Central Administrative Tribunal - Kolkata
Madhusudan Mukhopadhyay vs Eastern Railway on 30 September, 2022
1 0.A. 1234 of 2020 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH, KOLKATA 0.A. 350/01234/2020 Hon'ble Ms. Bidisha Banerjee, Judicial Member Madhusudan Mukhopadhyay, Ex Console Operator cum Instructor Under General Manager, Eastern Railway, Presently residing at Burir Bagan, P.O. & P.S. Burdwan, District ~ Purba Burdwan, Pin -- 713101, West Bengal. eseeeeess Applicant. Versus 1. Union of India, Service through the General Manager, Eastern Railway, Having his office at 17, Fairlie Place, Kolkata -- 700 001. 2. Principal Chief Personnel Officer, Eastern Railway, Having office at 17, Fairlie Place, Kolkata -- 700 001. 3. The GM (Vigilance) sum Senior Deputy General Manager Having office at 17, Fairlie Place, Kolkata -- 700 001. 4. Director Vigilance (Intelligence), Railway Board, Rail Bhawan, New Delhi-- 110001. 5. The Principal, Zonal Railway Training Institute, Bhuli, Dhanbad, Pin -- 828104. sevteteensens Respondents. For the applicant: | In Person . For the respondents: Mr. R. Halder, Counsel, Mr. S. Chakraborty, Counsel Date of order: 30.9.2. 2 0.A. 1234 of 2020 ORDER
Per : Bidisha Banerjee, Judicial Member Heard Ld. Counsels.
2. This applicant has sought for the following reliefs:
"8.1 To set aside and quash the letter dated 27.07.2020, the vigilance report dated
- 09.07.2014 and letter dated 02.08.2014 which were issued in a arbitrary, capricious and malafide manner in violation of the provision of IREC RBE 26/2000 and RBE 26/2003 and ignoring the findings of the respondent no.5;
8,2 To direct the respondent 2 and 6 to refund the entire training allowance to the tune of Rs. 4, 24, 314/- so recovered from the salary of your applicant in an arbitrary and illegal manner in complete of the provision of RBE 26/2000 and RBE 21/2003;
8.3 To direct the respondent authority to make payment of Training Allowance from 01.07.2014 to January, 2017 for taking classes in the Training Institute through payment of his Training Allowance was stopped from 01.07.2014, 8.4 Show cause in terms of prayer 8.1, 8.2 and 8.3 and after hearing the cause make the rule absolute.
8.5 A direction as to costs of the proceedings to the applicants;
8.6 Any further order or orders, direction or directions as the Hon'ble tribunal may deem fit and proper for the ends of justice. "
3, This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties.
4. The facts narrated by the applicant, appearing in person are the following:
The Applicant joined the Railway Service as Wireless Maintainer Gr.lll, through RRB on 15.03.1983.
He joined as Console Operator on 18.02.1992 through a Selection, in Multi Disciplinary Zonal Railway Training Institute.
The Principal, ZT proposed Training Allowance for him on 06.01.1993.
3. 0.A. 1234 of 2020 The Chief Personnel Officer issued letter for Training Allowance by changing his designation.
Later the Principal issued Office Order, and the applicant was allowed to.
get Training Allowance from 15.02.1993.
The Chief Personnel Officer even issued. letter fixing his Lien as-a Console Operator, vide letter dated 17.10.03.
Suddenly, as a bolt from the blue the Eastern Railway Vigilance issued a letter of Recovery on 09.07.2014.
When Applicant approached, the Principal wrote a letter to Senior Deputy General Manager that the applicant was working in Ex. Cadre Post as Instructor (Computer) and the Post of Console Operator is a Permanent Post.
Further the Principal also wrote a letter to Chief Personnel Officer, Eastern Railway on 16.03.15, and sought for clarification along with the judgement of Hon'ble Supreme Court dated 18.12.2014. (State of Punjab Vs Rafiq Masih) but CPO/E. Rly did not give any answer regarding inapplicability of the said judgement of Hon'ble Supreme Court.
Principal then wrote a letter to General Manager (VIGILANCE) for deduction of Training Allowance. The Training Allowance is stopped from 01.07.2014 and recovery started from August 2014 @ Rs. 10103/ from salary without any show cause, notice or charge sheet.
The Principal wrote two letters to CPO/E. Rly for posting of new Computer Instructor replacing the Applicant but the applicant has been forced to take the "Als 4 O.A. 1234 of 2020 classes up to 05.01.17 as would be evident from the Class Routine of January 2015 and December 2016 (page 70 and 71).
The Applicant was transferred at Kolkata Head Office on 10.01.2017.
The Railway Board Vigilance issued a stricture to Chief Personnel Officer/Eastern Railway/Kolkata by its four pages letter (page no 42 to 45) and sought for a clarification why deduction have been done in spite of Hon'ble Apex Court Judgement.
Railway Board Vigilance even sought for clarification from the General Manager Vigilance by its four pages letter, as to the reason such deduction has on the following:
"2.1. As per selection notification No. 2890/2/31/TRG (Bhuli) Pt. IV 01.03.1990 of CPO/ER followed by his office order no S&T/145/92 dated 14.02 1992, Shri Madhusudan Mukhopadhyay, then WM-II in scale Rs. 1200-1800/- under CSTE (Pig)/ER/Kolkata was selected for the post of Console Operator in Scale Rs. 1600-2660 in Single Cadre Post. He joined ZTC/Bhuli on 18.02.1992 2.2. Shri Madhusudan Mukhopadhyay, after joining ZTC/Bhuli, in addition to his work as Console Operator, started imparting computer training. To bring him at par with the other instructors of ZTC/Bhuli, Principal/ZRTI/Bhuli sent a proposal vide letter No.ZTC/B/RS/Trg. Allowance/ Instructor dated 06.01.1993 to CPO/ER to re-designate the post of Console Operator as 'Computer Instructor' so that Shri Mukhopadhyay may also be entitled to Training Allowance at par with other instructors. He wrote the letter after the issue was discussed in the governing council meeting held at ZTRI/Bhuli on 28.07.1992 and it was decided to re-designate the post of Console Operator as 'Computer Instructor'.
2.2.1. Records reveal that on receipt of the said request the proposal was examined by Personne! Office of Eastern Railway vide their note dated 19.01.1993 and SPO/ RP has recorded therein as under:
"This is a case for granting Training Allowance to Shri M.S. Mukhopadhyay who has been posted as Console Operator at ZTRI/Bhuli. Though Shri Mukhopadhyay is entrusted to impart computer training, but he is not getting Training Allowance as he is designated as Console Operator.
a
5 0.A. 1234 of 2020 In view of the above, CPO may kindly accord his approval to re- designate Shri Mukhopadhyay as Instructor (Computer) for has entitlement for training allowance."
2.2.2. CPO (Admn)/ER approved the above proposal on 20.01.1993 to re-
designate the post and marked the fie to Chief Safety Superintendent (CSS).
CCS raised a query on whether the grade of Console Operator is comparable to the Instructor's grade.
2.2.3. SPO/RP clarified that both Console Operator and Instructor Grade-II are in the pay scale Bs 1600 - 2660 RP. Thereafter, CSS agreed for re- designation of post vide his approval dated 29.01.1993. Thereafter, CPO's office issued a letter No. £890/2/31/Trg/Console Operator dated 02.02.1993 according approval of re-designation of post of Console Operate as Computer Instructor.
2.2.4. On receipt of the letter the Principal ZTC/ Bhuli issued an Office Order dated 15.02.1993 conveying the approval of the competent authority for re- designation and mentioned the following, inter alia.
"Shri M.S. Mukhopadhyay present incumbent to the post of Console Operator in grade Rs. 1600 - 2660 is accordingly re-designated as Computer Instructor in grade Rs. 1600 -- 2660 RP w.e.f. 18.02.1992, i.e., from the date he joined at ZTC, Bhuli and is entitled to Training Allowance."
2.2.5. Thus, Shri Mukhopadhyay was allowed to avail Training Allowance from February 1993.
2.3. From the above, it is clear that the presumption was that 'Training Allowance' entitlemént come along with the designation of 'Instructor'. Even the CPO's office of Eastern Railway appears to be under the same imppression as is evident from the notings of SPO/RP. As seen from the notings in CPO's officer, the competent authority deliberated on the aspect of equivalence of grade of both the posts of Console Operator and Instructor; but never questioned the entitlement of Training Allowance. Since the Principal, ZTC, Bhuli had proposed re-designation so that 'Training Allowance' is allowed to Shri Mukhopadhyay and there was nothing contrary to that proposal mentioned in the letter from CPO's office permitting re-designation, in the office order that followed from the Principal, he clearly mentioned that Shri Mukhopadhyay is entitled to the Training Allowance.
2.3.1. Since it was taken for granted that the entitlement for 'Training Allowance' flows from the designation of Training Instructor, there was nothing unusual in the letter of the Principal, ZTC dated 15.02..1993.
6 0.A. 1234 of 2020 2.4. Coupled with the above assumption/ presumption, there was ambiguity also related to the nature of the post of 'Console Operator'- whether it is a 'cadre' post or an 'ex-cadre' post. In this regard, the following are relevant:
(i) Applications were called for 'selection' to this 'single' post of Console Operator in the scale of Rs. 1600-2660 (RP) and form a panel vide CPO's"
letter No, E-890/2//31/Trg (Bhuli)/Pt.1V dated 01.03.1990 and the eligibility condition were clearly mentioned. Shri Mukhopadhyay, then working as WM-II under CSTE/Plg./CCC, in the Rs. 1200-1800 (RP) was selected for the post being from one of the three feeder grades for the post.
(ii) Principal, ZTC, Bhuli, vide his letter No. ZTC/E/2/RS/instructor/02 dated 12.09.2002 addressed to CPO, Eastern Railway, in the context of clarity regarding the status of Shri Mukhopadhyay, has mentioned inter-alia that 'ZTC/Bhuli has no cadre of its own and lien of all the staff posted here, is maintained in their respective open lines'. He has further mentioned that 'despite the fact that more than 8 years have elapsed neither his lien has been fixed nor he had been promoted to the next higher grade'. In response, CPO office, vide their letter No. E.839/2/SG/L/WM dated 05.11.2002 replied as under:-
"After review of the procedure for selection of console Operator at STC/ Bhuli, the competent authority has decided that Shri Mukhopadhyay will continue to be worked as console operator which has not decided as Ex-cadre, in scale Rs. 5500-9000/- (RSRP) at STC/ Bhuli till further advice.
The question of fixing his lien de-novo.is under examination and the same will be informed in due course as and when a decision is arrived at."
2.4.1. The above noting, though in grammatically wrong Engilish, indicates that till that time there was no clarity on the following issues:-
i) Whether the post of Console Operator (Instructor/Computer) was ex-
cadre or not, it was only in 2002 November it was decided that the post was not ex-cadre;
ii) Whether his lien continued in Eastern Railway or was fixed at ZT C/ Bhuli (since as per the admission of the Principal, ZTC did not have a cadre of its own). .
2.5. Shortly afterwards, CPO office wrote to Shri Mukhopadhyay vide their letter No. EX9/2/SG/L/WM dated 24.09.2003 asking for his option as. . regards his lien. Shri Mukhopadhyay vide his letter dated 29.09.2009 opted for continuing as Console Operator in the scale 5500-9000/- (RSRP) and not in the category WM-II in scale of 1200-1800/- (RSRP).
2.6. Pursuant to this, CPO office vide its letter dated 17.10.2003 advised the Principal, ZTC, Bhuli that "Competent Authority has observed that Shri
-_ 7 0.A. 1234 of 2020 Mukhopadhyay will continue in the single cadre post of Console Operator at ZTC, Bhuli. The particular post now to be considered as an open post and Sri APO etc. if he is eligible otherwise."
2.7. Thus, it was only in 2004 that the issue got clarity and Principal, ZRTI Bhuli, vide his Office order dated 19.02.2004 clarified inter alia that "The post of Console Operator at ZTC/Bhuli/Eastern Railway has been declared as Single Cadre Post and the post is now to be considered as Open Post and as such lien of M.S. Mukhopadhyay Instructor (Computer)/ZRTI/Bhuli has been fixed as Console Operator at ZRTI/Bhuli, E Railway in terms of CPO/KKK's letter No. E.890/2/SG/L/VM dated 17.10.2003 w.e.f. 18.02.1992 i.e, from the date he joined at ZRTI/Bhuli/Dhanbad, Eastern Railway'.
2.8 In reply to Vigilance Officer (Account)'s query dated 01.10.2013 addressed to Dy. CPO(HQ)'s office in Eastern Railway if Shri Mukhopadhyay is elighis for training allowance, CPO office vide its letter dated 17.01.2014 has clarified that "only faculty members who are drawn on deputation basis from the field and whose duty is to import training/ education to the trainee may be granted 'Training Allowances' at the rate of 15%. Accordingly, faculty members who are working as regular measure in training institutes are not eligible for training allowance under extant rules. The admissibility of the allowance will be examined by Committee at the appropriate level to be constituted as. per RBE No. 127/2001."
2.9 On the basis of a few complaints received by Eastern Railway Vigilance which inter-alia contained an allegation that Shri Mukhopadhyay is claiming training allowance for the past 15 years though he has not taken_a single class and not being an instructor he is not entitled for training allowance, the same was investigated by Eastern Railway Vigilance, ER Vigilance, vide their letter dated 09.07.2014, communicated to Principal, ZRTI, Bhuli, inter alia, as under:-
" tt is clear that Shir Madhusudan Mukhopadhyay originally selected for the higher post of Console Operator/ZRTI/Bhuli's office order, although imparting training on computer and establishment matters, is working against a cadre post. He is neither in ex-cadre post nor in deputation at Training Institute and as such he was not/ is not entitled to training allowance at any stage since induction in ZRTI/Bhuli w.e.f. 18.02.1992. It is therefore advised to take necessary step to stop training allowance in favour of Sri Mukhopadhyay immediately and also to take step for recoveries of training allowance drawn by Sri Mukhopadhyay since 18.02.1992 till date duly calculated and vetted by Sr. DFM/ER/ASN. Recovery may however be effected in suitable instalments."
2.10. IN response to the above letter, Principal, ZRTI, Bhuli vide _his letter dated 11.07.2014 while confirming that Teaching Allowance _has been -- stopped with effect from July 2014, has written to SDGM/ER_drawing reference to two of his letters, dated 06.01.1993 and 15.02.1993, that he had first proposed Teaching Allowance and subsequently had passed orders on getting confirmation fromm CPO/KKK. Moreover, Console Operator's post 8 0.A. 1234 of 2020 at ZRTI is a permanent post but Instructor (Computer) is of Ex-Cadre and Shri Mukhopadhyay is enjoying Teaching Allowance through Ex-Cadre post".
5. Keeping in view the above facts, the following may be clarified:-
(1) When there was no clarity on the issue till at least the year 2002, was it justified on the part of Eastern Railway Vigilance to advise recovery of training allowance since 1992?
(2) How was Sri Mukhopadhyay responsible _in_getting the training allowance which he was supposedly not entitled to?
(3) Records indicate this training allowance was allowed to him with effect from the month of February 1993. However, Eastern Railway Vigilance advised deduction from_his pay w.e.f. the month of February,.
1992. Why so? Reasons for the same may be advanced.
4). As regards the other allegation of irregularities regarding non- regularisation of extended period of outstation duty, it is observed that Vigilance has commended specific penalty to be imposed as Shri Mukhopadhyay. This apparently is not_in order. Vigilance should have recommended a penalty, i.e., major or minor, commensurate to the irregularities proved to the Disciplinary Authority. However, it is seen that Vigilance recommended to the DA a penalty and insisted on its imposition.
(5) Keeping in view the above, it may be clarified as why the act of Vigilance department in this case should not be treated as 'excess and why action against the Vigilance officials involved should not be initiated.
4, Clarifications may be furnished latest by 31.07.2017."
The applicant submitted his representation against recovery of Training Allowance to CPO/E. Railway and also represented to the Cabinet Secretariat DPG (Director of Public Grievance) online, on 30.10.2019 for not getting any response from Railways till retirement. The DPG for Railways acknowledged, by its letter addressed to the applicant dated 31.10.2019, and the applicant also represented via on line Grievance portal, and the answer is under process.
That the Principal has given his reply dated 27.07.20 & 14.10.20 to the -- Cabinet Secretariat DPG for Railways (Director of Public Grievance) in_ continuation of applicant's letter 30.10.19 and Cabinet Secretariat DPG for 9 0.A, 1234 of 2020 Railways's reply to the applicant has been received on 30.07.2020 & 19.10.2020.
Hence the Applicant who retired on 30.11.2019, has filed the matter on 02.12.20.
In his Reply dated 22.02.2019, to the application of under RTI Act 2005 the Chief Personnel Officer served the copy of Director Vigilance (Intelligence)/Railway Board New Delhi and AGM's letter and other letters to the applicant.
That the Railway Board's Circular, RBE No 26/2000, RBE 21/03, calls for Training Allowance, RBB 72 /2016 clearly says that before recovery approval of the Secretary in the Railway Ministry and consultation with Finance Directorate should be taken and employee should be informed, but Administration did nothing.
Applicant would refer to the decision of Hon'ble Supreme Court's Judgement, (Latest Judgement and other judgements), in Civil Appeal No 11527 of 2014 State of Punjab and others Vs Rafiq Masih (White Washer) against | recovery of excess amount from serving/ retired employees which has element of fraud or misrepresentation is alleged.
5. Per contra, the respondents have attempted to justify recovery, having said as under:
"8. Admissibility of Training Allowance has been clearly communicated by Railway Board from time to time which clearly stipulates - Training Allowance is only extendable to the Instructors imparting training in Training Institutes who are drafted or posted on deputation under Training Institutes in terms of CPO's circulars issued from time to time vide No. 44/91, 116/95, 18102)/2003 (RBE No. 21/2003) and 122(091/2005 (RBE:
No. 139/2005).-As he was neither drafted on deputation or posted against an ex-cadre post (rather posted against a regular single cadre post with elevated pay scale), so admissibility of such training allowance was rightly denied and recovered. In this regard, an application made by the present applicant for stoppage of such recovery, duly forwarded by the a 10 O.A. 1234 of 2020 Principal/ZRTI/Dhanbad/Bhuli (Copy Enclosed as WN/11 was specifically rejected vide this office letter dated 21/01/2016 (Copy enclosed as WN/20).
9. 'However, from the official records it is seen that his recovery was made from the month of August, 2014 onwards ie. well before the judgment of Rafiq Masih (2015) 4 SCC 334, which was delivered on 18/12/2014. As such that Judgement also cannot have retrospective effect to determine the present case. Moreover, this case is of like nature of Syed Abdul Quadir (2009) 3 SCC 475 and High Court of Punjab & Hariyana Vs Jagdev Singh, the recovery of wrongly paid Teaching Allowance was recovered from the salary of the present applicant Sri Madhusudhan Mukhopadhyas an equal monthly installments from August 2014 onwards whereas his retirement on superannuation is on the year 2019 (30/11/2019) ----
i.e. 5 years 4 months of his service left at that time and as such Rafiq Masih (2015) 4 SCC 334 conclusion also not applicable. Moreover, the amount of every amount as per monthly installments is very minimum as compared to the gross salary of the petitioner, less than 10% of his monthly salary. Therefore the cause of hardship also not tenable. At the same time the petitioner come to court after his retirement and specifically in the year 2020 whereas his recovery was made in the year 2014 specifically from August 2014 which is 6 years from 2020 as such his action is also barred by delay/limitation vide Supreme Court Judgement Rabindra Nath Bose & Ors Vs UO! & Ors | AIR 1970 Sc 470) which is also followed by CAT. Ernakumlam Bench in OA 325 of 2017 vide order dated 17/11/2017. The copy of which is annexed hereto us "W/N/3" and also judgement of High Court of Punjab & Hariyana Va Jugdev Singh enclosed as "WN/4"."
6. Rival contentions are noted.
The applicant is aggrieved as he has suffered a recovery of Rs.10,000/- from | his salary, from August 2014 onwards till his retirement in 2019. His repeated, incessant representations ventilating his grievance, failed to break the ice. Recovery per month if held erroneous, is a continuing wrong, that admittedly started in August, 2014 and was continuing till 30.11.19. All along he preferred representations till 2019-2020 and moved this application for refund of recovered amount in 2020. Therefore the application cannot be dismissed on the ground of limitation. Moreover, the applicant has claimed that the Chief Personnel Officer issued a letter fixing his lien as a Console Operator, on 17.10.03.
11 0.A. 1234 of 2020 The Principal wrote a letter to senior Deputy General Manager that the applicant was working in Ex. Cadre Post as Instructor (Computer) and that the Post of Console Operator is a Permanent Post The Principal also sought for clarification from Chief Personnel Officer, Eastern Railway on 16.03.15 in terms of the judgement of Hon'ble Supreme Court dated 18.12.2014. (State of Punjab Vs Rafiq Masih) but CPO/E.Rly did not give any answer.
The Principal wrote a letter to General Manager (VIGILANCE) about deduction of Training Allowance and Training Allowance was stopped from 01.07.2014. Recovery started from August 2014 @ Rs. 10103/- from salary without notice and without issuing charge sheet.
Further, Principal wrote two letters to the CPO/E. Rly for deputing new Computer Instructor replacing the Applicant but and the applicant was forced to take the classes up to 05.01.17. The Class Routine of January 2015 and December 2016 names the applicant (E/MSM) and also note in Routine named NB/D. Meanwhile the applicant was transferred to Kolkata Head Office on 10.01.2017.
Railway Board Vigilance strongly wrote to the Chief Personnel Officer/Eastern Railway/Kolkata by its four pages letter seeking clarification why deduction have been done in spite of Hon'ble Apex Court Judgement.
Further, Railway Board Vigilance thoroughly wrote the General Manager Vigilance by its four pages letter seeking clarification why deduction have been done in spite of Apex Court Judgement.
12 0.A. 1234 of 2020 The applicant submitted his representations against recovery of Training Allowance to CPO/E. Railway and also represented to the Cabinet Secretariat DPG for Railway (Director of Public Grievance) on line dated 30.10.2019, the DPG for Railways acknowledged by its letter addressed to the applicant dated 31.10.2019. The applicant also applied in other on line Grievance portal and the answer is said to be under process.
That the Principal has given reply dated 27.07.20 & 14.10.20 to the Cabinet Secretariat DPG for Railways (Director of Public Grievance) in continuation of applicant's letter 30.10.19 admitting that the "deduction have been made from 18.2.92"whereas allowance was paid from February, 1993.
The Cabinet Secretariat DPG for Railway's replied on 30.07.2020 & 19.10.2020. The Applicant meanwhile retired on 30.11.2019.
RBE 72/2016 clearly says that recovery shall be made with the approval of the Secretary in the Railway Ministry and in consultation with Finance Directorate with information to the applicant, but Administration did nothing.
Further, Hon'ble Supreme Court's Judgments, Hon'ble High Court's Judgements, this Central Administrative Tribunal's decisions, Kolkata & Ministry of Finance letter in the wake of Civil Appeal No. 11527 of 2014 State of Punjab and others Vs Rafiq Masih (White Washer) etc. filed by way of Memo regarding 'fecovery of excess payment relied by the applicant, lead to the inevitable conclusion that recovery cannot be made from Group 'C' employees where no fraud or misrepresentation is alleged.
7. The decision in Rafiq Masih was rendered on 18" December 2014, when it became the law of the land. Judicial Pronouncements of Hon'ble Apex Court p 13 0.A. 1234 of 2020 cannot be overturned by any administrative order. A law laid down by the Hon'ble Apex Court is declaratory for the nation. In a judicial system governed by precedents, judgments or propositions laid down by the Hon'ble Apex Court of the nation must be respected and applied with meticulous care and sincerity.
In State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors. (2015) 2 SCC (L&S) 33 the Hon'ble Apex Court summarised the situations were recovery would be permissible, and held:
"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 decision referred to hereinabove, 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 Ill 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 for outweigh the equitable balance of the employer's right to recover."
In the instant case both (i) and (iii) (supra) apply.
8. The applicant appearing in person has also cited the DoPT OM dt. 2.3.2016 issued in the light of Rafiq Masih, which stipulates as under:
"5 The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The -- Ministries / Departments are advised to deal with the issue of wrongful /. excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No. 11527 of 2014 14 0.A. 1234 of 2020 (arising out of SLP (C) No. 11684 of 2012) in State of Punjab and others _etc vs Rafiq Masih (White Washer) etc. However, wherever the waiver of recovery in the above-mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department's OM No. 18/26/2011-Estt (Pay-I) dated 6"
February, 2014." |
9. The Railway Board's letter dated 14.7.2017 seeking clarification from the GM (Vig.) is very clear on the following aspects:
(i) Way back in 1992, the Principal ZTC/ Dhuli had mentioned that the applicant --
"Shri M.S. Mukhopadhyay present incumbent to the post of Console Operator in grade Rs. 1600 - 2660 is accordingly re-designated as Computer Instructor in grade Rs. 1600 -- 2660 RP w.e.f, 18.02.1992, i.e., from the date he joined at ZTC, Bhuli and is entitled to Training Allowance." .
And Railway Board observed that --
"Thus, Shri Mukhopadhyay was allowed to avail Training Allowance from February 1993.
2.3. From the above, it is clear that the presumption was that 'Training Allowance' entitlement come along with the designation of. .
ou 'Instructor'.
(ii) Post of Console Operator at RTI is a permanent post but Instructor (Computer) is of ex-cadre and the applicant "is enjoying Teaching Allowance through Ex-cadre Post."
(iii) Teaching Allowance was paid from February, 1993 till superannuation, but recovery was ordered since 1992.
15 0.A. 1234 of 2020
(iv) Board has sought clarification why the act of Vigilance department in 'this case should not be treated as 'excess and why action against the Vigilance officials involved should not be initiated.
10. The applicant has cited the following decisions to strengthen his argument that recovery was not proper. He would refer to the following:
"(1) Civil Appeal No. 3351-3354, 3355,3364 of 2003 Syed Abdul Qadir & Others Vs. State of Bihar & Others by Hon'ble Supreme Court rendered on 16.12.2008.
(2) Appeal (Civil) No. 4386 of 2006 Purshottam Lal Das and others Vs. State of Bihar and Others by Hon'ble Supreme Court rendered on --
10.10.2006.
(3) Civil Appeal 'No. 1995 SCC Supl (1) 18JT 1995(1) 24 Sahib Ram Vs. State of Haryana and Others rendered on 19.09.1994.
(4) 1994 SCR (1)700, 1994 SCC (2) 521 Shyam Babu Verma Vs Union of India of Hon'ble Supreme Court rendered on 08.02.1994.
(5) Civil appeal No. 7237 of 2008 State of Bihar & Others Vs. Pandey Jagadishwar Prasad, Judgement of Hon'ble Supreme Court rendered on 11.12.2008."
_(6) MP Medical Officers Association -Vs- State of Madhya Pradesh & Ors. Civil appeal No. 5527 of 2022 where Hon'ble Apex Court noted that the members of the appellant association, who were serving as Specialists, Dental Specialists and officers in the specialist's cadre got same monetary benefits under a circular dated 23.05.2009. It was the Department/State, who issued the circular dated 23.05.2009 and paid the benefits under the ----
circular dated 23.05.2009 to the members of the appellant association, which subsequently came to be withdrawn by the State in the year 2012. Therefore, as such, there was neither any misrepresentation on the part of the concerned employees members of the appellant association nor can the mistake be attributed to them. The mistake, if any, can be said to be that of the Department/State, who issued the circular dated 23.05.2009 under which the members of the association were given certain benefits till the same was withdrawn in the year 2012. Therefore, in the peculiar facts and circumstances of the case, the State was not justified in ordering recovery of the excess amount paid along with the interest. Hon'ble High Court ordered: .
"The impugned judgment and order passed by the Division Bench of the High Court upholding the recovery of the excess amount paid alongwith interest is hereby quashed and set aside.
16 0.A. 1234 of 2020 In result, there shall not be any recovery of the excess amount. paid a pursuant to the circular dated 23.05.2009 till the same was withdrawn on 30.05.2012. However, for all other purposes including the pay fixation and pension etc., the same shall be now worked out as per the order dated 26.08.2008, as if, the circular dated 23.05.2009 was never issued."
11. In Thomas Daniel -Vs- State of Kerala & Ors. rendered on 2.5.2022 the Hon'ble Apex Court referring to the above decisions, observed that --
"(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such: .
excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity."
XXX XXX XXX In Sahib Ram v. State of Haryana and Others 1995 Supp (1) SCC 18 this Court restrained recovery of payment which was given under the upgraded pay scale on account of wrong construction of relevant order by the authority concerned, without any misrepresentation on part of the employees. .
XXX XXX XXX In Col. B.J. Akkara (Retd.) v. Government of India and Others (2006) 11 SCC 709 this Court considered an identical question as under:
"27. The last question to be considered is whether relief should be granted against -- the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6- 1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are _ fulfilled (vide Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248], Shyam Babu Verma v. Union of India [(1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121] , Union of India v. M. Bhaskar [(1996) 4 SCC 416:
1996 SCC (L&S) 967] and V. Gangaram v. Regional Jt. Director [(1997) 6 SCC 139: 1997 SCC (L&S) 1652] ):
(a) The 'excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong 11 SCC 709 interpretation of rule/order, which is subsequently found to be erroneous.
12.
17 0.A. 1234 of 2020 XXX XXX XXX In Syed Abdul Qadir and Others v. State of Bihar and Others (2009) 3 SCC 475 excess payment was sought to be recovered which was made to the .
appellants-teachers on account of mistake and wrong interpretation of prevailing Bihar Nationalised Secondary School (Service Conditions) Rules, 1983. The appellants therein contended that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount should not be recovered from them, it having been paid without any misrepresentation or fraud on their part. The Court held that the appellants cannot be held responsible in such a situation and recovery of the excess payment should not be ordered, especially when the employee has subsequently retired.
XXX XXX XXX In State of Punjab and Others v. Rafiq Masih (White Washer) and Others wherein this court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. This Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and 4 (2015) 4 SCC 334 disallowed the same, exempting the beneficiary employees from such recovery.
XXX XXX XXX In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.
_ (15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified."
In the aforesaid backdrop it is noted that the recovery was not proper.
Coming to the Boards' circular on the subject Training Allowance, it is categorical that the allowance is admissible only to such employees who join the training establishments for a specified period and are then likely to go back. It is not admissible to those who are directly recruited by such training establishments for imparting training.
13. Further, Training Allowance is admissible to the faculty members without any ceiling of 5 years and standard cooling off period between tenures, apply.
. . 18 0.A. 1234 of 2020 (Authority:- Railway Board's letter No. E(MPP)2012/3/28 dated 06.10.2017:
RBE No.145/2017) RBE 26 OF 2000 stipulates --
"Kindly refer to this Ministry's letter No.E(MPP)/94/13/4 dated 20.9.95 wherein sanction of the Ministry of Railways was communicated for grant of training allowance to the various training centers.
The Ministry of Railways had been considering the question of extending the Benefit of grant of training allowance to the faculty members of other training centers. It has now been decided that faculty members, both gazetted and nongazetted, drawn on deputation from the field for the purpose of imparting training.
XXX XXX XXX
5. The following guidelines should be observed for sanction of the training allowance.
(a) Faculty members, both gazetted and non gazetted, who are drawn on deputation from the filed and whose duty is to impart training/education to the trainees may be granted "Training Allowance" at the rate of 15% of the basic pay in the revised scaled of pay. xxx and (c) Faculty means "An employee" of the Government who joins a training institute meant for training government officials as a faculty member and whose work is to impart training/teaching. This will also include the principals of the training institutes."
Admittedly and indubitably the applicant was a regular Console Operator who was drafted/ deployed to perform duties of an Instructor, which arrangement is as good as a deputation. He was not a regular Instructor but he "served as one. As such he was considered eligible for training allowance.
RBE 21 of 2003 also enjoins that from 1.1.2003, the faculty members, both gazetted and non-gazetted, drawn on deputation from the field for the purpose of imparting training may be granted Training Allowance @ 15% in terms of :
extant orders.
. months with interest @ 6% p.a. No costs.
19 0.A. 1234 of 2020 Ideally this provision also allowed the applicant the right to training allowance. AS such recovery of the training allowance, that he was rightly granted, was unreasonable, arbitrary and bad.
14. In the aforesaid backdrop, having discerned that the applicant held the post of Console Operator a single cadre post, but was drafted to perform the Job of Training at ZRT! Bhuli as an Instructor not on regular basis, it is held that training allowance was rightly given to him from 1993 till his transfer and hence the Railways shall refund the entire recovered amount not only because of the Board's provision but also due to the precedents enumerated above, within 2- w/ ° (Bidisha Banerjee) Judicial Member drh