Central Administrative Tribunal - Jabalpur
Manoj Kumar Sharma vs M/O Railways on 3 July, 2023
1 O.A.No. 202/00626/2015
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTINGS :GWALIOR
Original Application No.202/00626/2015
Jabalpur, this Monday, the 03rd day of July, 2023
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Manoj Kumar Sharma
S/o Late shri Kishore Lal Sharma
Aged 46 years Occ: Service (Senior Clerk Railway)
Posted at Senior Section Engineer (E) Gwalior
R/o 61-Ganpati Vihar Gwalior (MP) -Applicant
(By Advocate -Shri S.C. Sharma)
Versus
1. Union of India, Through its
Secretary Ministry of Railway
Government of India
North Block New Delhi 11001
2. The General Manager,
North Central Railway
Allahabad (UP)
3. Divisional Railway Manager (Personnel)
Jhansi (UP) - Respondents
(By Advocate -Shri B.M. Patel)
(Date of reserving the order:13.05.2023)
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2 O.A.No. 202/00626/2015
ORDER
By Justice Akhil Kumar Srivastava, JM;
Through this Original Application applicant has prayed for the following reliefs:-
"8.1 That the Hon'ble Tribunal may kindly be pleased to allow the applicant and the order impugned dated 19.03.2015 Annexure A/1) may kindly be quashed.
8.2 That, the respondents may kindly be directed to continue the applicant in the present pay scale i.e. awarded by the order dated 11.07.2011.
8.3 That, any other relief which this Hon'ble Tribunal deems fit in the facts and circumstances of the case may kindly be awarded.
8.4 Cost of the petition may kindly be awarded.
2. The relevant facts of the case is that the applicant was appointed on the post of Assistant Driver in the pay scale of Rs.3050-4590/-. During the course of service, in the year 2000, the applicant had undergone regular medical test wherein he was found unfit and was declared as medically decategorized and was posted as Junior Clerk in the same pay scale. The applicant preferred departmental appeal challenging the pay scale as well as grant of higher pay scale after being medically decategorized. The competent authority vide order dated 11.07.2011 (Annexure A/2) awarded the Page 2 of 8 3 O.A.No. 202/00626/2015 higher pay scale of Rs.4500-7000/- and was posted as Senior Clerk from the date of joining on the post of Junior Clerk after being medically decategorised. On 06.01.2015 (Annexure A/3), a show cause notice was issued to the applicant for withdrawal of higher pay scale as well as recovery for the excess amount paid to him. The applicant submitted his reply to the said show cause notice on 10.01.2015 (Annexure A/4). He also sent his representation in reply to the notice through NCRMU/PNM but the same was not considered and was declined by the respondent department. Hence this Original Application.
3. Respondents in their reply have submitted that Shri P. M. Pandey OS/Engg ALD represented similar case then it came into notice that the Railway Boards letter dated 10.10.1999 is not applicable for medically decategorised cases. The competent authority again reopened the case and in accordance of IREM-I 1307 a show cause notice was issued and higher pay scale was withdrawn as well as recovery for the excess amount paid to him was made. It is submitted by the respondents that list of 45 employees to whom benefit was given was never submitted by the applicant therefore no interference is warranted against the Page 3 of 8 4 O.A.No. 202/00626/2015 order Annexure A/1. Further it is submitted by the respondents that the order dated 11.07.2011 was erroneously passed as the provisions of IREM-I Rule 1307 was not considered and higher pay scale was granted. Mistake so committed by the respondents came to knowledge of respondents and applicant's case was again reopened and after considering the rules and regulations show cause notice was issued.
4. Applicant in his rejoinder has submitted that Rule 1307 of IREM has no application and the benefit which was extended to the applicant vide order dated 11.07.2011 is just and proper. Respondents have failed to consider the Railway Board's letter dated 30.04.2013 (Annexure A/7) which was issued with regard to fixation of pay of disabled/medically unfit running staff on being appointed against alternative (stationary) posts in revised (6th CPC) pay structure. The applicant has relied upon the judgment of Hon'ble Apex Court in the case of State of Punjab and others vs. Rafiq Masih (White Washer) etc. reported in 2015(1) MPHT 130 SC.
5. Applicant has also submitted additional rejoinder wherein it has been stated that North Central Railway Men's Page 4 of 8 5 O.A.No. 202/00626/2015 Union was prepared wherein several examples were given of Assistant Driver pay scale Rs.3050-4590/- who were on decategorization given pay scale of Rs.4500-7000 (Shri S.K. Mishra), Shri Akhilesh Yadav Assistant Driver Pay scale Rs.3050-4590/- was given Pay scale of Rs.4500-7000 and Vinay Tiwari Assistant was given pay scale of Rs.4000-6000, Shri Shakir Ali Assistant Driver 4000-6000 was granted pay scale of Rs.5000-8000, Ramdhar 4500-7000 was granted 5000-8000. These were granted one step high pay scale on medical decategorization. Therefore screening committee was constituted and applicant was given Sr. Clerk pay scale of Rs.4500-7000. Further a show cause notice was served on 06.01.2015 i.e. after about four years. In reply to the said notice the applicant has stated that there was no post of pay scale of Rs.4000-6000 at that time therefore screening committee has recommended to grant pay scale of Rs.4500- 7000 and the provisions of Para 1307 of IREM dated 30.04.2013 is not applicable as the pay scale and post of Senior Clerk was granted w.e.f.28.02.2001 while Para 1307 is of 30.04.2013. Further the railway Board has adopted the DOPT OM dated 02.03.2016 which clearly laid down that no recovery can be made from Class C and D employee and in Page 5 of 8 6 O.A.No. 202/00626/2015 cases where excess payment has been made for a period in excess of five years before order of recovery is made.
6. Heard the learned counsel for both the parties and perused the pleadings and documents annexed therewith.
7. It is undisputed fact that the applicant was appointed as Assistant Driver and thereafter on medical decategorization was posted as Junior Clerk. On departmental appeal he was posted as Senior Clerk in pay scale of Rs.4500-7000/- by the respondents. Respondents in their reply have admitted that order dated 11.07.2011 has been passed erroneously and provisions of IREM Para 1307 has not been considered. It is seen that the provisions of IREM Para 1307 is of 30.04.2013 and the post of Senior Clerk was granted w.e.f.28.02.2001. Therefore IREM is not applicable in applicant's case. Further the case of the applicant is squarely covered by judgment passed by the Hon'ble Apex Court in the case of State of Punjab & Others vs. Rafiq Masih (White Washer) & Others reported in (2015) 2 SCC (L&S) 33 relied by the applicant that no recovery shall be made from the employees in certain conditions. The relevant portion of judgment in Rafiq Masih case is extracted hereunder:
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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.
(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.
According to the conditions applicable in the case of the applicant is that he is a Group 'C' employee. Hence Clauses
(i) is applicable in the case of the applicant. Therefore, ordering recovery from the applicant is against the legal principles laid down by the Hon'ble Apex Court cited supra. Page 7 of 8 8 O.A.No. 202/00626/2015
8. In view of the above, the present Original Application is allowed. The impugned order dated 19.03.2015 (Annexure A/1) is quashed and set aside. Respondents are directed to continue the applicant in the present pay scale awarded vide order dated 11.07.2011. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
kg/-
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