Central Administrative Tribunal - Cuttack
D Polayya vs M/O Railways on 19 May, 2022
1 O.A. No. 260/00717 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A. No. 260/00717 of 2017
Reserved on 07.05.2022 Pronounced on 19.05.2022
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
Divvala Polayya, aged about 65 years, S/o Divvala
Latchumanna, Guard (Goods) operating/Khurda, Office of
Chief Controller, Khurda, Presently residing, Rotary Nagar-1,
Door No. 3-77, Tekkali, Dist- Srikakulam, (AP).
......Applicant
VERSUS
1. Union of India, represented by General Manger, E.Co.Rly,
Rail Sadan, Chandrasekharpur, Bhubaneswar-751017,
Dist-Khurda.
2. Senior Divisional Personnel Officer, Office of Divisional
Railway Manager (P), E.Co.Rly., Khurda Road.
3. FA & CAO (Pension), E.Co.Rly, Chandrasekharpur,
Bhubaneswar-751017.
4. Senior Divisional Finance Manager-II, E.Co.Rly., Khurda
Road.
......Respondents
For the applicant : Mr. C.A.Rao, Counsel
For the respondents: Mr. P.K.Ray, Counsel
2 O.A. No. 260/00717 of 2017
ORDER
Swarup Kumar Mishra, Member (J):
The pith and substance of the case of the applicant is that on 01.02.1984 he was appointed as Token Porter in the scale of pay Rs. 196- 236/- and promoted to the post of Assistant Guard on 30.07.1996 in the pay scale of 950-1400/-. While working as such he was declared surplus and absorbed as Jr. Trains Clerk on 23.03.2010 in GP 1900/-. He was granted financial upgradation under MACP to GP 2000/- w.e.f. 01.09.2008. Subsequently, he was promoted to Goods Guard in GP 2800/- vide order dated 10.02.2011. He retired from service w.e.f. 31.01.2012 on reaching the age of superannuation while his basic pay was Rs. 14,860/- with GP Rs. 2800/-. His last pay of Rs. 14,860/- was reduced to Rs. 14,490/- without giving him any notice and, accordingly, his provisional pension was fixed at Rs. 11,230/- w.e.f. 31.03.2012 based on the last pay drawn by him at Rs. 14,490/-. Further, his provisional pension of Rs. 11,230/- was reduced to Rs. 8797/- retrospectively w.e.f. 01.02.2012 without putting him any notice vide revised PPO dated 17.06.2015. He was not paid the full gratuity which was sanctioned in his favour. The applicant has submitted application under RTI Act 2005 seeking information on the reduction of his provisional pension, which was communicated to him under Annexure-A/2. Being aggrieved by such 3 O.A. No. 260/00717 of 2017 reduction, the applicant has filed the instant O.A. inter alia praying as under:
"Under the circumstances, it is therefore prayed that the Hon'ble Tribunal may kindly admit the case, call for the records and after hearing parties quash (Annexure-A/3) order dated. 17.06.2015 received by the applicant under RTI Act (Annexure-A/2) by letter dated. 15.12.2016 reducing further the provisional pension from Rs.11,230/- to Rs. 8797/- retrospectively w.e.f. 01.02.2012, unilaterally without notice without serving copy of the same;
AND In spite of and ignoring the same respondents be directed to pay the applicants all retirement benefits including pension and gratuity, on the basis of the last pay drawn at Rs.14,860/- as per Pension Rules, R.B.E.No.72/2016 issued on the basis of Apex Court judgment, with all consequential financial benefits with interest and costs within specified time limit;
A ND Further declare the recoveries on the alleged excess payment of pension retrospectively w.e.f. 01.02.2012, illegal without jurisdiction and refund recoveries already made with interest and costs;
And/or any other orders/directions as may be deemed fit and proper be passed in the facts and circumstances of the case."
2. The nook and kernel of the stand in the counter filed by the Respondents is that the applicant was initially was appointed as Token Porter on 01.12.1984 in the pay scale of Rs. 196-236 and was promoted to the post of Assistant Guard on 03.07.1996 in the scale of pay of Rs. 950-1400/- (5th CPC) and Rs. 5200-20200/- with GP Rs. 1900/- (6th 4 O.A. No. 260/00717 of 2017 CPC). While he was continuing Assistant Guard he remained absent unauthorizedly from duty without any intimation w.e.f. 27.08.1998 to 11.11.2003 (five years two months and sixteen days) resulting to award of punishment of stoppage of increment for two years w.e.f. 01.07.2009 to 30.06.2011 with cumulative effect; consequent upon culmination of departmental proceedings initiated against him for such unauthorized absence for which he was stagnated in his pay at Rs. 9550/- w.e.f. 01.07.2009 to 01.07.2010 . Meanwhile, the post of Assistant Guard rendered surplus for which the applicant was redeployed in the post of Jr. Trains Clerk w.e.f. 19.05.2010 in scale of Rs. 5200-20200/- with GP 2000/- (non running category). In terms of Rule 903 of IREM Vol. I 1989 Edition, the pay of the applicant was fixed in the post of Jr. Trains Clerk by granting 30% pay element on the pay of Rs. 9550/- which was the last basic pay of the applicant in the post of Assistant Guard (running category) and fixing his pay at Rs. 12,420/- w.e.f. 19.05.2010. Thereafter, the applicant was promoted to the post of Goods Guard (running category) on 11.02.2011. While fixing his pay in the promotional post of Goods Guard, 30% pay element granted to the applicant earlier while fixing the pay of the applicant in Jr. Trains Clerk was not excluded in terms of Estt. Sl. No. 152/75 thereby resulting wrong fixation of pay of applicant at Rs. 12,420/- as on 11.02.2011 in the post of Goods Guard. He was, thereafter, allowed annual increment on 01.07.2011 raising his pay 5 O.A. No. 260/00717 of 2017 to Rs. 14,490/- in the category of Goods Guard erroneously. The applicant retired on 31.01.2012 and, as the mistake could not be detected by the accounts department of the railway, the provisional pension of the applicant was fixed in his last pay at Rs. 14490/- and he was sanctioned the pension commutation of Rs. 4492/- and DCRG amount of Rs. 3,25,504/- erroneously. The erroneous fixation and release of retiral dues was detected on 14.11.2012 and on the basis of the order under Annexure-R/4 dated 14.11.2012 corrective measure was taken by issuing order under Annexure-R/9 dated 17.06.2015 and, consequential order of recovery of the excess payment paid to the applicant under Annexure-R/10 dated 17.06.2015. After adjusting the amount of excess payment made due to erroneous fixation, the outstanding dues of the applicant has been paid to him vide cheque No. 912123 dated 18.09.2015. The respondents have also furnished details in a tabular form what should have been the pay and pension and how erroneously it was fixed and have prayed that there being justifiable reason to rectify the mistake the applicant is not entitled to the relief claimed in this O.A.
3. The stand of the applicant in the rejoinder, in nutshell, is that the applicant was in sick list from 27.12.1998 to 06.11.2003 and resumed duties on 13.11.2003, i.e. for less than five years. Since, applicant was under sick leave without pay, he was entitled to increment notionally in 6 O.A. No. 260/00717 of 2017 terms of Rule 1320 on his joining duties on 13.11.2003 and, therefore, his pay was rightly fixed at 14,860/-. After his retirement, the increment granted to him during his leave was withdrawn and his pay was fixed at Rs. 14,490/- without giving him any notice. Further, the pay of the applicant on his promotion to Goods Guard was rightly fixed taking into consideration the 30% pay element earlier granted to him in the post of Jr. Trains Clerk as was entitled to by him in terms of Rules. Further, it has been stated that since the applicant did not have any contribution towards the erroneous payment nor the payment was on the basis of any misrepresentation on the part of the applicant, recovery was also not justified. It has been stated that as the entire action was taken without complying the basic principle of natural justice and without taking into the facts narrated above in its proper perspective, the applicant is entitled to the relief claimed in this O.A.
4. Mr. C.A.Rao, Ld. Sr. Counsel for the applicant, submitted that reduction of pension without approval of His Excellency the President of India is bad in law; delay in disbursement of the retirement benefits being contrary to rules, the applicant ought to have been paid interest; since excess payment, if any, was not for any fault or misrepresentation of the applicant , recovery ought not to have been made from the retiral dues of the applicant and, last but not the least, it has been stated that since reduction of pay and pension and recovery was without allowing 7 O.A. No. 260/00717 of 2017 him prior opportunity, the entire action starting from reduction/revision of pay /pension and consequential recovery is not sustainable in the eyes of law. In this regard, Ld. Counsel for the applicant placed reliance on the following decisions and provision of the rules.
(i) Rule 78, 79, 91, 87 of Railway Servants (Pension) Rules, 1993- for timely payment of retirement dues.
(ii) WP(C) No. 19279/2011, in Nilamani Mishra Vs. UOI & Ors. - payment of interest due to delay in payment of retiral dues;
(iii) Commissioner of Police, Bombay Vs. Gordhandas Bhanji AIR 1952 SC 16 and OA No. 11/2010 in M.Suryanarayana Vs. UOI - public order, publicly made cannot be construed in the light of explanation subsequently furnished;
(iv) 2016 (ii) OLR 237 in M/s Shree Ganesh Construction Vs. State of Odisha & Ors. -
compliance of natural justice;
(v) State of Punjab Vs. Rafiq Masih, AIR 2015 SC 696, P.Vaidyanath Vs. UOI, OA No. 205 of 2014, Akshay Kumar Patro Vs. M.D.A.P. Power Generation, 2016(i) ILR(Cuttack) 744, and Thomas Daniel Vs. State of Kerala , 2022 live laws (SC) 438- Recovery is bad in law;
5. On the other hand, Ld. Counsel for the respondents has submitted that the applicant was imposed with the order of punishment for his unauthorized absence from duty after conclusion of the disciplinary proceedings initiated against him which having not been challenged by the applicant at any point of time nor even in this O.A., he is estopped to state anything relating to the said aspect of the matter. The applicant while continuing as Assistant Guard which is a running category, was rendered surplus and redeployed to the post of Jr. Trains Clerk, which is 8 O.A. No. 260/00717 of 2017 a non-running category post, w.e.f. 19.05.2010 in the scale of pay of Rs. 5200-20200/- with GP 2000/-. In terms of Rule 903 of IREM Vol. I, 1989 Edition, the pay of the applicant was fixed in the category of Jr. Trains Clerk by giving 30% pay element of last basic pay of Assistant Guard (running category), and fixing his pay at Rs. 12,420/- w.e.f. 19.05.2010. Thereafter, he was promoted to the post of Goods Guard (running category) on 11.02.2011 but while fixing his pay on promotional post, the 30% pay element granted earlier in the post of Jr. Trains Clerk (non- running category) has not been excluded as a result of which, his pay was fixed in higher side as on 11.02.2011 and he was allowed increment on 01.07.2011, which was not in accordance with the rules. The erroneous fixation of pay having come to the notice subsequently, was rightly rectified and the differential amount which the applicant was not entitled to but paid erroneously was adjusted and final payment of his retiral dues was paid to him. Since, the mistake was telltale and as per the rules and law the authority was having every right to correct the same at any point of time, non-granting of opportunity prior to correcting the mistake cannot invalidate their action and in the event of quashing the impugned order it would tantamount to restoring the order impugned thereby allowing the applicant to get the amount he is otherwise not entitled to. Accordingly, ld. Counsel for the respondents have prayed that 9 O.A. No. 260/00717 of 2017 there being no illegality in the decision, intervention in the matter is not warranted.
6. Arguments were considered and pleadings, documents and citations relied on in support thereof have been perused. This Tribunal is convinced with the argument advanced by the Ld. Counsel for the respondents with reference to the pleadings that the applicant is estopped to raise any plea relating to his unauthorized absence debarring him increments as per the order of the disciplinary authority and, therefore, the said decision having not been challenged at the appropriate time is set at rest and cannot be reopened in the present context. The fact that the applicant was granted the pay element of 30% while fixing his pay in the post of Jr. Trains Clerk (non-running category) after being surplus while continuing in the post of Assistant Guard (running category). Estt. Sl. No. 152/75 dated 09.06.1975 clearly provides that the pay of running staff on promotion/reappointment to a running post from a stationary post should be fixed after excluding the element of running allowance paid to an employee whereas it is seen from the record that on promotion of the applicant to the post of Goods Guard on 11.02.2011 his pay was fixed without excluding the 30% pay element and he was granted annual increment w.e.f. 01.07.2011. The applicant has taken the plea that as per the provision the pay element in the running allowance will continue to be treated as pay for the purpose 10 O.A. No. 260/00717 of 2017 of regulating various allowances and entitlements of Running Staff but this does not mean that he will fix his pay in the event of his promotion to next higher grade on the basis of his pay fixed by granting 30% element in the lower grade. The provision, relied on by the respondents is to the extent that an employee will be entitled to get the other allowances based on the pay fixed after adding 30% pay element, which is not the case in hand. Therefore, the provision relied on by the applicant in the rejoinder is of no help to the applicant. So far as the next contention of the Ld. Counsel for the applicant that his pay and pension was refixed/reduced without giving him prior notice is concerned, it may be stated that law is well settled in a plethora of judicial pronouncement and suffice to place reliance in the case of Raj Kumar Soni Vs. State of U.P., (2007) 10 SCC 635 wherein the Hon'ble Apex Court after taking note of the decisions in the case of Gadee Venkateswar Rao Vs. Govt. of A.P., AIR 1966 SC 828, and M.C. Mehta Vs. UOI , AIR 1999 SC 2583, have held that it is not always necessary for the court to strike down an order merely because the order has been passed in breach of the principles of natural justice. The court can refuse to exercise its discretion if striking down such an order will result in restoration of another order passed in violation of the principles of natural justice or otherwise not in accordance with law. At one hand, the applicant is raising his grievance that since no opportunity was allowed to him revision and refixation of 11 O.A. No. 260/00717 of 2017 pay and pension should be held to be illegal and, on the other hand, it is seen that the applicant after getting the information under RTI Act without availing the opportunity to approach the authorities has directly rushed to this Tribunal. This Tribunal is not convinced that the refixation of pay and pension in any manner was de hors the rules. In a catena of decision, the Hon'ble Apex Court has held that the authorities have a inherent power to rectify a bonafide mistake relating to erroneous pay fixation etc. [UOI Vs. Smt. Sujatha Vedachalam & Anr., Appeal (civil) 6423 of 1998, Comptroller & Auditory General of India & Ors Vs. Farid Sattar, Civil Appeal No.13020/96, Bhagwan Shukla Vs. UOI & Ors. 1995 (2) AISLJ 30]. Further, in the case of U.T, Chandigarh & Ors. Vs. Gurcharan Singh & Anr., reported in (2013) 12 SCR 853, it was held that the authority has every right to rectify the mistake and adjust the amount paid due to such mistake. The Hon'ble High Court of Orissa in the case of Vice Chancellor, Utkal University & Ors. in W.P.(C) No.12853 of 2007 have also held that if a mistake was committed by the authority and on its detection the same was rectified no illegality or irregularity can be said to be committed by the authority concerned. The citations relied on by the applicant in this regard is also not applicable to the facts and circumstances of this case. In view of the above, this Tribunal does not find any illegality or irregularity in the decision making process of the matter requiring judicial intervention.
12 O.A. No. 260/00717 of 2017
7. However, it is the case of the applicant that pension and pensionary dues being the solace means of his livelihood after retirement, recovery of the differential amount from his retiral dues caused him financial difficulty and in this regard he has placed reliance in the case of Rafiq Masih, the relevant portion of the said decision is quoted below:
"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."
8. According to the applicant, the wrong fixation of pay was in the year 2012. Applicant is a Group-C employee of the railway and retired on reaching the age of superannuation on 31.01.2012. Therefore, recovery from his retirement dues is bad in law. This Tribunal finds much force on the said submission of the applicant and, accordingly, the respondents 13 O.A. No. 260/00717 of 2017 are directed to refund the recovered amount made from the retiral dues of the applicant towards differential pay and allowance within a period of 60 days from the date of receipt of a copy of this order
9. Insofar as interest on the delayed payment of gratuity/other retiral benefits are concerned, it may be recorded that as per rules and law an employee is entitled to interest where delayed payment is not bonafide. But in the instant case it is seen that due to reasons stated above, the delay was caused, which cannot be said to be intention and deliberate. Hence, this Tribunal is refrained from passing any order on the payment of interest.
10. In view of the facts and law discussed above, this Tribunal is not inclined to interfere in the order impugned except the direction made in paragraph 8 above insofar as recovery is concerned.
11. In the result, the O.A. is partly allowed. There shall be no order.
(SWARUP KUMAR MISHRA) Member (Judicial) RK/PS