Central Administrative Tribunal - Bangalore
S Padmavathy vs South Western Railway on 5 January, 2023
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OA.No.170/594/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00594/2021
DATED THIS THE 05TH DAY OF JANUARY, 2023
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Mrs. S. Padmavathy,
W/o Shri A.G. Parthasarathy,
Aged 55 years,
Rtd. Reservation Supervisor,
S.W. Railway, Bengaluru. ..Applicant.
(By Advocate Shri K. Shivakumar)
Vs.
1. Union of India
Rep. by General Manager,
South Western Railway,
Hubli-580020.
2. Senior Divisional Personnel Officer,
South Western Railway,
Bengaluru-560023. ....Respondents
(By Shri N. Amaresh, Advocate for Railways)
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief: 2
OA.No.170/594/2021/CAT/Bangalore Bench
a) To quash the letter Nos. B/P.500/PA/2020/SBC dated 15.12.2020 (Annexure A-3), and B/P.500/PA/2020/SBC dated 04.10.2021 (Annexure A-4) vide which her representation against recovery of overpayment in settlement has been rejected.
b) To direct the respondents to refund the recovered amount of Rs.1,27,501/- forthwith, with 18% interest as the recovery is against the orders of the Hon'ble Supreme Court and the Orders of the Railway Board.
c) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.
2. The facts of the case as pleaded by the applicant in her pleadings, are as follows:
a) The applicant was working as Reservation Supervisor at Malleswaram in Bengaluru Division of South Western Railway. She voluntarily retired from service on 02.07.2017. Her basic pay which was Rs.62,200 as on 01.07.2017 was reduced to Rs.60,400 on 27.07.2017.
b) On the date of settlement i.e on 31.10.2017, her settlement dues were arranged duly taking the basic pay as Rs.60,400 instead of Rs. 62,200.
As a result, the applicant was paid with less settlement benefits and reduced pension. The pay drawn from 01.10.96 onwards has also been revised on 27.07.2017 without any notice or giving an opportunity to the applicant to protest under the law of natural justice. Her settlement 3 OA.No.170/594/2021/CAT/Bangalore Bench dues were paid on 31.10.2017, along with the memorandum dated 27.07.2017 revising the pay of the applicant downwards. An amount of Rs.1,27,501/- has been recovered from the DCRG payable to her towards over payment of the pay and allowances.
c) The applicant made a representation on 27.11.2017 with many repeated representations at regular intervals seeking for cancellation of the pay fixation memorandum and refund of the withheld amount. The applicant availed the chance of representing to the Pension Adalat also held on 15.12.2020. The respondents have turned down the request of the applicant by justifying that the over payment recovered was in order.
d) The applicant made another representation on 29.07.2021citing the orders of the Railway Board in RBE 72/2016 which was based on the decision of the Hon'ble Apex Court in White washer case. The respondents replied that "This over payment is not account of wrong pay fixation etc., RBE 72/2016 is not attracted in this case".
e) The Hon'ble Apex Court vide their judgment in State of Punjab & Others vs. Rafiq Masih (White Washer), 2012, (White Washer case) has clearly stated that the recovery from retired employees or employees who are due to retire within one year of the order of recovery and 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, is impermissible in law.
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OA.No.170/594/2021/CAT/Bangalore Bench
3. The respondents have filed their written statement wherein they averred as follows:
a) The applicant Smt. S. Padmavathy, Reservation Supervisor/MWM voluntarily retired from service on 02.7.2017. At the time of retirement, the Service Register and Leave Chart of the retiring employee has to be reviewed from the date of appointment till the cessation date. Hence, in the instant case also, Service Register and Leave Chart of the applicant was reviewed and her pay has been regulated accordingly, duly taking into account the period of absence from duty and also leave without pay (in short LWOP) during her service.
b) On review of the applicant's Leave Chart maintained in the office, it was noticed that she was on Maternity Leave from 11.12.1999 to 23.04.2000 and further continued on sanctioned LWOP from 24.04.2000 to 04.03.2001 (313 days). Since there was no entry of Medical Certificate Number and date covering the leave period in continuation of Maternity Leave certified by the Railway Medical authorities, the period was treated as LWOP and the same was not considered for purpose of counting of qualifying service and for the purpose of grant of increment as per RBE 242/2001. DOPT has also clarified that the period of EOL taken without Medical Certificate in continuation of Maternity Leave would not count for qualifying service and for purpose of grant of increment.5
OA.No.170/594/2021/CAT/Bangalore Bench
c) The respondents further submitted that, while perusing the Service Record, the applicant was drawing a basic pay of Rs. 5125/- as on 01.10.1999 i.e., before availing Maternity Leave. On resumption of duty by the applicant on 05.03.2001 after availing Maternity Leave and LWOP of 313 days, she was promoted as ECRC-I in scale Rs. 5000- 8000 and her basic pay was fixed on proforma basis @ Rs. 5450 duly adding Annual Increment for the year 01.12.2000 for which she is not eligible as per RBE No. 242/2001. Hence, her pay was rectified and re- fixed at Rs. 60,400/- vide Memorandum dated 27.07.2017 (A1). The excess pay and allowances paid to her amounting to Rs.1,27,501/- has been recovered from the DCRG payable to her, accordingly.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. During the course of arguments, learned counsel for the applicant stated that she is restricting her prayer to recovery of the amount of Rs. 1,27,501/- with interest and she is not challenging the re-fixation of pay and pensionary benefits to the applicant, consequent to re-fixation of her pay, which has been re-fixed to Rs.60,400 from Rs. 62,200/-.
6. The applicant has now prayed for refund of the recovered amount of Rs.
1,27,501/- along with 18% interest. The pleadings indicate that this recovery became due subsequent to her pay refixation in the year 2000 onwards. This was on account of withdrawal of increment, allegedly wrongly granted to the applicant in the year 2000, on account of availing LWOP for 313 days. 6
OA.No.170/594/2021/CAT/Bangalore Bench She was not entitled for this annual increment on 01.1.2000 being on LWOP for 313 days, as per RBE No. 242/2001.
7. This recovery has been made after verification of the Service Record of the applicant prior to her retirement in the year 2017. The applicant cannot be held responsible for this grant of increment which was not due to her under the existing rules. It was the mistake on the part of the respondents, who apparently wrongly granted the annual increment in the year 2000.
8. In State of Punjab & Others vs. Rafiq Masih (White Washer), 2012, the Honourable Apex Court had observed as follows:
"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.
8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and 7 OA.No.170/594/2021/CAT/Bangalore Bench arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover....
....
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.
9. In the present case, the applicant is a Group C employee and her case is covered under provisions (i), (ii) and (iii) specified above in the White Washer case. Out of a total amount of DCRG payable to her of Rs. 7,45,185/- , an amount of Rs. 1,27,501/- has been recovered which can be termed as harsh or iniquitous.
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OA.No.170/594/2021/CAT/Bangalore Bench
10. Keeping the above points, the case is clearly covered by the judgment of the Hon'ble Apex Court in State of Punjab & Others vs. Rafiq Masih (White Washer), 2012
11. The OA is accordingly partly allowed and the Annexures A-3 and A-4 dated 15.12.2020 and 04.10.2021 respectively, vide which the recovery of Rs. 1,27,501/- has been made from the DCRG due to the applicant, is set aside. The respondents are directed to refund the recovered amount of Rs. 1,27,501/- without any interest, in an expedite manner, in any event, not later than six weeks from the date of the receipt of the certified copy of this order.
12. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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