Central Administrative Tribunal - Mumbai
Smita Pramod Kand vs M/O Railways on 4 August, 2017
1 OA No.30/2011
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.30/2011.
Dated this Friday the 4th day of August, 2017.
CORAM: HON'BLE DR.MRUTYUNJAY SARANGI, MEMBER (A)
HON'BLE SHRI A.J. ROHEE, MEMBER (J)
Smt.Smita Pramod Kand
Office Superintendent Grade-I,
Office of Asstt. Material Manager (Diesel)
Central Railway, Ghorpadi,
Pune - 411 001.
R/at B-10, Aniket Co-op. Hsg. Society,
No.1, Swami Vivekanand Road,
Bibewadi, Pune 411 037. ... Applicant
(By Advocate Shri S.P. Saxena)
Versus
1. Through the General Manager,
Central Railway, CSTM,
Bombay - 01.
2. The Associate Accounts Officer
Central Railway, Pune Division,
Pune 01.
3. Sr. Divisional Finance Manager,
Pune Division, Central Railway,
Pune - 01.
4. Assistant Material Manager (Diesel)
Central Railway, Ghorpadi,
Pune - 411 001. ... Respondents
(By Advocate Shri V.D. Vadhavkar)
ORDER
Per : Dr. Mrutyunjay Sarangi, Member (A)
The Applicant was working as Office Superintendent Grade-I in the office of the
Assistant Material Manager (Diesel) at Central 2 OA No.30/2011 Railway, Pune at the time of filing the present OA.
2. The facts of the case, as they appear from the OA, are as follows;
i) The Applicant had joined as a Junior Clerk on 20.11.1979 selected through the Railway Service Commission. On 03.09.1983 she was promoted to the post of Senior Clerk and on 31.07.1989 to the post of Head Clerk. Her Pay was fixed at Rs.5450/- p.m. in the cadre of Head Clerk in the Pay Scale of Rs.5000-8000 consequent to the recommendation of the 5th Pay Commission. On 31.07.1997, the applicant was promoted to the post of Office Superintendent Grade-II. She claims that on her promotion she exercised her option to avail annual increment in the grade of Head Clerk due on 01.08.1997. Consequently her Pay was fixed at Rs.5890/- in the Pay Scale of Rs.5500-9000 in the post of Office Superintendent Grade-II. Subsequently she was promoted to the post of Office Superintendent Grade-I on 01.11.2003.
ii) On 11.12.2008 letter No.AC/PA/ESST/GEN/01 was sent from Respondent No.3 to Respondent No.4 stating that during regular inspection and verification of service register of the applicant 3 OA No.30/2011 an irregularity was detected in pay fixation and sum of Rs.29,467/- should be recovered from her due to the wrong fixation done at the time of the applicant's promotion to Office Superintendent Grade-II.
iii) Again on 30.09.2009, Respondent No.3 wrote to Respondent No.4 letter No.AC/PA/Esstt./B.S.P.K that on verification on the Drawn and Due Statement for the period July 1997 to December 2005 in respect of the applicant, overdrawal of Rs.33,067/- is due to be recovered out of which Rs.29,467/- was already recovered from the 6th Pay Commission arrears and the balance of Rs.3600/- is to be recovered from her Pay.
iv) Aggrieved by these two letters, the applicant has filed the present OA praying for the following reliefs;
"8(a) To allow the Original Application, 8 (b) To quash and set aside the impugned orders dated 11.12.08 and 30.09.09 issued by the Respondent No.4.
8 (c) To direct the respondents to refund the entire amount of Rs.33,067/- p.m. already recovered from the applicant with 10% interest.
8 (d) To further direct the respondents to restore the basic pay of the applicant, which she was drawing prior to the passing of the impugned orders.
8 (e) To pass any other orders which may be considered necessary in the facts and circumstances of 4 OA No.30/2011 the case.
8 (f) To award the cost of application."
3. The grounds on which the applicant has based her prayers are at para 5 of the OA and are reproduced herein-below;
"5.1. The Applicant's Basic Pay on promotion to Office Superintendent Grade-II was fixed by the respondents @Rs.5850/- p.m., as on 01.08.97 correctly by applying the provisions of F.R.22(1)(a)(i) since she had submitted an option to have her pay fixed after the accrual of her annual increment which was due in the feeder grade.
5.2 The Applicant was given promotion to the post of Office Superintend Gr-II, w.e.f. 31.07.97 and she took charge and responsibilities of the said promotional post from 31.07.97 itself.
5.3 The Applicant's pay when fixed on 01.08.97 on her promotion to Office Superintendent Grade-I, was also checked and approved by the Finance Department of the respondents and hence it is too late for the respondents to say that the applicant's pay was wrongly fixed on 01.08.1997.
5.4 Based on the pay fixed as on 01.08.97, the applicant was given annual increments every year till the impugned letters were issued by the respondents.
5.5. The Applicant on her part has proved that, she had given her option to fix her pay w.e.f. 01.08.97 (and not from 31.08.97) as her increment in the lower post was due on 01.08.97. The mere fact that, the original option copy is not traceable by the respondents, the action of the Respondent No.4 in disbelieving it despite production of xerox copy of the same by the Respondent No.5 to No.4, is not justified. The recovery of alleged over-payment to the applicant can't be now made after a long period of about 12-13 years since July, 1997.
5.6. The Applicant has never misrepresented her case for pay fixation on her promotion from Head Clerk to Office Supdt. Gr-II, w.e.f. 30.07.97, and the 5 OA No.30/2011 pay fixed by the respondents was also approved by the concerned finance authorities. Hence, no fault or misrepresentation can be attributed to the applicant.
5.7. The Applicant is suffering loss in her pay and allowances every month since her basic pay is arbitrarily and illegally reduced retrospectively from 31.07.1997.
5.8. The Respondents were empowered to make the entire recovery from the applicant's arrears of pay and allowances which became payable to her due to revision of her pay scale w.e.f. 01.01.2006.
5.9. The action of the respondents is arbitrary and illegal, besides being bad in law."
4. The Respondents in their reply filed on 22.07.2011 have strongly defended their action in ordering the recovery of the amount. It is their contention that the applicant was dealing with Establishment matters pertaining to the staff including herself in the office of the Assistant Controller of Stores (Diesel), Pune. On her promotion to the post of Office Superintendent Grade-II, she had not given any option for fixation of Pay after availing the annual increment in the lower grade of Head Clerk. Although she got promoted on 25.07.1997, since she was dealing with the Establishment matters, she herself entered the date of her promotional pay fixation as 01.07.1997 before she got her promotion. Her Pay was fixed at Rs.5300/- on 01.01.1996 as per the 5th Pay Commission. Her 6 OA No.30/2011 annual increment was due on 01.07.1997 and she herself has drawn the annual increments on 1 st July in all subsequent years which is clear from the entry in the service register at page 32 and 32 A. There is no entry about her pay fixation on promotion with option nor any option form is available in any office record. Her promotion date was 25.07.1997 but the promotional pay was drawn from 01.07.1997, 24 days before the promotion order. She drew all annual increments on July 97, 98 onwards so there is no basis for opting for pay fixation as on 01.08.1997. She had also not furnished any option form although she was asked to produce it for scrutiny vide letter No.AC/PA/ESTT/Genl/01 dated 01.07.2009 issued by the Senior Divisional Finance Manager, Pune (Respondent No.3). The original option form was never produced even till the filing of the OA. Due to the wrong pay fixation, the recovery has been ordered. There is a xerox copy of the option form annexed as Exh. R-3 which has been prepared much after the due date. Even on 31.12.2008 there is a file noting asking the applicant to produce the option exercised by her. The original option form is not available in the service records. Hence the recovery has been 7 OA No.30/2011 correctly ordered and the OA is liable to be dismissed.
5. In the Rejoinder filed by the Applicant on 27.02.2012, she has reiterated that she was promoted to the post of Office Superintendent Grade-II w.e.f. 31.07.1997 in the Pay Scale of Rs.5500-175-9000. Her Pay on 31.07.1997 was Rs.5450/- and since she had given her option to avail the increment before pay fixation Rs.150 was added to Rs.5450/- making it Rs.5600/-. She also got one increment of Rs.150/- as a part of the promotion making it Rs.5750/- and the corresponding pay in the scale of Rs.5500-175- 9000 was Rs.5850/- which was fixed on 01.09.1997. Hence the pay fixation was correct and the subsequent revision is erroneous. She has also submitted that the fixation of pay of the applicant was approved by the concerned Accounts officer and therefore there was no error in the pay fixation.
6. The Respondents filed reply to the rejoinder on 07.08.2013 in which they have reiterated that the applicant had accepted her promotion and fixation of pay without exercising any option in the post of Office Superintendent Grade-II in the scale of Rs.5500-9000. The 8 OA No.30/2011 Respondents have pointed out to the contention of the applicant that her date of further annual increment is from 01.09.1997 whereas her promotional pay was fixed in the post of Office Superintendent Grade-II w.e.f. July, 1997. Page 32 & 32A of the service register shows that she has drawn her increment on 1st July of every year. The irregularity was detected in the Accounts inspection in 2007 and corrective steps have been taken to recover the excess amount paid to the applicant.
7. On 18.03.2015 the respondents were directed by this Tribunal to file the order of pay fixation consequent to the promotion of the applicant in 1997 and any other relevant documents including the calculation sheet and the service register. The Respondents filed a statement on 11.06.2015 enclosing the letter No.PA/STR/D/E/SPK dated 06.10.2008 showing the service register verification and the wrong fixation of pay.
8. The Respondents also filed an additional reply on 04.09.2015 giving the details of pay drawn by the applicant from time to time. As per this statement, the applicant has not exercised any option for pay fixation on promotion as 9 OA No.30/2011 Office Superintendent Grade-II vide office order No.73/97 dt. 25.07.1997.
9. The matter was finally heard on 25.07.2017 and was reserved for orders. During the arguments, the learned counsel for the applicant cited the judgments of the Hon'ble Supreme Court in Shyam Babu Verma and Ors. Vs. Union of India & Ors., (1994) 2 SCC 521 and Sahib Ram Vs. State of Haryana & Ors, 1995 Supp(1) SCC 18 to argue that when a higher pay is erroneously given to an employee for no fault of hers, it will be just and proper not to recover any excess amount already paid to her. In Bhagwan Shukla s/o Sarabjit Shukla Vs. Union of India & Ors., (1994) 6 SCC 154 the Hon'ble Apex Court held that when order of reduction of pay is passed without affording opportunity to the employee, it is violative of the principles of natural justice. The Hon'ble Supreme Court in State of Punjab & Ors. Vs. Rafiq Masih (Whitewasher), (2014) 8 SCC 883 and State of Punjab & Ors., Vs. Rafiq Masih (White Washer) etc., Civil Appeal No.11527/2014 etc. had laid down the principle that recoveries by the employers, would be impermissible in law from employees belonging to Class-III and Class-IV service and when the excess payment has been made for a period in excess of five years, before the 10 OA No.30/2011 order of recovery is issued. Learned counsel has also argued that as per the order of the Hon'ble Supreme Court in Rafiq Masih (supra) recovery will be impermissible, when recovery if made from 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. Learned counsel for the applicant has also cited the judgment of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr., 2005 SCC (L&S) 246 to argue that the law laid down by the Supreme Court in a decision delivered by a Bench of largest strength is binding on any subsequent Bench of lesser or coequal strength.
10. Learned counsel for the respondents, on the other hand, has relied upon the judgment of the Hon'ble Sureme Court in High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh, Civil Appeal No.3500/2006 in which it was held that recovery is permissible in a case where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The Hon'ble Supreme Court in O.K. Udayasankaran & Ors. Vs. 11 OA No.30/2011 Union of India & Ors., Civil Appeal No.5255/1996 decided on 27.03.1996 has also held that the authorities are within their right to reduce the pay on the basis of correct fitment when pay has been fixed wrongly on the basis of incorrect fitment. In Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors., 2012 (5) SLR 607 (S.C.) decided on 17.08.2012 the Hon'ble Apex Court had laid down the principle that payment made due to wrong application or irregularity can always be recovered, except in few exceptional circumstances. In U.T. Chandigarh & Ors. Vs. Gurcharan Singh & Anr., Civil Appeal No.9873/2013 the Hon'ble Supreme Court had ruled that mistake in pay fixation can always be corrected and if any amount had been paid due to mistake, the mistake must be rectified and the amount so paid in pursuance of the mistake must be recovered.
11. We have heard the learned counsels from both the sides and perused the documents submitted by them. The limited issue involved in the present OA is whether the applicant is entitled to the Pay of Rs.5850/- fixed at the time of her promotion to the post of Office Superintendent Grade-II w.e.f. 25.07.1997 and whether the recovery of the excess amount paid to 12 OA No.30/2011 her is justified. We had directed the respondents to produce the original Service Book of the applicant. We have verified the entries in the Service Book. The entry relating to the promotion of the applicant to Office Superintendent Grade-II reads as follows:
"Pay increased from Rs.1640/- to Rs.1680/- in Gr. 1400-2300(RPS) w.e.f. 01.08.96. Pay increased from Rs.1680/- to Rs.1720/- in Gr. 1400-2300 (RPS) w.e.f. 01.08.1997. Promoted as OS II vide O.O No.78/97. Pay fixed at Rs.1800/- in Gr. 1600-2660 (RPS) w.e.f. 01.07.97"
12. The entry in the Service Book has been authenticated by the Assistant Controller of Stores (Diesel), Central Railway, Pune. However, it is quite clear from the last line of the entry that a correction has been made in the date. It is obvious to the naked eye that 01.08.1997 has been corrected as 01.07.1997. It is not known whether the correction has been made before or after the authentication by the Assistant Controller of Stores. It is pertinent to remember that the applicant herself was the in- charge of Establishment Section and she was maintaining her own Service Register. From the above entry as well as the previous entry in the Service Register, it is clear that the applicant had been getting her increment on the 1st August 13 OA No.30/2011 of every year. Her pay was increased to Rs.1560- 1600 w.e.f. 01.08.1994, from Rs.1600/- to Rs.1640/- w.e.f. 01.08.1995, from Rs.1640/- to Rs.1680/- w.e.f. 01.08.1996 and Rs.1680/- to Rs.1720/- w.e.f. 01.08.1997. She got her promotion vide office order No.73/97 w.e.f. 25.07.1997 which we have verified in original from her Service Book. That being so, her pay cannot be re-fixed at Rs.1800 w.e.f. 01.07.1997. It is quite obvious that the entry has been manipulated to 01.07.1997 to gain undue advantage of a raise in the pay consequent to her promotion.
13. Although the applicant has produced a xerox copy of her option claiming that she exercised her option on promotion, no such option is available in the Service Book. Even as late as December 2008, the applicant was asked to produce the option copy by her office. A letter dated 01.07.2009 shows that the ADFM, Pune had written to the AMM(D), Pune for getting the original option which must be available in her personal file. However, there is nothing in the Service Register to show that the applicant had exercised her option at the time of her promotion. The fact that the issue of original 14 OA No.30/2011 option has been raised again and again and the option form is not available in the original record is significant. Coupled with the fact that the date of her increment has been changed to 01.07.1997, convinces us that the revision of the pay by the respondents fixed erroneously earlier is a correct course of action and needs no interference by us. The respondents have submitted a table as Exhibit R-9 attached to the additional reply dated 04.09.2015. Table shows that the applicant's pay was Rs.1680/- on 01.08.1996 and Rs.1720/- as on 01.08.1997 as per the 4th Pay Commission and her Pay was Rs.5675/- as on 25.07.1997. Her next increment was given on 01.07.1998 and her pay was correctly fixed at Rs.5850/-. Therefore, going by the facts of the case and the records in the OA as well as the original Service Book submitted by the respondents, we find that the action by the respondents is correct and brooks no interference by us.
14. The Applicant has relied upon the judgments in Shyam Babu Verma and Ors. (supra), Sahib Ram Vs. State of Haryana & Ors (supra) and State of Punjab & Ors. Vs. Rafiq Masih (Whitewasher) (supra) to support her case that no recovery should be made from her pay. 15 OA No.30/2011 The Respondents on the other hand have relied on High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh (supra), O.K. Udayasankaran (supra), Chandi Prasad Uniyal (supra) and U.T. Chandigarh & Ors. Vs. Gurcharan Singh (supra). We have carefully gone through the case law. In the present case, since the applicant herself was maintaining her own Service Book and the file relating to her pay fixation, it cannot be said that she is not at fault in her wrong pay fixation. Therefore she will not be covered under the exemption stipulated in the Rafiq Masih' case. She has drawn the excess pay by a wrong fixation of pay and, therefore, she is liable to refund all the amount illegally drawn. The respondents are justified in ordering recovery of the excess amount wrongly paid to her.
15. In view of the above, the OA is dismissed as devoid of merit. No order as to costs.
(A.J. Rohee) (Dr. Mrutyunjay Sarangi) Member (J) Member (A) dm.