Central Administrative Tribunal - Chandigarh
Mohan Singh vs M/O Railways on 20 December, 2024
1 (OA No. 063/1100/2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CIRCUIT BENCH AT SHIMLA
This 20th day of November, 2024
OA No. 063/1100/2018
HON'BLE SH. RAMESH SINGH THAKUR MEMBER (J)
HON'BLE MRS. ANJALI BHAWRA,MEMBER(A)
Mohan Singh son of Shri Devi Ram, aged about 60
years, r/o Village-Kothi Ropa, Tehsil-Sarkaghat,
District Mandi (H.P.) 175024.
...Applicant
(By Advocate : Sh. Rishav Sharma and Sh.
K.B. Sharma)
VERSUS
1. Union of India through General Manager,
Northern Railway, Baroda House, New
Delhi-110001.
2. Divisional Railway Manager, Northern
Railway, Ferozepur Division, Ferozepur-
152002.
3. Sr. Divisional Personnel Officer, Northern
Railway, Ferozepur Division, Ferozepur-
152002.
..............Respondents
(BY ADVOCATE: Sh. Sanjay Goyal, Sr. CGSC)
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 against the Notice dated 23.03.2018 (Annexure A-1) whereby the respondents have 2 (OA No. 063/1100/2018) refixed the pay of the applicant w.e.f. 29.01.1990 and reduced his pay w.e.f. 01.10.2004 from Rs. 4000 to Rs. 3725/- and also ordered recovery from retiral dues of the applicant who retired on 30.04.2018 without affording any opportunity of hearing to the applicant. This OA is further directed against the inaction of the respondents in not releasing the retiral dues of the applicant.
2. The applicants have sought the following relief:-
"8 (i) That the impugned notice (Annexure A-1) dated 23.03.2018 be quashed and set aside.
(ii) That it be declared that the applicant was rightly granted the benefit of 2nd ACP in the pay scale of Rs. 4000-6000 w.e.f. 06.06.2004 and 3rd MACP in the pay scale of Rs. 5200-
20200 plus grade pay of Rs. 2800 w.e.f. 22.02.2010 and his pay was accordingly rightly fixed by the respondents in the aforesaid pay scales and the action of the respondents reducing the pay of the applicant and affecting recovery from the applicant be declared illegal and arbitrary and accordingly the respondents be directed to restore the pay of the applicant and release his retiral dues (Gratuity. Pension, Commuted Value of Pension, CGEIS and Leave Encashment) on the basis of pay already fixed prior to issuance of Annexure A-1 alongwith interest @ 12% p.a.
(iii) That the action of the respondents in not counting the Leave Without Pay (LWP) period i.e. w.e.f. 29.01.1990 to 17.10.1995 or the purpose of ACP and MACP be declared illegal and arbitrary in view of the para 11 of MACP 3 (OA No. 063/1100/2018) Scheme dated10.06.2009 and para 54 of the clarification and accordingly the respondents be directed to release Leave Encashment of the applicant."
3. The pleaded case of the applicant herein is that the applicant joined as a Gateman (Group D) on 22.09.1979. The applicant was promoted as Coach Attendant in the pay scale of Rs. 800-1150 on ad hoc basis on 06.12.1989 and later on, on regular basis w.e.f. 29.01.1990. The applicant was reverted as Gateman in the year 1991 without granting him any opportunity of hearing. Aggrieved by this, the applicant approached this Tribunal by filing OA No. 1062/PB/1990 and vide order dated 26.12.1997, this Tribunal allowed the OA and declared that the applicant is entitled to regular promotion as Coach Attendant w.e.f. 29.01.1990 in the pay scale of Rs. 800-1150. This order of the Tribunal was further upheld by the Hon‟ble Punjab and Haryana High Court on 16.12.1998 in CWP No. 19015/1998. This order was implemented by the respondents and the applicant was granted promotion as Coach Attendant w.e.f. 29.01.1990 in the pay scale of 4 (OA No. 063/1100/2018) Rs. 800-1150. The pay scale of Rs. 800-1150 was revised to Rs. 2650-4000 w.e.f. 01.01.1996.
4. It is further averred by the applicant that on 12.09.2003, he was declared surplus and was re- employed as Helper in the pay scale of Rs. 2650- 4000 as is evident from his Service Book (Annexure A-3). By virtue of the ACP Scheme dated 01.10.1999 (Annexure A-3/A), the applicant was granted the benefit of 2 nd ACP w.e.f. 06.06.2004 in the pay scale of Rs. 3050- 4590 (Annexure A-4). The aforesaid pay scale was revised w.e.f. 01.01.2006 in the pay scale of Rs. 5200-20200 + Grade Pay of Rs. 1900. On the recommendations of 6th CPC, the respondents issued MACP Scheme dated 10.06.2009 (Annexure A-8). On completion of 30 years of service and by virtue of the MACP Scheme dated 10.06.2009, the applicant was granted the benefit of 3rd MACP in the pay scale of Rs. 5200- 20200 plus Grade Pay of Rs. 2800 w.e.f. 05.08.2010 as is evident from the relevant part of the Service Book.
5 (OA No. 063/1100/2018)
5. By virtue of the order passed by the Hon‟ble Delhi High Court in Writ Petition No. 566/2000 filed by All India Shramik Coach Attendants Association and others versus Union of India and others, the applicant was granted the pay scale of Rs. 950- 1500 w.e.f. 29.01.1990. The applicant was granted the benefit of 2nd ACP in the pay scale of Rs. 4000-6000 w.e.f.06.06.2004 and accordingly, his pay was re-fixed by the respondents in the aforesaid respective pay scales. The applicant was granted regular promotion as Technician Grade-I w.e.f.08.12.2014 in the pay scale of Rs. 5200-20200 plus Grade Pay of Rs. 2800 but the applicant was not granted any financial benefit on his promotion as Technician Grade I as he has already been granted the benefit of 3 rd MACP in the same Grade Pay. The applicant was further promoted as Master Craftsman on 31.08.2017 in the pay scale of Rs. 9300-34800 plus Grade Pay of Rs. 4200.
6. Vide notice dated 23.03.2018 (Annexure A-1), the respondents reduced/re-fixed the pay of the applicant w.e.f. 29.01.1990/01.10.2004 and 6 (OA No. 063/1100/2018) consequently recovery of excess payment has been made without issuing any show cause notice or giving an opportunity of hearing. The applicant retired from service on 30.04.2018, but was only released GPF amount and the other retiral dues are still pending. The basic pay of the applicant was Rs. 42300/- as on 30.08.2017, whereas his last pay drawn has been shown as Rs. 39,900/-. Thus, the respondents have reduced the pay of the applicant.
7. From the perusal of the notice dated 23.03.2018, it is revealed that the respondents have postponed the date of grant of 2 nd ACP and 3rd MACP on the ground that the applicant availed leave without pay. The applicant submits that para 11 of the MACP Scheme dated 19.05.2002 clearly mentions that the regular service shall include all period spent on deputation/foreign service, study leave and all other kind of leave duly sanctioned by the competent authorities. Thus, the action of the respondents in not counting the period of leave without pay of the applicant and postponing the date of grant of ACP 7 (OA No. 063/1100/2018) and MACP and consequently ordering recovery is illegal and arbitrary.
8. DoPT also issued clarification to ACP Scheme dated 09.08.1999. The case of the applicant is supported by para 54 therein where the action of the respondents passing the impugned order dated 23.03.2018 and excluding the service period w.e.f. 29.01.1990 to 17.10.1995 for the purpose of ACP and MACP is illegal and arbitrary.
9. The respondents have filed the written statement and contradicted the averments made in the OA. It is stated by the respondents that inadvertently, due to oversight, the applicant was granted third regular promotion under MACP when already applicant had availed first promotion in the year 1990, second promotion in the year 2008 and third promotion in the year 2009 and thus was not entitled to third promotion in MACP ON 05.08.2010 revised on 22.02.2010 (which is fourth promotion). The recovery which has been effected is legal and on account of fixation of wrong grade pay.
8 (OA No. 063/1100/2018)
10. The respondents further submit that there is no question of having reduced the grade pay on account of unauthorized absence without leave. Reduction has been made due to the third MACP granted to the applicant wrongly.
11. The applicant has also filed the rejoinder reiterating his stance taken in the Original Application.
12. We have heard the learned counsels for the parties and have carefully gone through the pleadings on record and also the case law relied upon by the parties. We see that the respondents at the time of retirement of the applicant changed the entire fixation of pay while excluding the period of EOL which was earlier counted for the purpose of grant of second ACP w.e.f. 06.06.2004. Thus, the applicant cannot be denied the benefit of third MACP granted retrospectively.
13. It is an admitted fact that the applicant retired on 30.04.2018 and effecting recovery from the applicant who is a Group C employee is against 9 (OA No. 063/1100/2018) the dictum passed by by the Hon‟ble Supreme Court of India in the case of State of Punjab Vs. Rafiq Masih (White Washer), 2015 (4) SCC
344.
14. In Sushil Kumar Singhal Vs. Pramukh Sachiv Irrigation Department & Ors. in Civil Appeal No. 5262 of 2008, 2014 (16) SCC 444 decided on 17. 04.2014, the Hon‟ble Supreme Court held as under:-
"10. For the aforestated reasons, we quash the impugned judgement delivered by the High Court and direct the respondents not to recovery any amount of salary which had been paid to the appellant in pursuance of some mistake committed in pay fixation in 1986. The amount of pension shall also not be reduced and the appellant shall be paid pension as fixed earlier at the time of his retirement. It is pertinent to note that the Government had framed such a policy under its G.O. dated 16th January, 2007 and therefore, the respondent authorities could not have taken a different view in the matter of re-fixing pension of the appellant."
15. In a latest judgement by the Apex Court in Thomas Daniel Vs. State of Kerala & Ors. in Civil Appeal No. 7115 of 2010 decided on 02.05.2022, 2022(2) S.C.T. 722, the Hon‟ble Supreme Court held that if excess amount was not paid on account of any misrepresentation or 10 (OA No. 063/1100/2018) fraud of the employee or if such excess payment was made by the employer by applying wrong principle for calculating pay/allowance or on the basis of particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.
16. Undoubtedly, the excess amount that has been paid to the applicant was not because of any misrepresentation or fraud on his part and the applicant does not seem to have any knowledge of the excess amount of salary being paid to him. The excess payment was made because of inaction, negligence and carelessness of the officials concerned in giving the applicant the benefit of third MACP for which the applicant cannot be held responsible. Moreover, the respondents cannot recover any amount of salary which had been paid to the applicants in pursuance of some mistake committed in pay fixation as has been held by the Apex Court in Sushil Kumar Singhal (supra). Applicant being Group „C‟ employee is fully covered by the Apex 11 (OA No. 063/1100/2018) Court judgement in Rafiq Masih (supra) and no recovery of excess amount paid to him can be made.
17. The learned counsel for the applicant also relied upon Jagdish Prasad Singh Vs. State of Bihar, 2024 AIR SC 3950 wherein the impugned action directing reduction of pay scale and recovery of the excess amount was held to be grossly arbitrary and illegal and also suffering from the vice of non-adherence to the principles of natural justice and hence, the same cannot be sustained.
18. The applicant also submits that the action of the respondents in not counting the leave without pay of the applicant for the purpose of ACP and MACP is against para 11 of the MACP Scheme dated 10.06.2009 wherein it has been clearly mentioned that the leave duly sanctioned by the competent authority is countable for the purpose of ACP and MACP etc.
19. The applicant also referred to Rule 47 of the Railway Service (Pension) Rules, 1993 (Annexure A-16), wherein it has been clearly mentioned that 12 (OA No. 063/1100/2018) after completion of 25 years of service or five years before retirement, the service of the individual is to be verified to determine the qualifying service and communicate the same to the individual after determining the same in form
15. In sub-para 3 of the aforesaid Rule, it has been mentioned that the verification done under sub-Rule 1 & 2 shall be treated as final and shall not be re-opened except when necessitated by subsequent change in the Rule and Order governing the condition under which the service qualifies for pension. In the instant case, the respondents did not comply with the aforesaid Rule and the applicant was never communicated about his service.
20. In view of the law discussed hereinabove, the present Original Application is allowed. The action of respondents in reducing the pay of the applicant and doing impugned recovery from the applicant is hereby quashed and set aside. The respondents are directed to restore the pay of the applicant and refund the amount so recovered to the applicants with interest @ GPF rate with 13 (OA No. 063/1100/2018) effect from the date of recovery till the actual date of payment. The applicant be also released his retiral dues forthwith.
21. However, there shall be no order so as to costs.
(ANJALI BHAWRA) (RAMESH SINGH THAKUR)
Member (A) Member (J)
ND*