Central Administrative Tribunal - Allahabad
Ram Surat vs General Manager, N E Rly on 28 August, 2024
RESERVED ON 21.8.2024.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 28th day of August 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 330/ 00224/2019
1. Ram Surat S/o Late Gophai aged about 69 years R/o Gram Bhohia,
Post Kanapar (Pepeganj), Gorakhpur.
1/1 Jileba Devi W/o Late Ram Surat.
½ Raj Kumar son of Late Ram Surat
1/3 Diran son of Late Ram Surat
All R/o Village Bhardiya Post Kenapur District Gorakhpur.
2. Wasi Ahmad S/o Late Babheer Ahmad aged about 70 years,
Muhalla Yanees Nagar, Gyan Puram, Padari Bazar road,
Gorakhpur.
3. Ram Avadh S/o Late Bansu, aged about 70 years, R/o Gram Jogi
Chak, Post Tighara (Pepeganj), Gorakhpur.
4. Samiullah S/o Late Sulamaan, aged about 70 years, R/o Asuran
Pokhra Bheri Ghat House No. 689A, Post Basharatpur, Gorakhpur.
5. Kedar S/o Rampatni, Gram raagpaar, Post Tanaatanpur, Thana
Khorabaar Gorakhpur.
5/1 Kewla Devi W/o Kedar
5/2 Shri Nath S/o Kedar.
6. Samiullah S/o Bujharat Gram Karamhawa, Thana Campierganj,
Post Rawatganj, Gorakhpur.
7. Rama Nand Yadav S/o Late Ram Rewal Yadav aged about 70
years, R/o Village, Post Kakkarakhar, Thana Balipar, District
Gorakhpur.
...........Applicant
By Adv: Ms. Akansha Gaur
VERSUS
1. Union of India through General Manager, North Eastern Railway,
Gorakhpur.
2. Chief Workshop Manager Signal Workshop, North Eastern
Railway, Gorakhpur Cantt.
3. Divisional Railway Manager, North Eastern Railway, Lucknow.
4. Senior Divisional Personnel Officer, North Eastern Railway,
Lucknow.
MANISH KUMAR
SRIVASTAVA
2
5. Divisonal Personnel officer, Signal Workshop Gorakhpur Cantt.
...............Respondents
By Adv: Shri M.K. Sharma
ORDER
Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) direct the respondents to release the death cum retirement gratuity, leave encashment, communication value of pension with interest @ 12% per annum including the arrears on the basis of VIIth Pay Commission as paid to the similar situated employees.
(ii) Direct the respondents to pay the amount already recovered from the applicants as was done to case of similarly situated employee.
(iii) Direct the respondents to fix the pay of applicants adding 30% running allowance and well as protect the pay of the applicant according to the post on which they were appointed and working before they were declared surplus.
(iv) issue any other suitable writ, order or direction which their Hon'ble Court may deem fit and proper under the circumstances of the case.
(v) Award cost to the applicants from the respondents to issue on other suitable order or direction as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(vi) Award the costs of the application in favour of the applicants".
2. The brief facts of the case are that applicants are aggrieved by non payment of D.C.R.G. and pension as even after the retirement of the applicants on 31.1.2009 the aforesaid amount has not been paid to the applicants. Applicants entered in service as Engineer- Cleaner on 5.5.1968 and during passage of time applicants promoted to the post of Senior Fireman- II in the pay scale of Rs. 2750-4400. In the year of 1994-95 Loco-shed of Lucknow Division closed and as such applicants were shifted to Diesel Lobby Gorakhpur. As per version of the respondents, applicants along with other similarly situated colleague were not eligible to adjust in Diesel Shed according to eligibility criteria and as such, all the Fireman-II up to the pay scale of Rs. 3050-4590 declared surplus and all they were absorbed in the signal-Workshop Gorakhpur against available vacancy ignoring creation of supernumerary MANISH KUMAR SRIVASTAVA 3 post with the stipulation that surplus Fireman will be given the benefit of 305 running allowance in their existing pay scale. Vide office order dated 25/27.4.2000, all the surplus fireman were absorbed in the pay scale of Rs. 2500-3200 and pay protection had been given. Thus pay of the applicants was protected adding 30% running allowance and as such salary of applicants were fixed 5967/-. Being found suitable in the trade test and Viva-voce test applicants were given the grade of Technical Grade-III in the pay scale of Rs. 3050- 4590. They were considered next promotion in the cadre of Technician Grade-II ie. General Fitter in the grade of (4000-6000). A trade test was conducted and applicants were declared successful as per result. In pursuant of result, applicants were promoted in the cadre of Technician Grade-Il in the pay scale of Rs. 4000-6000 and they were posted as Technician Grade-II in Barrier Gate with immediate effect. After retirement normally employee is paid their D.C.R.G. within a reasonable period and pension is given from next month but in the instant case applicants were neither paid their D.C.R.G. nor their pension was started and as such after running from pillar to post applicants made joint representation to the respondent no. 2 seeking relief for the payment of retiral benefits and fixation of regular pension but same has not been decided as yet. Aggrieved against inaction of respondents, applicant No.5 has filed OA No. 1280/2010 before the Tribunal which was decided on 21.07.2011, simultaneously, applicant NO. 1, 2, 3 and 6 has filed OA No. 167/2009, which was decided on 3rd October 2012 but the direction of the Tribunal has not been implemented by the respondents, thus, applicant has filed present OA.
3. Per contra, the respondents have resisted the claim of the applicant by filing a detailed Counter Affidavit wherein they have stated that due to closer of Steam and Loco Shed, employee of that units were declared surplus and accordingly applicants were also declared surplus along with other staff. They were redeployed in Signal Workshop GKC., in accordance with Railway Board's letter dated 21.04.1989. During the course of settlement of the applicants in the year 2012, it was noticed that the applicants fixation at the time of his redeployment in Signal Workshop, Gorakhpur Cantt. was wrongly fixed in contravention of MANISH KUMAR SRIVASTAVA 4 Railway Board instructions. It is pertinent to mention that staff belonging to running staff get 30% running allowance of their basic pay accordingly the applicant was getting 30% running allowance at the time of being declared surplus. As per Railway Board instructions the staff declared surplus were redeployed in other units would not have get benefit of 30% running allowance. It is further stated that as applicants were redeployed in Signal Workshop, Gorakhpur Cantt. they should not have got benefit of 30% running allowance at the time of fixation in new units. However, due to administrative error the applicants' pay have been fixed in new unit by adding 30% running allowance. At the time of superannuation, this wrongfull pay fixation came in the notice of administration. Accordingly their pay was re-fixed and revised accordingly. It was found that Rs. 2,23,320/- have already been excess paid to the applicants, therefore, it was decided to deduct the excess overpayment Rs. 2,23,320/- from his retirement gratuity and finally admissible payment to the applicants was paid to him in September, 2013 and PPO was issued on 17.09.2013. At the time of redeployment in Signal Workshop, Gorakhpur Cantt. pay was wrongly fixed by adding 30% Running Allowances. Therefore, excess overpayment due to wrong fixation was deducted from the Retirement Gratuity. Paragraph 16 of the Railway Service (Pension) Rules- 1993 provides adjustment and recovery of dues pertaining to Government, therefore, the deduction from Retirement Gratuity is proper and as per extant rule.
4. We have heard Ms. Akansha Gaur, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents and perused the record.
5. Submission of learned counsel for the applicant is that as per the aforesaid letter of the Railway Board dated 10.04.2017 and 29.09.2017 "no further recovery may be made", will serve no purpose unless and until the recovery already made are not paid back. Learned counsel for the applicant further submitted that applicants have the right of pay protection as per the Constitution of India and the respondents under no rule of law can fix the pay of the applicants lower than the post they were MANISH KUMAR SRIVASTAVA 5 appointed. Learned counsel for the applicant further submitted that all the applicants have retired from service and no recovery process was started during the service period. All of sudden, while issuing the PPO, recovery for excess amount of Rs. 2,23320/- has been issued from the retiral dues of the applicants. It is also argued that no notice was issued to the applicants before making recovery. It is next argued that since applicants are retired employee, no recovery could be made from them in case any excess payment/overpayment has been made. To substantiate his argument, learned counsel for the applicant has placed on record a judgment of Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33 in which Hon'ble Supreme Court has held that no recovery could be made from the retired employee, thus recovery from retired government servant could not be made. He further argued that on the basis of aforesaid judgment, respondents be directed to refund the amount which has been recovered from the applicants with interest.
6. In rebuttal, learned counsel for the respondents preliminary argued that the OA is barred by the principle of res judicata and therefore, it is appropriate to consider this issue before going into the merit of this case. It is also argued that recovery is made in accordance with law. On the basis of wrong fixation of pay, excess amount has been paid to the applicants. This facts came into light at the time of preparation of PPOs.
7. We have considered the rival submission advanced by the learned counsel for the parties and gone through the pleadings on record.
8. The short question involved in this O.A is whether applicants Nos. 1,2,3,6 and 7 can raise similar prayer in subsequent O.A when the earlier OA for similar relief has already been decided and order of the Tribunal has attained finality.
9. Section 11 of Code of Civil Procedure deals with the principle of Res judicata, which is being reproduced below -
"11. Res judicata-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue MANISH KUMAR SRIVASTAVA 6 in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised".
10. If the reliefs claimed in the present matter are compared with the relief claimed in the OA No. 1280/2011 and OA No. 167/2009, it appears that applicant No.5 has already filed OA No. 1280/2011 and applicant Nos. 1,2,3,6 and 7 have filed OA No. 780 of 2003 for seeking a direction to the respondents to release the death cum retirement gratuity, leave encashment and commutation value of pension with interest @ 12% per annum. In both the OAs Tribunal have decided that action of the respondents in recovering the over and above amount which has been paid to the applicants is in accordance with law. Thus, Tribunal directed the respondents to release the post retiral benefits to the applicant after deducting the excess amount paid to the applicant towards 30% running allowance after their absorption to the new post within a period of one month from the date of receipt of certified copy of this order. The orders have attained finality and the same was not challenged by the present applicants Nos. 1,2,3,6 and 7 in any higher forum. Section 11 of Code of MANISH KUMAR SRIVASTAVA 7 Civil Procedure specifically barred the entertainment of subsequent suit. Since the issue involved in the present OA in respect of applicants Nos. 1,2,3,6 and 7 has already been agitated and decided by the Competent Court/Tribunal having jurisdiction. Thus prayer in present OA in respect of applicants Nos. 1,2,3,6 and 7 under the provision of Section 11 of Code of Civil Procedure cannot be allowed.
11. Considering the orders dated 21.07.2011 in OA NO. 1280/2010 and 3.12.2012 in OA No. 167/2009 passed by this Bench, we are of the considered opinion that the applicants Nos. 1,2,3,6 and 7 agitated the similar issue of absorption in the earlier OA NO. 1280/2010 and OA No. 167/2009 and the said issue has already been heard on merit and finally adjudicated and disposed of by the Tribunal even before the Hon'ble High Court. Thus, the instant O.A. in respect of applicants Nos. 1,2,3,6 and 7 is clearly barred by res judicata and the applicant cannot be permitted to agitate the similar issue which has already been considered, adjudicated and decided by the Competent Court.
12. Under the above circumstances, we are of the considered view that the instant O.A. in respect of applicants Nos. 1,2,3,6 and 7 is barred by the principle of res judicata and is liable to be dismissed as not maintainable. Accordingly, O.A. is dismissed in respect of applicants Nos. 1,2,3,6 and 7.
13. So far as applicant Nos 4 and 5 are concerned, it is settled law on the point that firstly no recovery can be made unless any fraud or misrepresentation is alleged on the part of any person from whom the recovery is being sought to be made and secondly, if at all there is any justification for making any recovery, then also adhering to the Principle of Natural Justice, a show cause notice is a pre-condition for making any such recovery. Respondents have not filed any documents, which shows that show cause notice was issued to the applicant Nos. 4 and 5 before recovery. It is very surprising that as to why without issuance of show cause notice, the recovery in question was made.
MANISH KUMAR SRIVASTAVA 8
14. From perusal of record, it is also evident that there was neither any misrepresentation on the part of the applicant No. 4 and 5 nor mistake can be attributed to them. The mistake, if any, can be said to be that of the department. Therefore, the respondents were not justified to recover any amount from the pension of the applicant Nos. 4 and 5.
15. In the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, Hon'ble Supreme Court has been pleased to observe as under:-
"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:
1. Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
2. Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
3. 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.
4. 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.
5. 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".
16. Not only this, the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
"8. We are of the considered view, after going through the "various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered."
MANISH KUMAR SRIVASTAVA 9
17. In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Hon'ble Apex Court has also been pleased to observe that "opportunity of hearing is to be given to the delinquent before passing an order."
18. Admittedly, in the instant case, applicant Nos. 4 and 5 are retired employee and as per Rafiq Masih (supra) case, no recovery could be made from the employee, who are retired employee and have not committed any fraud in getting the excess amount. Since applicant Nos. 4 and 5 were retired employee and has not committed any fraud or misrepresentation in getting the excess amount, thus the recovery from salary of the applicant Nos. 4 and 5 cannot be made.
19. Considering the facts and circumstances of the case and in the light of the observations made by the Hon'ble Apex Court, the present O.A. is allowed in respect of applicant Nos. 4 and 5. Respondents are directed to refund the entire recovered amount to the applicant Nos. 4 and 5 @ 6% per annum simple interest within a period of 03 months from the date of receipt of a certified copy of this order. So far as rectifying the mistake for granting excess amount is concerned, respondents may rectify their mistake but after issuing show cause notice to the applicant and considering the reply given by them. Respondents are also hereby directed to release the death cum retirement gratuity, leave encashment, commutation of pension to the applicant within the period as has been mentioned hereinabove. No order as to costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA