Central Administrative Tribunal - Allahabad
Ram Dularey vs General Manager, N E Rly on 9 February, 2024
OA No. 330/1319 of 2019
(Reserved on 18.01.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Allahabad this, the 09th day of February, 2024
Original Application No. 330/1319 of 2019
HON'BLE MR. JUSTICE RAJIV JOSHI, MEMBER (J)
1. Ram Dularey (deceased), aged about 63 years, S/o late Nohar,
Resident of Village-Jungal Hakim No.2, Mohnapur, Post Office-
Padari Bazar, District- Gorakhpur, represented through LRs.
1.1 Rashmi Devi aged about 62 years, W/o late Ram Dularey, R/o
Village-Jungal Hakim No.2, Mohnapur, Post Office-Padari Bazar,
District- Gorakhpur
....Applicants
By Advocate: Shri A.D. Singh
VERSUS
1. Union of India through its General Manager, North Eastern
Railway, Gorakhpur.
2. Chief Administrative Officer (Construction), North Eastern
Railway Gorakhpur.
3. Senior Personnel Officer (Construction), North Eastern Railway,
Gorakhpur.
4. Finance Advisor and Chief Accounts Officer, North Eastern
Railway, Gorakhpur.
5. Deputy Chief Signal & Telecom Engineer (Construction), North
Eastern Railway Gorakhpur.
......Respondents
By Advocate: Shri Pramod Kumar Rai
Page 1 of 14
OA No. 330/1319 of 2019
ORDER
1. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs :-
"(i) "Direct the respondents to issue fresh amended PPO and fixed the pension of the applicant on the last Pay Band of Rs. 5200-20200 Grade pay 2400/- on the post of Mason-II instead of Pay Band of Rs.5200-20200 Grade Pay 2000/- Khalasi and accordingly pay the differences of arrear of pension and also make settlement of retiral benefits on the said pay and pay the differences of arrear of retiral benefits with 18% interest per annum to the applicant from the date of entitlement to the date of actual payment is being made to the applicant.
(ii) Direct the respondents to refund the recovered amount of Rs.2,24,071/- which was illegally recovered from the DCRG etc. with 18% interest per annum from the date of recovery to the date of actual payment is being made to the applicant;
(iii) Grant any other relief, as the applicant might be found entitled to, on the facts and circumstances of the case;
(iv) Allow the original application with cost in favour of the applicant for involving in the litigation."
2. The facts leading to this Original Application as apparent from the record that the original applicant, who died during the pendency of Original Application, was appointed on 06.01.1980 on the post of Mason-II on the pay-scale of Rs.5200-20,200/-+Grade Pay of Rs.2400/- and was superannuated from services on 31.03.2016 from the office of the Deputy Chief Signal & Telecom Engineer (Construction), North Eastern Railway Gorakhpur on the post of Helper Khalasi in Group 'D' category. Subsequently, a recovery amounting to Rs.2,24,071/- has been done from the pension of the original applicant, although his pension was fixed in the low pay band on the post of Page 2 of 14 OA No. 330/1319 of 2019 Khalasi in Group 'D' category i.e., Rs.5200-20,200+2000 Grade Pay instead of pay band of Mason-II i.e., Rs.5200-20,200+2400 Grade Pay.
3. On the other hand, counter-affidavit has been filed from the side of the respondents and resisted the claim of the applicant. In counter-affidavit, it is stated that the applicant was initially engaged as Casual Labour on 16.11.1980 in the employment of respondents and subsequently granted temporary status w.e.f. 01.01.1984. The applicant was further granted ad-hoc promotion to the post of Mason on 16.02.1985 in Group 'C' category and later on, his services were regularized in Group-D w.e.f. 31.12.1997 as per Railway Board Circular dated 03.09.1996 after qualifying the screening test.
4. It is further stated in the counter-affidavit that by virtue of the Circular of Railway Board being RBE No.101/2009 dated 10.06.2009 as clarified vide Circular dated 19.12.2011, financial upgradation under Modified Assured Carier Progression Scheme (hereinafter referred as 'MACP') are provided to the employees of Railway after completion of 10, 20 and 30 years of regular service in the grade respectively. The first MACP would be admissible on completion of 10 years of regular service from the date of joining of the post in the entry grade, 2nd MACP would be admissible on completion of 20 years of service from the date of initial appointment or 10 years from the date of 1st financial upgradation/promotion, whichever is earlier and 3rd MACP /financial upgradation would be admissible on completion of 30 years of service from the date of initial appointment or 10 years from the date of 2nd Financial upgradation /promotion, whichever is earlier. As per the extent rules, 50% services rendered by Page 3 of 14 OA No. 330/1319 of 2019 the incumbent from temporary statute to the date of regularization is to be counted for the purpose of providing financial upgradation under MACP Scheme and as such, in view of the aforesaid Circulars issued by the Railway Board, the applicant was not entitled for grant of 3rd financial upgradation under MACP Scheme as he had not completed 30 years of service even at the time of superannuation i.e., 31.03.2016. However, vide Office Memorandum dated 01.12.2009, the applicant was wrongly given 3rd Financial upgradation under MACP Scheme in the grade pay of Rs.2400 i.e., Level-4 although, he was only entitled for grade pay of Rs.2000/- i.e., Level-3 at that time. Accordingly, the applicant had availed the Grade Pay of Rs.2400/- (Level-4) till the date of his retirement. Since the applicant has granted financial upgradation under MACP erroneously in the grade pay of Rs.2400/-, it was decided by the Competent Authority to withdraw erroneous pay-scale/grade pay granted earlier and after re-fixation, over payment of Rs.2,11,121/- was deducted from the post retiral benefits of the applicant at the time of his retirement.
5. It is further stated that the applicant has wrongly stated in para 4.3 to the effect that a sum of Rs.2,24,071/- was recovered from the post retiral benefits of the applicant, although over payment of Rs.2,11,121/- was deducted from the retiral benefits of the applicant and a sum of Rs.34000/- was also deducted from the post retiral benefits of the applicant towards the medical facilities opted by the applicant under Retired Employees Liberalized Health Scheme and as such, there is no illegality or infirmity in the refixation of salary and Page 4 of 14 OA No. 330/1319 of 2019 recovery of excess payment made from the post retiral benefits of the applicant.
6. No rejoinder-affidavit has been filed by the applicant to the said counter-affidavit, filed by the respondents.
7. I have heard Shri A.D. Singh, learned counsel for the applicant and Shri Pramod kumar Rai, learned Sr. Panel Counsel for the respondents and perused the materials available on record.
8. Shri A.D. Singh, learned counsel for the applicant submitted that the applicant has not made any misrepresentation or committed any fraud in getting the alleged excess payment and even, no show cause notice or notice of any kind whatsoever have been issued to the applicant before recovering the alleged excess payments made to him. He further submitted that no opportunity whatsoever has been afforded to the applicant before recovering the alleged excess payment made to him from his retiral benefits. It is settled principles of law that if any order/action entails civil consequences, then in that situation, the authority concerned must have record the reasons in the order, which is missing in the instant case as no order has been passed by the Competent Respondent Authority.
9. In support of his claim, learned counsel has placed reliance the following case laws:-
(i) State of Punjab & Others etc. Vs. Rafiq Masih (White washer) etc. reported in 2014 Law Suit (SC) 1075.
(ii) Gopal Prasad Vs. State of UP & others decided by High Court at Allahabad in Writ-A no. 17985 of 2022 decided on 16.12.2022.Page 5 of 14
OA No. 330/1319 of 2019
(iii) Chandra Bhan Yadav Vs. Union of India & Others decided by Allahabad Bench of the Tribunal in OA no. 1674 of 2014 decided on 17.10.2017.
(iv) Hiralal Srivastava Vs. Union of India & Ors. decided by Allahabad Bench of the Tribunal in OA no. 980 of 2016 decided on 14.12.2017.
(v) Ganesh Prasad Vs. Union of India & Ors. decided by Patna Bench of the Tribunal in OA no. 607 of 2012 decided on 01.04.2015.
(vi) Ram Dayal Vishwakarma Vs. Union of India decided by a Co-ordinate Bench of this Tribunal in O.A. No.1318/2019 vide order dated 10.11.2023.
10. On the other hand, learned counsel appearing on behalf of the respondents submitted that the applicant was erroneously given the Grade pay of Rs. 2400/- which was subsequently withdrawn by the competent authority on coming to know the discrepancy while preparing the pension papers of the applicant in the year 2016 before his retirement (31.03.2016) and as such, the respondents are well within their domain to rectify their earlier mistake committed by them. In view of this matter, the action of the respondents cannot be said to be faulty one. Learned counsel for the respondents has placed reliance upon the following decisions:-
(i) MP Medical Officers Association Vs. State of MP & others decided by Hon'ble Supreme Court and other connected matters reported in 2022-0 AIR(SC) 4009.
(ii) Nar Singh Vs. Union of India & Ors. decided by this Tribunal in O.A. No.1317 of 2019 decided on 06.10.2023.
11. Having heard the rival submissions of learned counsel for both the parties and on perusal of records, the two issues were involved in the present case first as to whether the action of the respondent/ competent Authority was justified in recovering the alleged excess payment made to the applicant from his retiral dues and Page 6 of 14 OA No. 330/1319 of 2019 second question regarding fixation of pay-scale/pension, which was erroneously extended to the applicant in the grade pay of Rs.2400/- instead of Rs.2000/- and the competent Authority of the respondents is justified to withdraw the same benefit.
12. So far as the first question regarding the recovery of excess payment is concerned, it is apparent from the record that the applicant has ever made any misrepresentation or committed any fraud in getting the alleged excess payment and even, before recovering the alleged excess payments, no show cause notice or notice of any kind whatsoever have been given to the applicant. The Apex Court in the case of Rafiq Masih (supra) while dealing with such dispute had framed following guidelines:-
" 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, Page 7 of 14 OA No. 330/1319 of 2019 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."
13. Undisputedly, the case of the applicant is squarely covered with the judgment of Rafiq Masih (supra) and applicant was not responsible for fixation of incorrect pay scale and consequently for excess payment.
14. In the recent pronouncement the Hon'ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala and Others in Civil Appeal no. 7115 OF 2010 decided on 02.05.2022 has reiterated the aforesaid view as rendered in the case of Rafiq Masih (supra).
15. From the other cases cited by the learned counsel for the applicant, it is apparent that relying upon the case of Rafiq Masih (supra), the Tribunal /High Court had decided the said cases.
16. Further, the case cited by learned counsel for the respondents in support of their claim i.e., MP Medical Officers Association (supra), the Supreme Court has held as under:-
"It is not in dispute that the members of the appellant association, who were serving as Specialists, Dental Specialists and officers in the specialist's cadre got the benefits under the circular dated 23.05.2009. It was the Department/State, who issued the circular dated 23.05.2009 and paid the benefits under the circular dated 23.05.2009 to the members of the appellant association, which subsequently came to be withdrawn by the State in the year 2012. Therefore, as such, there was neither any misrepresentation on the part of the concerned employees - members of the appellant association nor can the mistake be attributed to them. The mistake, if any, can be said to be that of the Department/State, who issued the circular dated 23.05.2009 under which the members of the association were given certain benefits till the same was withdrawn in the year 2012. Therefore, in the peculiar facts and circumstances of the case, Page 8 of 14 OA No. 330/1319 of 2019 the State was not justified in ordering recovery of the excess amount paid along with the interest. It is true that stricto sensu, the decision of this Court in the case of State of Punjab 6 and others Vs. Rafiq Masih, (2015) 4 SCC 334 may not be applicable. However, at the same time, as observed hereinabove, and in the facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount paid with interest, more particularly, when it is reported that some of the doctors/dentists - members of the association have retired on attaining the age of superannuation and the recovery shall be from their pension/pensionary benefits. However, at the same time, their pay fixation and the pension shall have to be as per the order dated 26.08.2008."
17. From the perusal of the aforesaid judgment of the Supreme Court, it would reveal that while deciding the case of MP Medical Officers Association (supra), the Supreme Court has taken into account the ratio laid down in the case of Rafiq Masih(supra) by observing that the State was not justified in ordering the recovery of the excess amount paid with interest particularly when some of the members of the association have retired on attaining the age of superannuation and recovery shall be from their pension/pensionary benefits. The ratio laid down in the aforementioned case does not attract in the instant case firstly no opportunity whatsoever has been afforded to the applicant before recovering the alleged excess amount from his retiral benefits. In view of this matter, the judgment of Supreme Court in the case of MP Medical Officers Association (supra) is distinguishable and is not applicable in the instant case.
18. The another case relied upon by the learned counsel for the respondent i.e., Nar Singh Vs. UOI (supra) is identical to the present case, in which, the Original Application was partly allowed and the respondents were directed to refund the recovered amount, within Page 9 of 14 OA No. 330/1319 of 2019 a period of four months from the date of receipt of certified copy of that order. Upon failure, the respondent will also liable to pay the interest @ 06 % per annum from the date of that order till the date of actual payment.
19. So far as second question regarding fixation of pay in lower scale is concerned, it is specifically stated in para Nos.5 to 7 to the counter-affidavit while replying to para 4.1-4.3 of the Original Application, which was not admitted by the respondents. It is further stated in the said paragraphs of counter-affidavit that the applicant was initially engaged as casual labour on 16.11.1980 in the employment of respondents and subsequently, granted temporary status w.e.f. 01.01.1984. The applicant was further granted ad-hoc promotion to the post of Mason on 16.02.1985 in Group 'C' category and later on, his services were regularized in Group-D w.e.f. 31.12.1997 as per Railway Board Circular dated 03.09.1996 after qualifying the screening test. After implementation of MACP Scheme, the applicant was wrongly given 3rd Financial upgradation under MACP Scheme in the grade pay of Rs.2400 i.e., Level-4 although, he was only entitled for grade pay of Rs.2000/- i.e., Level-3 at that time vide Office Memorandum dated 01.12.2009. However, the applicant was not entitled for grant of 3rd financial upgradation under MACP Scheme as he had not completed 30 years of service even at the time of superannuation i.e., 31.03.2016. Accordingly, the applicant had availed the Grade Pay of Rs.2400/- (Level-4) till the date of his retirement. Since the applicant has granted financial upgradation under MACP erroneously in the grade pay of Rs.2400/-, it was decided by the Competent Authority to withdraw Page 10 of 14 OA No. 330/1319 of 2019 erroneous pay-scale/grade pay granted earlier and after re-fixation, over payment of Rs.2,11,121/- was deducted from the post retiral benefits of the applicant at the time of his retirement. Para 5-7 to the counter-affidavit are quoted hereinbelow for ready reference:-
5. That the contents of paragraph No.4.1 of the O.A. are not admitted in the form as stated. In reply thereto, it is submitted that the applicant was initially engage as casual labour on 16.11.1980 in the employment of the respondents and subsequently granted temporary status w.e.f. 01.01.1984.
The applicant was further granted ad-hoc promotion on the post of Mason on 16.02.1985 in Group-C category and later on in terms of the Railway Board Circular dated 03.09.1986 his services were regularized in Group-D w.e.f. 31.12.1997 after qualifying the screening test....
6.That the contents of paragraph No.4.2 of the O.A. are matter of record, therefore do not call for any reply. However, it is submitted that the applicant was erroneously given grade pay of Rs.2400/-, which was subsequently rectified after knowledge of the administration regarding the same at the time of preparation of paper regarding post retiral benefits of the applicant in the year of 2016 as he was going to retire on 31.03.2016.
7. That the contents of paragraph No.4.3 of the O.A. are not admitted, hence vehemently denied. In reply thereto, it is submitted that the applicant granted temporary status w.e.f. 01.01.1984 and his services were regularized w.e.f. 31.12.1997 in Group D in the pay band of Level-1. It is specifically stated before this Hon'ble Tribunal that by virtue of the circular of the Railway Board being RBE No.101/2009 dated 10.06.2009 as clarified vide Circular dated 19.12.2011 financial up-gradation under MACP are provided to the employee after completion of 10, 20 and 30 years regular service in the grade respectively. The 1st MACP would be admissible on completion of 10 years of regular service from the date of joining of the post in the entry grade, 2nd financial up-gradation would be admissible on completion of 20 years service from the date of initial appointment or 10 years from the date of 1st financial up-gradation/promotion, whichever is earlier and 3rd financial up-gradation would be admissible on completion of 30 years service from the date of initial appointment or 10 years from the date of 2nd financial up- gradation/promotion, whichever is earlier. It is further submitted that as per the extent rules 50 % services rendered by the incumbent from temporary status to the date of regularization is to be counted for the purpose of providing financial up-gradation under MACP Scheme. As such, in view Page 11 of 14 OA No. 330/1319 of 2019 of the provisions of circular of the Railway Board as referred to above the applicant was not entitled for grant of 3rd financial up-gradation under MACP Scheme as he had not completed 30 years of regular service even at the time of superannuation i.e., 31.03.2016. It is pertinent to mention here that vide office memorandum dated 01.12.2009, the applicant was wrongly given 3rd financial up-gradation under MACP Scheme in the grade of pay-scale of Rs.2400/- Level-4 while he was actually entitled for grade pay of Rs.2000 Level-3 at that time. Accordingly, he had availed the benefit of pay grade of Rs.2400/- Level-4 till the date of his retirement........
20. It also reflects from the records that the applicant had not filed any rejoinder-affidavit in order to deny or controvert the said facts and Shri A.D. Singh, learned counsel for the applicant made a statement that he does not propose to file any rejoinder. Therefore, aforesaid facts mentioned in the counter-affidavit cannot be disputed that the applicant was not entitled to get 3rd MACP benefits and as such, the respondent/concerned authority withdraws the aforesaid benefit. Similar issue fell for consideration before the Calcutta High Court in case of Shri Ghosh In vs. Unknown decided on 15th February, 2011 (W.P.S.T. 261 of 2009). In the aforesaid case, it has been said that if the benefit has been granted by mistake, then it can be withdrawn. The Calcutta High Court relied upon the some Judgment of Hon'ble Supreme Court and observes as under:-
"Now another question to be discussed about legality and validity of the order recalling the earlier decision whereby the authority admittedly committed a mistake. Whether the petitioner can apply the estoppel principle assailing the order of 2007, by which earlier order granting pay protection was cancelled on the reasoning that there was mistake to fix the pay scale of Debdas Santra. It is the basic principle in the administrative law and in the service jurisprudence that if any mistake is committed by the official and benefit due to mistake is withdrawn or recalled, no estoppel principle is applicable. Long back in the case Rootkin vs. Kent County Council reported in (1981) 1 WLR 1186 (CA) the Bench consisting of Page 12 of 14 OA No. 330/1319 of 2019 Lawton Eveleigh L.J.J. and Sir Stenley Rees considered that aspect wherein under Education Act, 1944, a benefit in the nature of conveyance charge was granted wrongly to a student by holding that he was residing three miles away from the institution. Law permitted to grant such grant to the students who are staying more than three miles away so that they ma attend the school from their respective residence. Subsequently, it was found that distance from the school to the residence of that student was wrongly calculated and it was within three miles. Hence, the grant of conveyance allowance was recalled. It was challenged on ground of estoppel and answer given by the Court that estoppel principle had no applicability and mistake could be cured at any time by the administration. The Apex Court also considered this aspect regarding applicability of estoppel principle if there is any mistake by the administration to pass any order and it is recalled thereafter in the case V. Gangaram vs. Regional Joint Director reported in (1997) 6 SCC 139. It was held thereto that mistaken decision based on some facts which proved later has not to be properly considered, is not irreversible. In that case under the Pension Act, 1871, pension was granted wrongly on the basis of pay scale as fixed wrongly and such mistake was rectified by recalling the order of pay fixation and excess amount was directed to be recovered from the pension. On challenge the person concerned failed before the Apex Court. In the case O.K. Udayasankaran Ex-Servicemen LIC Employees Association vs. Union of India reported in (1996) 8 SCC 271, the Court held that after fitment of pay, due to mistake it can be reduced and recalled. If any decision is passed by mistake, whether irreversible; that question was answered with reference to a notice of department proceeding in the case Maharashtra State Seed Corp[oration Ltd. Vs. Haridas reported in (2006) 3 SSC 690, wherein a show cause notice of a departmental proceeding was recalled and it was again reissued. It became the subject matter of challenge. The Apex Court answered that mistaken decision could be withdrawn and irreversible principle has no applicability.
Considering the aforesaid judgment of the Apex Court and the law in the field that when there is a mistake to pass any decision, if it is recalled, estoppel principle has not applicability and administration is permitted to withdraw it, we are of the view that the order of the Collector as passed earlier on 15th May 1998, granting pay protection in favour of the present petitioner by holding that Debdas Santra, a junior got higher pay scale, was rightly recalled on dealing with the factual foundation of the case whereby it was held that Debdas Santra was not eligible to enjoy the intermediate selection grade due to non-completion of ten years service in the rank and post of lower division clerk and as a consequence thereof the pay protection granted in favour of the writ petitioner was also recalled. The order applying aforesaid principle, cannot Page 13 of 14 OA No. 330/1319 of 2019 be said as illegal. Mistake was committed and that was withdrawn. Hence petitioner has no legal right."
21. Therefore, in the light of aforesaid case, relied by cases of Apex Court, it can be said that the department/respondent was having the authority to withdraw the benefit, which was wrongly/mistakenly granted to the applicant. There is no illegality or infirmity in retying the mistake.
22. In view of the above discussions, 2nd question is not in favour of the applicant as if the benefit has been granted by mistake, then it can be withdrawn and the respondents are empowered to rectify their mistake. Hence, the cases relied upon by the learned counsel for the applicant are partly distinguished on this point.
23. In the result, the Original Application is liable to be partly allowed and is accordingly partly allowed. The respondents are directed to refund the amount of Rs.2,11,121/- (Two Lakh, eleven thousand, one hundred twenty one only), if recovered from the deceased applicant, to the applicant No.1/1, within a period of four months from the date of receipt of certified copy of this order. Upon failure, the respondent will also liable to pay the interest @ 06 % per annum from the date of this order till the date of actual payment. No order as to costs.
24. All MAs pending in this O.A. also stand disposed off.
(Justice Rajiv Joshi) Member (J) Pm/-
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