Central Administrative Tribunal - Delhi
Shri Yogender Prasad Tiwari vs Union Of India Through on 6 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No. 673/2010 M.A. No. 494/2010 New Delhi, this the 6th day of May, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Shri Yogender Prasad Tiwari S/o Late Shri Baleswar Nath Tiwari R/o 282, Shahabad Mohamadpur, Near IGI Airport, New Delhi. .. Applicant (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India through The General Manager, Northern Railway, Gorakhpur. 2. The Divisional Railway Manager, North Eastern Railway, Izzatnagar. 3. The Sr. Divisional Financial Manager, DRMs Office, North Eastern Railway, Izzatnagar. .. Respondents (By Advocate : Shri Rajinder Khatter) ORDER (ORAL)
Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 28.7.2009 (page 10) and order dated 30.8.2006 (page 11) with a direction to the respondents to restore his pay with all consequential benefits including refund of recovered amount with interest. He has also challenged para (g) of the Railway Boards Circular dated 9.1.1998 and 14.1.2004.
2. It is submitted by the applicant that he was appointed as Group D employee in 1974 and given further promotions as Loco Pilot Goods, Loco Pilot Passenger, Loco Pilot Passenger Grade-I in the grade of Rs.6000-9800. It is further submitted by the applicant before 9.1.1998 there was cadre of Crew Controller and Power Controller which was abolished on 9.1.1998 wherein it was made clear that drivers drafted would be eligible for payment of allowances in lieu of kilometreage of 120 kilometers. From 1.1.2003 to 1.1.2006 applicant was drafted to work as CC. The applicant was again posted as CC on 23.5.2006 as he was declared medically unfit for driver on 15.4.2006 (page 15).
3. It is submitted by the applicant that vide order dated 30.8.2006 applicant was drafted as CC even though the said cadre had already been abolished. Applicant had sought voluntary retirement which was initially rejected on 24.12.2008 (page 27) but when applicant again applied for voluntary retirement, it was accepted vide order dated 14.9.2009 (page 12). Applicant is aggrieved by order dated 28.7.2009 whereby he was informed that since he was not fit for running duty no running allowance would be payable to him and in case running allowance had been given to him, the same may be deducted. On the basis of this order, respondents recovered an amount of Rs.1,50,000/- from the gratuity of the applicant and another Rs.56,756/- on account of difference of pay but neither any show cause notice was given to him nor any details as to how and why this amount was being deducted. He thus submitted that the recovery is bad in law. The same may accordingly be quashed and set aside.
4. Counsel for the applicant submitted that even before he was medically de-categorised, he was working as CC and was never drafted for driving duties yet he was being paid the running allowance as per the Railway Boards circular, therefore, there is no justification in denying the same to the applicant after he was medically de-categorised.
5. Respondents on the other hand have opposed this OA. They have stated applicant, Shri Y.P. Tiwari was appointed as unapproved Khalasi in the scale of Rs.196-232 on 27.5.1974 and later on was posted as approved engine cleaner w.e.f 1.5.1976. Thereafter the applicant got promoted as Fireman-IInd, Fireman-Ist and then as driver goods from 23.7.2001. While working as Goods Driver the applicant was drafted to work as CC w.e.f. 1.1.2003 vide order dated 20.12.2002. However, the lien of the applicant was in cadre of driver, as such the applicant while working as drafted crew controller got regular promotion as Loco Pilot (passenger) in grade of Rs.5500-9000 vide order dated 3.3.2003 and as Loco Pilot (passenger) Grade-I in scale of Rs.6000-9800 vide order dated 22.7.2005. In the year 2006, the applicant while working as drafted crew controller gave an application dated 19.1.2006 to DME (Power) North Eastern Railway, Izzatnagar requesting that doctor have suggested him that he should be utilized in day shift and not to be booked in trains DME (power) ordering for special medical examination of the applicant in the same application and as such the applicant was sent for special medical examination to Chief Medical Superintendent, Izzatnagar on 6.4.2006. The applicant was not found fit for train running as per Chief Medical Superintendent, Izzatnagar letter No.2006/Med/184/1/Spl dated 15.4.2006. Hence, he was absorbed permanently as drafted crew controller post on 30.8.2006 as per policy laid down in Railway Boards letter No.E(P&A)II-83/RS/10 dated 9.1.1998 and letter No.E(P&A) II-2002/RS-24 dated 14.1.2004. On 19.5.2008 applicant applied for voluntary retirement, but the request was not admitted by the competent authority due to shortage of staff hence the applicant was intimated vide letter dated 24.11.2008. The applicant again applied for voluntary retirement vide his application dated 2.3.2009 and the competent authority accepted voluntary retirement of the applicant which was communicated vide letter No.KA/PC/Y.P. Tiwari/Mech/III dated 14.9.2009 w.e.f. 15.9.2009.
6. They have further stated that Railway Board vide its order dated 9.1.1998 instructed that the cadre of Power/Crew Controller with distinct scales of pay will be abolished, and the cadre will be merged to the cadre of drivers, with further instructions that as and when the existing power/crew controller will vacate his post the same will be added to the post of drivers. Thus the averment made by the applicant that there is no cadre of Crew/Power Controller exists in Railway after 1998 is denied. However, it is clarified in the same circular in para (g) by the Railway Board that the medically de-categorised drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers and in their cases the tenure rule will not be applicable and further Railway Board vide Circular No.E(P&A)II-2002/RS-24 dated 14.1.2004 clarified that medically decategorised drivers drafted to perform the duties of Power/Crew Controllers, cease to be running staff and, therefore, are not eligible to any benefit specifically admissible to running staff. The Circular dated 9.1.1998 is self explanatory and further it has been clarified in the Railway Boards Circular No.E(P&A)II-2002/RS-24 dated 14.1.2004.
7. They have further stated that at the time of service verification, it was detected that applicant was wrongly being paid the running allowance treating him as running staff, which is wrong because as per Railway Boards letter dated 14.1.2004, medically decategorised staff drafted to work as CC were not eligible to any such benefit. Accordingly, his pay was instructed to be fixed treating him as appointed in stationary post. Accordingly, his pay was revised by order dated 28.7.2009. They have thus prayed that the OA may be dismissed.
8. We have heard both the counsel and perused the pleadings also.
9. Though respondents have tried to explain as to why the recovery was made from the applicant but admittedly, before making such recovery applicant was neither put on show cause notice nor any chance was given to him to give his representation. Law is well settled by Honble Supreme Court that even if respondents find some amount has been paid to the employee by mistake it cannot be recovered or refixed without putting the employee on notice. In the instant case since no notice was given to the applicant, we hold the recovery made from the applicant to be illegal. However, we give liberty to the respondents to give show cause notice to the applicant explaining why the amount needs to be recovered from him by giving break-up and giving him opportunity to respond to it within a reasonable period. It is only after considering his reply that respondents should pass final orders by giving reasons under intimation to the applicant. This exercise shall be completed within a period of 3 months from the date of receipt of a copy of this order.
10. OA stands disposed of with the above directions. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh