Central Administrative Tribunal - Jabalpur
Gyanchand vs The Union Of India on 14 August, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No. 200/00297/14
Jabalpur, this Friday, the 14th day of August, 2015
SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
1. Gyanchand, S/o Shri Mithilal, aged about 55 years, Technician-I
(T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.),
Pin Code-483501
2. Madhav Singh, S/o Shri Mohanlal, aged about 53 years, Technician-I
(T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.),
Pin Code-483501
3. Omprakash, S/o Shri Shankar Rao, aged about 54 years, Technician-I
(T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.),
Pin Code-483501
4. Raj Narayan Singh, S/o Shri Kanchan Singh, aged about 54 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
5. Sunil Kumar Bilaiya, S/o Late Shri P.D.Bilaiy, aged about 55 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
6. Arun Kumar Pandey, S/o Late Shri J.N.Pandey, aged about 53 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
7. Hasmat Ali, S/o Shri Wahid Ali, aged about 54 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.),
Pin Code-483501
8. Najir Ahmad, S/o Shri Noor Mohammad, aged about 53 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
9. Mohammed Hanif, S/o Shri Noor Mohammad, aged about 55 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
10. Ramkhilawan Gupta, S/o Shri Rammilan Gupta, aged about 55 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
11. Ravindra Prasad Singh, S/o Shri Raghunath Prasad Singh, aged about 55 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
12. Trilochan Prasad Khare Singh, S/o Shri Shankar Prasad Khare, aged about 54 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
13. Deo Prakash Swami, S/o Shri Gopal Swami, aged about 52 years, Technician-I ;(T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
14. Bhai Lal Garg, S/o Shri Ramvishwas Garg, aged about 54 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
15. Krishna Kumar Markam, S/o Shri Kishorilal, aged about 51 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501
16. Mukesh Das, S/o Shri A.L.Das, aged about 52 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), 483501
17. Pawan Kumar Jain, S/o Shri Sunder Lal Jain, aged about 55 years, Technician-I (T&C), Diesel Loco Shed, New Katni Junction, District-Katni (M.P.), Pin Code-483501 -Applicants
(By Advocate Shri Sanjay Kumar Bakshi)
V e r s u s
1. The Union of India, through its Secretary, Railway Bhawan,
Rafi Marg, Ministry of Railway, Delhi-110001
2. The General Manager West Central Railway, Jabalpur,
O/o General Manager, WCR Jabalpur (MP), Pin Code-482001
3. The Divisional Railway Manager (Personnel), O/o Divisional Railway Manager, WCR, Jabalpur (M.P.), Pin Code-482001
4. The Divisional Personal Officer (D.P.O.), O/o Divisional Railway Manager, WCR, Jabalpur (M.P.), Pin Code 482001
5. The Senior Divisional Mechanical Engineer (Diesel),
Diesel Loco Shed, New Katni Junction, District-Katni (M.P.),
Pin Code-483501 -Respondents
(By Advocate Smt. Amrit Ruprah)
(Date of reserving the order : 06.08.2015)
O R D E R
The short issue arises in the instant case is whether the respondents can make recovery of the amount from the applicants on account of their wrong pay fixation consequent to their promotion, when the applicants had already got the same benefit at the time they were granted financial upgradation under the Modified Assured Career Progression Scheme (hereinafter referred to as the MACP scheme).
2. The admitted facts of the case are that the applicants were appointed as Technician Grade-III in the pay scale of Rs.5200-20200 plus Grade Pay of Rs.1900/- and after completion of 10 years of service they were granted first MACP in the pay scale of 5200-20200 plus Grade Pay of Rs.2000 with pay fixation by adding 3% increment w.e.f. 1.9.2008. Subsequently when regular promotion was given to the applicants in October, 2010 as Technician-II their pay was fixed in pay band Rs.5200-20200 plus Grade Pay of Rs.2400. But erroneously, this time also 3% increment was added to their pay. The Railway Board vide their R.B.E.No.101/2009 on the subject of Recommendations of the Sixth Central Pay Commission MACP scheme for Railway employees dated 10.06.2009 (Annexure R-1) has clearly stipulated that:
4. Benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation under the Scheme. Therefore, the pay shall be raised by 3% of the total pay in the Pay Band and the Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay as granted under MACPS. However, at the time of actual promotion if it happens to be in a post carrying higher Grade Pay than what is available under MACPS, no pay fixation would be available and only difference of Grade Pay would be made available. To illustrate, in case a Railway Servant joins as a direct recruit in the Grade Pay of Rs.1900 in PB-l and he gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACPS in the next higher Grade Pay of Rs.2000 and his pay will be fixed by granting him one increment plus the difference of Grade Pay (i.e. Rs.100). After availing financial upgradation under MACPS, if the Railway servant gets his regular promotion in the hierarchy of his cadre, which is to the Grade Pay of Rs.2400, on regular promotion, he will only be granted the difference of Grade Pay between Rs.2000 and Rs.2400. No additional increment will be granted at this stage (emphasis supplied by me).
3. Thus, a close scrutiny of the above Railway Boards letter R.B.E.No.101/2009 dated 10.6.2009 and the facts of the instant case, as narrated above, clearly reveals that since the applicants joined the Railways as direct recruits in the Grade Pay of Rs.1900 in PB-l and on completion of 10 years of service they were granted financial upgradation under MACPS in the next higher Grade Pay of Rs.2000 w.e.f. 1.9.2008 and their pay was fixed by granting them one increment, plus the difference of Grade Pay (i.e. Rs.100), after availing benefits of pay fixation on getting financial upgradation under MACPS, when they were granted regular promotion in October,2010 in the hierarchy of their cadre, which is to the Grade Pay of Rs.2400, they were only entitled for grant of difference of Grade Pay between Rs.2000 and Rs.2400 and no additional increment was to be granted to them in terms of the aforementioned Railway Boards letter. Since they had wrongly been granted the benefit of 3% increment again at the time of their regular promotion, in terms of the aforesaid Railway Boards circular, the respondents are justified in correcting this mistake in pay fixation and making recovery of the wrong payment made to them.
4. In the matters of Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417 the Honble Supreme Court has held thus:
(14). We are concerned with the excess payment of public money which is often described as taxpayers money which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
5. On this aspect, the Honble Supreme Court has recently pronounced its judgment in the case of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334. In para 13 of this judgment the Honble Supreme Court has held that payments which have been wrongly made if are detected within five years, it would be open to the employer to recover the same. The relevant portion of this judgment reads as under:-
(11). For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to the employees, came up for consideration, and this Court disallowed the same. These are situations, in which High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters.
(12). Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in para 58:
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, B.J. Akkara v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99. (13) First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee.
(14) In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under:
11. Although we have held that the Petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the Petitioners due to the fault of the Respondents, the Petitioners being in no way responsible for the same. It is apparent, that in Shyam Babu Verma's case (supra), the higher pay-scale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India. (emphasis supplied by me)
6. No doubt, in para 18(i) of the judgment in the matters of Rafiq Masih (supra) the Honble Supreme Court has held that recovery from employees belonging to Class-III and Class-IV service cannot be made, however, this para would have to be read with para 13 which states that the wrongful payments if detected within five years can always be recovered by the employer. Para 18 of the said judgment reads as under:-
(18). 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 the employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
7. The Honble Delhi High Court in the matters of Sh.Jagdish Prasad and others Vs. University of Delhi and others, W.P.(C) No.3583/2007 decided on 15.4.2015, while dealing with the issue of recovery from Class-IV employees have discussed the decision of the Honble Supreme Court in the matters of Rafiq Masih (supra), and in para 15 of the order have held thus:
15. No doubt, in para 12 of the judgment in the case of Rafiq Masih (supra), the Supreme Court has laid down the categories of persons from whom recoveries cannot be made, however, these observations with respect to whom the recoveries cannot be made have necessarily to be read with the binding ratio in para 11, that if a mistake is discovered within five years then recoveries can be effected and assuming that the mistake was not discovered within five years even thereafter the mistake can be corrected i.e mistake can be rectified by stopping future payments and which were being wrongly made earlier. Thus from the date when the order of the UGC was passed in March,2001 by issuing of the letter dated 08.3.2001, no further payments could have been made, because HRA payments were in violation of the applicable guidelines, circulars and notifications which the UGC was entitled to issue. However, for the period before 08.3.2001, the ratio of paras 11 and 12 of the judgment in the case of Rafiq Masih (supra) will apply because the mistake of wrong payment of HRA in the present case was not discovered within five years, and in fact petitioners without any default on their part and without any misrepresentation on their part continued to receive HRA. There is even no question of any misrepresentation by the petitioners because as stated above UGC itself had authorized payment of HRA in terms of its letter/memorandum dated 26.4.1972. Hence, I hold that the impugned order dated 09.4.2007 will only be effective from 08.3.2001 and not retrospectively before this date, and no recoveries can be made against the petitioners for any HRAs paid to them prior to 08.3.2001.
8. In the instant case, the applicants got the benefits under the MACP scheme w.e.f. 1.9.2008 by allowing them the grade pay of Rs.2000 plus 3% increment and thereafter they were wrongly granted benefit of pay fixation of 3% on their regular promotion in October, 2010 in the grade pay of Rs.2400/-. Thereafter, recovery was started with effect from the salary for the month of July 2013. Thus, the wrong payment was detected in July, 2013 i.e. within five years from October 2010. Since the recovery started within five years, the respondents are fully entitled to make recovery against the applicants of the amounts which the applicants were erroneously paid without any authority of law.
9. In view of the above, there is no merit in the instant Original Application and the same is accordingly dismissed, however, without any order as to costs.
(G.P.Singhal) Administrative Member rkv 8 Sub: recovery OA No.20000297/14 Page 8 of 8