00 was withheld from the initial payment of DCRG and the same was also released duly deducting the following amounts:
Withheld amount of DCRGR 19000.00 Recovered towards OP salary Rs.12775.00 Recovered towards rent arrears Rs. 70.00 Recovered towards Ele. Energy Rs. 85.00 Rs. 12430.00 Net amount arranged to pensioner on 14.03.2000 Rs. 6570.00
9. Learned Counsel for the applicant submitted that with regard to recovery of Rs. 70 and Rs. 85, the applicant has no grievance. But the dispute is with regard to the recovery made towards OP salary Rs. 12,275 withheld and deducted from DCRG. I also perused Page 14 of the service register of the deceased employee, which states as follows:
"Pay increased in scale Rs. 1600-2660 Rs. 2250 with effect from 1.4.88 Rs. 2300 with effect from 1.4.89"
This entry only shows that the deceased employee was granted increased pay scale. It does not indicate that the pay scale has been increased on account of annual increment. On the other hand, the other entires in the service book clearly stipulate that the increase in pay scale was because of annual increment. Therefore, evidently this increase of pay has been granted not on account of annual increment, but for any other reason, which has not been shown. It is also important to note that this was signed by the Sr. DPO as has been done in other entries, that means such entry has been duly made by the concerning clerk with the verification by the senior officer. In such circumstances, I am' not inclined to accept the contention of the respondents that it was an inadvertent mistake committed by the clerical staff. Thereafter, many years have elapsed and pages of entries in respect of his pay enhancement and others were made in the service book, but no where this was found out. In these circumstances, the contention of the applicant that this pay increase has been granted to the applicant by stepping up of his pay, cannot ab initio be ruled out.
10. Learned Counsel for the respondents has taken me to the note (Annexure R/4) bearing No. G/P535/I/T/AYMS/VOL.II dated 29.8.97 signed by the Senior GPO/GR wherein it has been stated that the deceased employee was drawing the pay at higher stage than the actual pay entitled and accordingly his pay has been proposed to be revised, i.e. Rs. 2200 (instead of Rs. 2250/already drawing) on 1.4.88, Rs. 2250 on 1.4.89, Rs. 2300 on 1.4.90, Rs. 2360 on 1.4.91 and so on. Learned Counsel for the applicant submitted that this alleged notice was not communicated to the applicant at any point of time. Had he known about this revision, he would have definitely challenged the same. This alleged letter was issued after his retirement (the applicant's husband was retired on 31.7.1997) and the residential address shown in the order is also not correct. The averment that this order was served through the Supervisor will not have any force because he was already retired and he was not under any supervisory jurisdiction. Therefore, this alleged order cannot be accepted. Then again, in the personal file, there is a letter stated to have been sent by the deceased employee in which the date shown as 4.12.97 has been disputed by the applicant. Even assuming that this letter has been sent, the question before me is whether the amount on account of increase of pay which has been granted and paid to the deceased employee, can be recovered or not.
11. The learned Counsel for the respondents submitted that as per Rule 15, Sub-rules 2 and 3 of Chapter II of the Railway Service (Pension) Rules, 1993, such amounts are recoverable by deducting the same from terminal, benefits, i.e. DCRG. The argument of the learned Counsel for the applicant that this provisions are applicable only on legally admitted dues has force especially when no show cause notice to the alleged recovery was served on the deceased employee. He also brought to my attention to the decision of Hyderabad Bench of the Central Administrative Tribunal in O.A. No. 1119/96, Sri N. Anjaneyulu v. Union of India and Anr., decided on 24.11.98 wherein even a show cause notice Was issued to the applicant proposing to fix his pay at lower stage and also to recover the excess amount paid due to over fixation by earlier order, the Tribunal held that recovery of excess payment on retrospective effect cannot be made. The respondents on their side produced another order of the Hyderabad Bench of the C.A.T. in O.A. No. 1170/2000, R. Balanarayana v. The Divisional Railway Manager and Ors., decided on 5.10.2001, wherein it was held that such recovery was not faulted. The learned Counsel for the applicant submitted that the facts of that case is not similar to the case on hand as the claim in that O.A. was relaxation in the basic pay On par with is juniors and the question of fixation etc. were involved. Therefore, that order cannot be taken as precedence to the case of the present applicant. My attention is also drawn to the cases reported in (i) 1994 SCC (L&S), 1320=1995(2) SLJ 30 (SC), Bhagwan Shukla v. Union of India and Ors., (ii) 1994 SCC (L&S), 683 = 1994(2) SLJ 99 (SC), Shyam Babu Verma and Ors. v. Union of India and Ors., wherein Hon'ble Supreme Court has held that such retrospective revision of pay is unjustified. In the case of G.R. Bindra v. Union of India and Ors., 1999(1) ATL 175, the Principal Bench of the Central Administrative Tribunal quoting the aforesaid decisions, has held that such recovery is illegal.
12. The widow of the deceased employee is he applicant herein. It is an admitted fact that she may not be able to gather all information and the details regarding service conditions of her deceased husband at this distance of time. The pay increase was effected with effect from 1.4.88 and till the retirement of the deceased employee, he was enjoying the said benefit. At this distance of time, it is not correct on the part of the respondents to say that this was a mistake committed by the clerk inadvertently. Therefore, considering the ratio of the judicial pronouncements of Hon'ble Supreme Court and also in the decision of Central Administrative Tribunal referred to above, I am of the view that the recovery could not be effected retrospectively. It is also reiterated in a decision reported in 1994(5) SLR 753= 1995(1) SLJ 151 (SC), Sahib Ram v. State of Haryana and Ors. wherein it has been held by the Apex Court that the benefit of higher pay scale was granted to him not on account of any misrepresentation by the applicant but due to wrong construction for which the applicant cannot be held to be at fault. Under the circumstances it was ordered in that case that such payments may not be, recovered from the applicant.
13. In the result, I am of the view that even if it is a wrong calculation or any mistake committed by the respondents, it is not justified in recovering the amount in question at this distance of time, that too after the retirement of the applicant's husband.
Accordingly, the impugned order No. A/PEN/GTL/RLYS/12669 dated 19.4.2000.
(Annexure A/1) is set aside and quashed to the extent it relates to recovery of Rs. 12,275 with a further direction that the amount aforesaid, i.e. Rs. 12,275 shall be refunded to the applicant forthwith, but in any case not later than three months from the date of receipt of a copy of this order. In default, the respondents are also liable to pay interest @ 9% per annum from the date of this order till such payment is made.
14. The O.A. is allowed as above with no order as to costs.