Central Administrative Tribunal - Chandigarh
Shiv Kumar vs Northern Railway on 30 May, 2024
1- O.A. No. 823/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/00823/2023
Pronounced on:30.05.2024
Reserved on: 21.05.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Shiv Kumar aged 60 year, GROUP C, resident of #55 St. 5, Ferozpur
Cantt, Ferozpur, Punjab 152001.
....Applicant
(By Advocate: Mr. Karnail Singh)
Versus
1. Union of India, through General Manager, Northern Railway, Baroda
House, New Delhi. 110001
2. Divisional Railway Manager, DRM office complex, Northern Railway,
Ferozpur (Punjab)
3. Senior DPO, DRM office complex, Northern Railway, Ferozpur (Pb)
... .Respondents
(By Advocate: Mr. K.K. Thakur)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
"(i) To quash & set aside the Impugned order dated 12.7.2023 (Annexure A- 1) to the extent of recovery of Rs. 1,61,570 / made from the retiral dues of the applicant.
(ii) To pass the orders to the respondents for making the refund of Rs. 1,61,570 / along with interest @ 12% p.a. on the recovered amount of Rs. 1,61,570 /- from retirement from the due date i.e. 1.8.2023 to date of realization."2- O.A. No. 823/2023
2. The factual matrix of the case is that the applicant has been working with the respondents since year 1989. He was due to retire on superannuation w.e.f. 31.07.2023 as Sr. Section Officer Accounts in pay band of Rs.9300-20200 with G.P. Rs.4800/- (Group C). The respondents vide letter dated 12.07.2023 re-fixed the pay of the applicant w.e.f. 01.07.2021 and reduced his basic pay from Rs. 98700 to Rs. 95800/-. His retiral benefits have been released in accordance with the order dated 12.07.2023 at the reduced rates. An amount of Rs.1,61,570/- has also been effected form his retiral dues.
3. The applicant contended that the impugned recovery is illegal in view of the law laid down in the case of State of Punjab & Others Vs. Rafiq Masih (White washer) & Others, 2015 (4) SCC 334 as the wrong fixation of pay is not the fault of the applicant. It has also been contended that the impugned recovery has been effected without observing the principles of natural justice.
4. The respondents filed written statement contesting the O.A. It has been stated that the while going through the service record of the applicant for calculating the retirement benefits, it came to notice that he is drawing more pay since 1.7.2021 because he has taken benefit of promotional increment twice. The applicant was already given benefit of 3 MACP as Sr. Section Officer w.e.f. 1.9.2008 at RCF in GP Rs.9300- 34800 with GP Rs.5400 (7 CPC Level 9), as per order dated 6.10.2009 (Annexure R-1). He himself requested for transfer to Ferozepur Division on 26.5.2015 as Junior Accounts Assistant with bottom seniority (Annexure R-2). He resumed duty on 27.5.2015 as Junior Accounts Assistant in Pay Rs.25510/- + GP Rs.2800. During this period his grade pay was reduced and pay protected. Again he got promotion as Sr. 3- O.A. No. 823/2023 Section Officer on 9.6.2015 in Rs.9300-34800 GP Rs.4800/-. As per fixation order dated 25.8.2021 (Annexure R-03), his Pay was fixed wrongly as he was given the benefit of promotional increment and option to change the increment date twice (PS No.7937), but as per rules, if a person who has already taken the promotional increment in same grade pay, he is not entitled for promotional increment in same grade pay again because he came to bottom seniority on own request and his pay is protected in terms of RBE No. 12/2020 dated 28.1.2020 ( Annexure R-
4). It has also been stated that the applicant was in charge of Pension Section and he was aware of the fact that he was drawing excess increment, which was recoverable. In support of the argument that the excess payment made owing to bonafide mistake by the Government, the recovery thereof can be made, reliance has been placed on the judgment in the case of Sunder Lal & Others Vs. State of Punjab, AIR 1970 PH 241, and judgment dated 29.07.2016 in C.A. No.3500/2006 titled High Court of Punjab and Haryana & Others Vs. Jagdev Singh.
5. The applicant has filed rejoinder reiterating his contentions raised in the O.A.
6. I have gone through the pleadings, perused the case law on the issue and considered the rival arguments of learned counsel for both sides.
7. The issue herein for consideration is as to whether the recovery from the retiral benefits of a group „C‟ employee for the excess amount paid to him due to wrong fixation attributable to the respondents is illegal?
4- O.A. No. 823/2023
8. The applicant worked as a Group „C‟ employee with the respondents department. He was due to superannuate w.e.f. 30.07.2023. Just a couple of days before his retirement i.e. on 12.07.2023, the respondents issued a corrigendum dated 12.07.2023 reducing his pay from Rs.98700/- to Rs.95800/- w.e.f. 01.07.2021 and ordered for recovery of excess payment made to the applicant.
9. It is the averment of the applicant that the respondents recovered an amount of Rs.1,61,570/- from the retiral benefits of the applicant. However, the impugned corrigendum does not speak about how much is the recovery and how has it been calculated. The impugned corrigendum, therefore, is not a speaking one whereby the respondent no. 2 ordered that recovery and pay and other allowances may be prepared and recovered. No recovery order specifying the details has been placed by the respondents to justify their action. Moreover, no show cause notice has been served on the applicant before effecting recovery from his retiral benefits. For this reason also, the impugned order is liable to be quashed.
10. Be that as it may, it is the admitted case of the parties that the excess payment made to the applicant was result of wrong fixation of pay by the respondents and the applicant has never mis-represented for it. Further, it is also not disputed that the applicant retired as a Group „C‟ employee of the respondents department and the impugned corrigendum, by way of which recovery was ordered, has been issued just a few days before his retirement. The recovery under such conditions has been held to be impermissible by the Hon‟ble Supreme Court in the case of Rafiq Masih (supra) wherein it has been held as under:-
5- O.A. No. 823/2023
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-
IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that 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."
11. After perusal of the extracted part of the judgment and the facts of the present case, it is held that the instant case is covered under the situations (i) and (ii), as enumerated by the Hon‟ble Supreme Court under which recovery is not permissible.
12. In view of the above, the impugned order/corrigendum dated 12.07.2023 qua the recovery portion is held to be illegal and therefore, quashed and set aside. Consequently, the respondents are directed to refund the amount recovered pursuant to the order dated 12.07.2023, to the applicant within a period of two months from the date of receipt 6- O.A. No. 823/2023 of a certified copy of this order. The Original Applicant stands allowed in the above terms. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟