Central Administrative Tribunal - Lucknow
Ramesh Chandra Srivastava vs Union Of India on 5 August, 2024
CAT,Lucknow Bench OA No. 332/0062 OF 2015 Ramesh Chandra Srivastava Vs. U.O.I.&Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00062/2015
Dated this 5thday of August, 2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Ramesh Chandra Srivastava aged about 62 years s/o Late Vishnu
Srivastava R/o Plot No. 117, H/ No. D/A-28, Sector D Rajeev Nagar,
Kalyanpur (West) Lucknow.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Union of India through General Manager, North Eastern Railway,
Gorakhpur.
2. Sr. Divisional Finance Manager, North Eastern Railway, Ashok
Marg, Lucknow.
3. Senior Electronic Data Processing Manager, North Eastern
Railway, Ashok Marg, Lucknow.
4. Divisional Railway Manager (Personnel), North Eastern Railway,
Ashok Marg, Lucknow.
5. Chairman, Railway Board, Rail Bhawan, New Delhi.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
O R D E R (O R A L)
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to pay fixation and recovery, the applicant has sought the following reliefs:
"(i) To quash the impugned order dated 12.07.2014, as contained in Annexure A-1 to the OA with all consequential benefits.
(ii) To quash the impugned order dated 09.12.2013, as contained in Annexure A-2 to the OA.
(iii) To direct the respondents to refund the amount of Rs. 355133/-
deducted from the Gratuity of the applicant along with interest @ 18% p.a with effect from 09.12.2013 till the date of actual payment. Page 1 of 5 CAT,Lucknow Bench OA No. 332/0062 OF 2015 Ramesh Chandra Srivastava Vs. U.O.I.&Ors.
(iv) To direct the respondents to recalculate and pay all the retiral dues on the basis of last pay drawn by the applicant i.e. Rs. 25120/-along with interest @ 18% p.a. on the arrears w.e.f. 01.07.2013 til the date of actual payment.
(v) To direct the respondents to pay interest @ 18% p.a. on the delayed retiral dues paid to the applicant on 03.01.2014.
(vi) To direct the respondents to pay the cost of this application.
(vii) Any other order which this Hon'ble Tribunal deems just and proper in the circumstances of the case be also passed."
2. The facts of the case are that the applicant, having been initially appointed on 17.10.1979 as Junior Clerk under the respondents, retired from service on 30.06.2013 with basic pay of Rs. 20,520/- and grade pay of Rs. 4,600/-. On 29.11.2013, the respondents issued an order inter alia fixing the applicant's pay as Rs. 24,450/- as on 01.07.2012 and further, vide order dated 09.12.2013, revised the pay to Rs. 22,880/- as on 01.07.2012 for the purpose of pension benefits and deducted an amount of Rs. 3,55,133/- from the applicant's gratuity. Aggrieved, the applicant has preferred this OA.
3. It is the stated by the applicant that his servicewas absorbed in the Information Technology (IT) cadre with effect from 01.04.2005 on the post of Sr. Engineer (IT) Grade-II vide order dated 09.10.2007. The applicant contends that he is entitled to payment of retirement benefits as per the last pay drawn of Rs. 25,120/-, inclusive of grade pay,in terms of rule 1303 of the Indian Railways Establishment Code and rule 49 of the Railway Services (Pension) Rules, 1993. It is further contended that the amount paid to the applicant cannot be recovered in terms of Hon'ble Supreme Court's judgment in State of Punjab vs Rafiq Masih (Whitewasher) (2015) 4 SCC 334.
4. The respondents, on the other hand, state that the applicant's absorption vide order dated 09/10.10.2007 was found contrary to the instructions/guidelines for absorption/redeployment scheme under para 7 (ii) of the Railway Board's order dated 17.11.2004. The applicant was Page 2 of 5 CAT,Lucknow Bench OA No. 332/0062 OF 2015 Ramesh Chandra Srivastava Vs. U.O.I.&Ors. working in the computer center on adhoc basis in various capacities such as Console Operator, Sr. Console Operator and Sr. Engineer (IT) Gr. II and his lien was maintained in the Personnel Department of Lucknow Division. Before his posting as Sr. Engineer (IT) Gr. II, the applicant was posted in his parent cadre as Head Clerk vide order dated 25/26.05.1995. It is stated that para 1327 (FR 31-A) of the Indian Railway Establishment Code Vol. II provides that "Notwithstanding the provisions contained in these rules, the pay of a railway servant whose promotions of appointment to a post is found to be or to have been erroneous, shall be regulated in accordance with any general or special orders issued by the competent authority in this behalf." Accordingly, the impugned order dated 09.12.2013 has been issued. The recovery for overpayments has been correctly issued and the applicant is not entitled to any relief.
5. We have heard both the parties.
6.1 The subject matter of recoveries has been addressed comprehensively by the Hon'ble Supreme Court in Rafiq Masih (supra). In this case, the Apex Court was considering those cases wherein the private respondents were beneficiaries of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefits, beyond their due. Another essential feature in those cases was that the employees were as innocent as their employers, in the wrongful determination of their inflated emoluments - that is - they had not furnished any incorrect information which led to the mistake of making the higher payment, they had not made any misrepresentation, nor they had committed any fraud. The issue for adjudication was whether all the private respondents (employees), against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same Page 3 of 5 CAT,Lucknow Bench OA No. 332/0062 OF 2015 Ramesh Chandra Srivastava Vs. U.O.I.&Ors. to the employer. The issue was settled by the Apex Court vide judgment dated 18.12.2014 in the following manner:
"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, summaries 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."
(emphasis supplied) 6.2 It is noted that the case at hand involves a Group C employee, recovery from whom has been made after retirement and for a period in excess of five years. Thus the applicant's case is squarely covered by Rafiq Masih (supra).
6.3 In regard to the dispute regarding the pay fixation, learned counsel for the applicant submitted that the ends of justice will be served if the applicant is allowed to make a representation to the respondents and the respondents directed to decide such representation by a reasoned and speaking order within a stipulated period of time. Learned counsel for the respondents opposed this averment; however, she submitted that if so directed, a period of at least two months may be allowed to the respondents to decide the representation. Page 4 of 5
CAT,Lucknow Bench OA No. 332/0062 OF 2015 Ramesh Chandra Srivastava Vs. U.O.I.&Ors. 7.1 In view of the foregoing, the recovery of Rs. 3,55,133/- made from the applicant by the respondents vide orders dated 12.07.2014 and 09.12.2013 is quashed and set aside and the respondents are directed to make payment of the amount recovered to the applicant with interest as per the bank rate applicable within a period of two months from the date of receipt of certified copy of this order.
7.2 The applicant shall make a representation to the respondents on the matter of pay fixation within two weeks of receipt of certified copy of this order and the respondents shall decide the same afresh, ignoring the orders dated 12.07.2014 and 09.12.2013, within two months of receipt of such representation by a reasoned and speaking order under intimation to the applicant forthwith. It is made clear that we have made no observation on the merits of the case.
7.3 The OA stands disposed of in the above terms.
7.4 Pending MAs, if any, are also disposed of.
7.5 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
Page 5 of 5