Central Administrative Tribunal - Patna
Ram Lakhan Sah vs East Central Railway on 29 May, 2024
1 O.A. No. 050/000388/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/000388
388/2022
Date of Order: 29.05.2024
CORAM
HON'BLE SHRI AJAY PRATAP SINGH
SINGH, MEMBER (JUDL)
1. Ram Lakhan Sah, (Mobile No. 8877904433) Son of Late Janak Sah,
Employment No. 27410479430, P.F No. 10479430, Resident of Village
Mastalipur, P.O. Bochaha, P.S. Mohiuddin Nagar, District - Samastipur,
PIN--848503
848503 retired on 30.06.2021 from the post of Track Maintainer,
Grad 1, Grade Pay Rs. 2800/-
Grade
.......... Applicant.
By Advocate :-: Shri Gautam Saha
-Versus-
1. The Union of India through the General Manager, East Central
Railway, Hajipur, Vaishali, PIN-844101.
844101.
2. Divisional Railway Manager,
Manager, Danapur Division, East Central Railway,
Khagaul, Danapur, PIN-801503.
PIN
3. Senior Divisional Personnel Officer
Officer,, Danapur Division, East Central
Railway. Khagaul, Danapur, PIN-801503.
PIN 801503.
4. Senior Divisional Finance Manager
Manager,, Danapur Division, East Central
Railway. Khagaul, Danapur, PIN-801503.
801503.
5. Senior Section Engineer (P-Way),
(P , Biharsharif, Danapur Division, East
Central Railway, Patna Junction, PIN-803101
PIN 803101
.......... Respondents.
By Advocate :-Shri
: Shri H.P. Singh, Sr.CGSC
ORDER (ORAL)
AS PER : AJAY PRATAP SINGH, MEMBER (J)
1. By way of present Original Application under section 19 of the Administrative Tribunals Tribunal Act, 1985, seeking direction to issue revised PPO, after reckoning Qualifying service period of 32 years 5 months on the basis of average pay @ Rs.39680/ Rs.39680/-.. So also to pay composite Transfer Grant (in short CTG) and salary for month of June 2021 as Rs.40,400/ Rs.40,400/-,, refund recovered amount Rs.1 Rs.18034/- alongwith arrears with 18% interest in view of law laid down in case of Vijay L. Malhotra Vs State of U.P, (2001) 9 SCC 687.
2. Shorn of unnecessary details, briefly stated facts as adumbrated by applicant that applicant was initially appointed on 2 O.A. No. 050/000388/2022 07.03.1980 as Casual Gangman/Trackman in the construction project and granted time scale pay on 01.01.198 01.01.1981 and conferred with Temporary Status with effect from 01.01.1984. Regularized on 29.12.1997 on Group 'D' post of Gangman thereafter redesignated as Trackman. Hon'ble Supreme Court in case of Union of India & ors versus Rakesh Kumar, (2017) 13 SCC 388 has held that casual worker after oobtaining btaining temporary status is entitled to reckon 50% of his services till regularized on regular/temporary post. Casual labour before obtaining temporary status is also entitled to reckon 50% casual service for purposes of pension on appointment as regular employee entitled to reckon 100% period of service for pensionary benefits till date of superannuation as per Rule 20 of Railway Servants (Pension) Rules 1993 (In short Rules, 1993). Railway
3. It is also the case of applicant that respondents have not correctly reckoned reck Qualifying service and total casual service rendered from 07.03.1980 engaged casual worker till date 01.01.1984 of grant of temporary status. Applicant is entitled for last month pay Rs.40,400/ Rs.40,400/- instead of Rs.39,200/- and average of last 10 months comes to Rs.39 Rs.39,680/- whereas illegally calculated pensionary benefits on average pay of Rs.39, Rs.39,200/-.
. Applicant is entitled to count more than total service for pension, 32 years 05 months, whereas counted 27 years and 05 months.
4. Applicant also made averments that oon n shorter period of qualifying service 27 years and 05 months instead actual qualifying service of more than 32 years and 05 months, calculated lesser average pay Rs.39,200/ Rs.39,200/- instead of Rs.40,400/-- and original monthly pension ought to be Rs.19,600/- instead of Rs.11,760/ and all other pensionary benefits granted. Applicant Rs.11,760/-
superannuated on 30.06.2021 but till date respondents not started disbursement of monthly pension of applicant and no provisional pension disbursed.
5. Applicant also made averments in OA that respondents illegally deducted Rs.18034/-
Rs.18034/ from pensionary benefits and same is 3 O.A. No. 050/000388/2022 impermissible being retired as Group ''D' employee, there is no misrepresentation or fraud.
6. Per contra, respondents have contested the claim of applicant by filing written statement with service book extract and service verification calculation sheet filed as Annexure R/1 and R/2 verification-
respectively. Applicant date of engagement stated 25.07.1989 granted temporary status on 25.07.1989 and regularized /absorbed on 29.12.1997 and superannuated on 30.06.2021. Qualifying service counted 27 years 005 months and 18 days. It is also stated that settlement dues including PF amount and CTG paid. The temporary status has been conferred w.e.f. 29.07.1989 whereas applicant initially initially worked in construction project. Since there is entry in service book, initial engagement from temporary status w.e.f. 25.07.1989 and qualifying services reckoned accordingly. P.F. P. . amount already been paid and salary dated 03.11.2021 paid @ Rs.53,80 Rs.53,806/-, included CTG not entitled for payment of C.T.G.
7. Rejoinder has been filed denying adverse averments made in written statement. Applicant stated that for purposes of reckoning qualifying service, as evident from service book extract filed as Annexure R/1, R/1, initial appointment shown as on 07.03.1980 also shown from pay bill dated February, 2016 at page 42 of O.A. Total service from initial date of appointment i.e 07.03.1980 till regularization of his service i.e 01.01.1984 is 03 years, 09 months and 25 days. 50% of period TS i.e. 01.01.1984 to 29.12.1997 date of regularization as qualifying service with 100% period of service from 29.12.1997 till 30.06.2021 Total qualifying service of applicant for calculation 30.06.2021.
of pensionary benefits benefits comes out to be more than 32 years and 05 months.
months
8. Sum and substance of case of applicant claiming to count T.S. granted since 07.03.1980 to 01.01.1984 correctly as per record as to casual service period as 50% and rest of total period from T.S. on on 01.01.1984 to 29.12.1997 as 50%. Applicant is seeking re calculation of correct period of Qualifying service more than re-calculation 4 O.A. No. 050/000388/2022 32 years and 05 months for pensionary benefits and resultantly refixation of pension and recalculation with payment of arrears of pension pension and pensionary benefits.
9. Shri G. Saha, learned counsel for applicant contended ::-
(
(i) Applicant worked from 07.03.1980 till 30.06.2021 30.06.2021,, T.S. on 01.01.1984 and regularized on 29.12.1997. In view of law laid down in case of Rakesh Kumar (supra) applicant is entitled for reckoning total Qualifying service to more than 32 years 05 months.
(
(ii) Applicant average emoluments for last 10 months comes out to be @ Rs.39,680/ 0/- from September 2020 to February, 2021 Rs.39,200/ Rs.39,200/- and Rs.40,400/- from March to Jume 2021 and retired tired on 30.06.2021 30.06.2021.. Respondents ought to have re-calculated calculated average to Rs. 39,680/ 39,680/- but taken as Rs.39,200/- and reduced pension from Rs.19,600/- to Rs.11,760/--
(
(iii) Respondents have arbitrarily deducted Rs.18,034/ Rs.18,034/- as evident from PPO as over payment without any notice and no misrepresentation or fraud on his part. (
(iv) Respondents also not paid C.T.G, June 2021, Rs.40,400/ Rs.40,400/-,, date of retirement i.e 30th June, 2021.
10. Shri H.P. Singh, learned Senior Central Government Standing Counsel argued :-
:
(
(i) Applicant initially worked in construction project and was granted temporary status w.e.f. 225.07.1989, .07.1989, regularized on 29.12.1997 and superannuated on 30.06.2021.
(
(ii) For reckoning Qualifying service for pension 50% of period after obtaining temporary status ttill ill date of regularization. 100% service period from date of regularization i.e. 29.12.1997 till 30.06.2021 superannuation counted accordance with Rules 1993 and law laid down in case of Rakesh Kumar (supra) (supra).
(
(iii) Pension of applicant fixed on average of last ten months emoluments on last pay drawn Rs.39,200/ Rs.39,200/- and same was duly verified and amended before calculation.
5 O.A. No. 050/000388/2022(
(iv) Applicant was credited Rs.53,806/ Rs.53,806/- with C.T.G. on 03.11.2021, last month salary and no claim for C.T.G is tenable.
11. Heard. This Tribunal has besto bestowed wed anxious considerations on the rival contentions of learned counsel appearing for the parties and perused the material placed on record and service book and service file of applicant.
12. Applicant worked as casual labour in construction project and Applicant Railway respondents counted services from 225.07.1989 date of Railways grant of temporary status. Services regularized on 29.12.1997 and superannuated on 30.06.2021.
13. Dispute in the present case that stand of applicant that respondents are duty bound to count 50% period of service from 07.03.1980 i.e. date of initial appointment as casual worker till date of obtaining temporary status on 01.01.1984 as per service record. Total period of casual service not been reckoned record.
towards qualifying service and applicant is drawing less pension towards and paid reduced amount of pensionary benefits.
THE ISSUE
14. From above submissions of learned counsel appearing for parties and material placed on record record,, service book, service file, relevant rules to decide controversy relates to counting of Qualifying service rendered as casual service, recovery already made. The core issues arise for consideration ::-
(
(i) Whether applicant is entitled for reckoning qualifying service a period of 50% services rendered as casual worker from 07.03.1980 before obtaining temporary status as on 01.01.1984, which was granted by respondents as per Note 1 of Rule 31 of Pension Rules, 1993 and as per ratio laid down in case of Union of India versus Rakesh Kumar (supra) ?
(
(ii) Whether applicant is entitled to reckon qualifying service a period of 50% of service from date of obtaining temporary status i.e. 01.01.1984 till date of regularization 6 O.A. No. 050/000388/2022 i.e 29.12.1997 and further 100% period of service from date of regularization till da date te of superannuation i.e. 30.06.2021 ?
(
(iii) Whether applicant is entitled for refund of already recovered amount Rs.18034/ Rs.18034/- as over payment due to refixation of pay after retirement ? (
(iv) Whether applicants amount of pension etc has been calculated accordance with sub sub-Rule Rule (2) of Rule 69 of Rules, 1993 and also C.T.G. already paid being justified ?
15. Before dealing with rival contentions advances at the Bar. It is apposite to quote relevant portion portion of rule of law, binding precedents, relevant extract of service book to resolve the controversy.
(A) So far as reckoning period of service in case of railway employees for pensionary benefits. The issue is no more res-integra.
res integra. The Hon'ble Supreme Co Court in case of Union of India Versus Rakesh Kumar, reported in 2017 (13) SCC 388: AIR 2017 Supreme Court 1691 was seisin with only issue :
"Whether the entire service of a casual worker after obtaining temporary status till his regular absorption on a post is entitled to be reckoned for pensionary benefit or only 50% period of such service can be reckoned for pensionary benefits."
22. From the above submissions of the learned counsel for the parties and materials on record, the only issue which arises for consideration in these appeals is:
Whether the entire services of a casual worker after obtaining temporary status till his regular absorption orption on a post is entitled to be reckoned for pensionary benefit or only 50 per cent period of such service can be reckoned for pensionary benefit?
23. In so far as reckoning of 50 per cent casual period, there is no challenge and it is clear that the said reckoning is in accordance with Rule 31 of Rules, 1993 and the benefit of said 50 per cent services of casual period had already been extended to the respondents. Thus, we need to answer in these appeals the only question as noted above.
25. Para 20 of the Master Circular No. 54 is quoted as below:
below:-
"20. Counting of the period of service of Casual Labour for pensionary benefits: Half of the period of service of casual labour (other than casual labour employed on Projects) after attainment of temporartemporaryy status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, 1981, the benefit has also been extended to Project Casual Labour."7 O.A. No. 050/000388/2022
26. Next Provision need to be noted is Para 2005 of IREM, which is as follows:-
"2005 IREM:
2005. Entitlements and privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be).
(a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of D & A rules. However, their service prior to absorption in temporary/ permanent/regular cadre admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits.
27. Railway Services (Pension) Rules, 1993 have been framed under proviso to Article 309 of the Constitution of India. Rule 20 and Rule 31 of Rules, 1993 which are relevant for our purpose, are extracted as below: -
"20. Commencement of qualifying service service- Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post:
Provided further that-
( in the case of a railway servant in a Group 'D' service or post who held a lien
(a) or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; and
(b) in the case of a railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity."
"31. Counting of service paid from Contingencies Contingencies- In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following condition namely: -
the service paid from contingencies has been in a job involving wholetime employment;
the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;
the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(b) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break;
Provided that the weightage for past service paid from contingencies shall be limited to the period after Ist January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service service--
book is available.
8 O.A. No. 050/000388/2022NOTE-(1) the provisions ions of this rule shall also apply to casual labour paid from contingencies.
(2) The expression "absorption in regular employment" means absorption against a regular post.
28. The perusal of para 20 of the Master Circular indicates that only half
30. The above heading enumerates the privileges admissible to casual labour who are treated as temporary. Clause(a) of para 2005 provides: "
Casual labour including Project casual labour shall be eligible to count only half the period of service rendered by th them em after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits."
35. The Judgment of this Court in Chanda Devi's case(Supra) considered red the nature of employment of casual labour who was granted temporary status.
In the above case, Smt. Santosh, the respondent was widow of Sh. Ram Niwas who was a project casual labour. Under the scheme framed by Union of India in pursuance of order of this court in Inderpal Yadav Vs. Union of India, 1985 (2) SCC 648, Ram Niwas was treated as temporary employee w.e.f 01.01.1986. After the death of Ram Niwas, her widow filed the claim for grant of family pension which was rejected by the Railway against w which hich the widow approach the Central Administration Tribunal. The Tribunal allowed the claim, Writ Petition filed by Union of India was dismissed by the Rajasthan High Court against which the appeal was filed. After referring to Rule 2001, Rule2002 and Rule 2005 of IREM, this Court held that Rule 2005 clearly lays down the entitlement and privileges admissible to casual labour who are treated as temporary i.e. given temporary status.
36. This Court further held that there is a distinction between the casua casuall labour having a temporary status and temporary servant, para 24 of the judgment is relevant which is quoted as below:
"24. The contrast between a casual labour having a temporary status and a temporary servant may immediately be noticed from the definit definition ion of a temporary railway servant contained in Rule 1501 occurring in Chapter XV of the Manual:
"1501.(i) Temporary railway servants Definition- A 'temporary railway servant' means a railway servant without a lien on a permanent post on a railway or any other administration or office under the Railway Board. The term does not include 'casual labour', including 'casual labour' with temporary status', a 'contract' or 'part time' employee or an 'apprentice'."
39. Much reliance has been placed by learned counsel for the respondent as well as Delhi High Court on rule 20. Rule 20 provides:
20... Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointedinted either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post..."
40. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to tthe he post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in para 2005 of IREM. One of the benefits efits enumerated in para 2005 sub clause(a) is also to make him eligible to 9 O.A. No. 050/000388/2022 count only half of the services rendered by him after attaining temporary status. Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purposes of pension."
42. The above Proviso has to be read along with the main Rule 20, when main Rule 20 contemplates commencement of qualifying service from the date he takes charge of the post, the appointment to a post is implicit and a condition precedent. The proviso put another different condition that officiating or temporary service is ffollowed, ollowed, without interruption, by substantive appointment in the same or another service or post. The proviso cannot be read independent to the main provision nor it can mean that by only grant of temporary status a casual employee is entitled to reckon hihiss service of temporary status for purpose of pensionary benefit.
43. The Delhi High Court in impugned judgment has not relied the subsequent judgment of Andhra Pradesh High Court in A.Ramanamma dated 01.05.2009 and did not follow the judgment of this cou court rt in Chanda Devi case (Supra) on the ground that Rule 20 specifically the proviso has not been considered. This Court in Chanda Devi's case did not refer to Rule 20 since Rule 20 had no application in the facts of that case because the appointment of husband of respondent in Chanda Devi's case was not against any post. Rule 20 being not applicable non-reference reference of Rule 20 by this Court in Chanda Devi's case is inconsequential. In para 8 of the impugned judgment, the Delhi High Court for not relying on A.Ramanamma manamma and Chanda Devi case gave following reasons:
"8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra) Ramanamma(supra), with respect, does not declare the correct law. Though the judgment has considered certain pprevious revious rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specificallyly deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantivel substantivelyy to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension."
44. The judgment of Andhra Pradesh High Court in A.Ramanamma case had considered in detail the judgment of this Court in Chanda Devi's case as well as Para 20 of Master Circular and para 2005 of IREM and has also considered other case of this Court and has rightly come to the conclusion that casual labour after obtaining temporary status is entitled to reckon only half of the period.
od. It may, however, be noticed that in A. Ramanamma case the Andhra High Court has also held that 50% of service as casual labour cannot be counted, which is not correct. Rule 31 of Rules, 1993 provides for counting of service paid from contingencies. NotNote 1 of Rule 31 provides:-
"The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies."
45. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct law.
46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and su such ch contingency is not covered by Rule
(i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension.
10 O.A. No. 050/000388/2022(ii)the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
(iii)
iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are ent entitled itled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.
[Emphasis Supplied] (B) (i) Hon'ble Supre court in case of Rafiq Masih (white washer) and others (supra).
(supra) Their Lordships in paragraph 18 held as under :-
""18.
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 decisions 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 III and Class IV service (or Group C andnd 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 b against an inferior post.
(iv) 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 sis supplied]
(ii) Hon'ble Supreme court in case of Thomas Daniel versus State of Kerala & ors, 2022 SCC Online 536 536,, seisin with similar issue recovery from pensionary benefits held as ::-
"9.This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation of 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, exercising judicial discretion tion to provide relief to the employees from the hardship that will be caused if the recovery is ordered. The Court has further held that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was duee or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amountt paid in excess."11 O.A. No. 050/000388/2022
"13. In State of Punjab v. Rafiq Masih (White Washer) wherein this court examined the validityof 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 used to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:
"8. As between two parties, if a determination is rendered in favour of the party, whichich is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, proper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would ought balance, and therefore eclipse, the rrightight of the employer to recover.
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 m may, ay, based on the decisions 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 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 require required d 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 empl employer's right to recover."
[Emphasis Supplied]
(iii) Hon'ble Supreme Court in case of Syed Abdul Quadir versus state of Bihar (2009) 3 SCC 475
475..
Relevant paragraph 58 reads as under ::-
"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 proproved ved 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 12 O.A. No. 050/000388/2022 or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, cocourts urts 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)
1) SCC 18, Shyam Babu Verma v. Union of India India, (1994) 1994) 2 SCC 521, Union of India v. M. Bhaskar Bhaskar,, (1996) 4 SCC 416, V. Ganga Ram v.
Director, (1997) 6 SCC 139, 9, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, ((2006) 2006) 11 SCC 492, Punjab National Bank v. Manjeet SinghSingh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, hadur, (2000) 10 SCC 99."
[Emphasis supplied]
16. Now coming to issue no. 1 & 2.. Respondents have also provided copy of service book and service file and also served to learned counsel appearing for applicant. Bare perusal of service record reveals that casual labour card was issued on first date of appointment i..e 07.03.1980 and date of initial engagement recorded as 07.03.1980.
07.03.1980
17. Service particulars of applicant was verified at time of conferment of temporary status to applicant and temporary status based on 01.01.1981 and initial appointment recorded 07.03.1980. Respondents has vverified erified service particulars in connection with awarding temporary status to applicant based on 01.01.1981 and document is signed dated 17.04.1990 and attested by A.P.O., ECR, Danapur as provided with service file of applicant at page no. 20, date from whic which h temporary status will be effected recorded 01.01.1984/25.07.1989. Based on service record of applicant as casual service, respondents examined status of service applicant as on 01.01.1981 for awarding temporary status and already recorded date of effect for temporary status 01.01.1984. This is T.S. w.e.f. 01.01.1984 granted and to be taken as correct entry, calculated for T.S. This Tribunal can safely held based on service record file and document dated 17.04.1990 for all purposes applicant date of grant of temporary status to be taken as 1st January 1984 and applicant is held entitled for reckoning his casual services for pension purposes from 07.03.1980 to 01.01.1984 as casual service and thereafter from 01.01.1984 i.e. T/S and from 01.01.1984 T/S till 29.12.1997 i.e. date of regularization till 01.01.1984, 30th June 2021 date of superannuation. Applicant is held entitled for reckoning service period for qualifying service period for 13 O.A. No. 050/000388/2022 qualifying service as supra based on respondents service book/service file and respondents not correctly verified service record wrongly entered T.S. w.e.f. 25.07.1989 25.07.1989.. The calculation sheet/check list for Qualifying service of applicant at page 62 of service file dated 13.07.2017 has incorrect date of T.S. on 25.07.1989 as per own record, record, temporary status granted w.e.f. 01.01.1984, there is calculation sheet form for grant of T.S as 01.01.1984, 01.01.1984. Respondents are directed to and grant benefit of 01.01.1984.
service rendered as temporary status casual labour w.e.f. 01.01.1984 and consequences shall follow.
18. Deputy Chief Chie Engineer (construction) Samastipur vide office order 29.12.1997 regularised services of applicant against Group 'D' regular post in Gangman with scale of pay Rs.2610/ Rs.2610/-3540/--
and applicant name is at serial no. 19 with date of initial appointment in Group 'D' casual labour recorded in columnno.6 appointment 7th as March 1980. Railways have issued 'A' card for pensionable staff for applicant and date of first appointment recorded 07.03.1980/29.12.1997.
19. Relevant extract of service book for qualifying services to be counted from प सं या -E/04/सत ् /2021 के अनुसार इनका वेतन संसोधन िन न कार से कया जाता है Already paid/drawn Should be drawn Rs. 37,500 - 01.07.2019 Rs.37,500 - 01.07.2019 RS. 38,100 - 11.07.2019 Rs. 38,100 - 11.07.2019 Rs. 40,400 - 01.07.2020 Rs. 39,200 - 01.07.2020 दं डो एंड अपराधअथवा ािधकार भा वतो सा यांकन करने वाले िसफा रसो का घटना क Authority क तक अिधकार संिछ ववरण क म अवधी केह ता र Brief particular Nature of Period To एवं ितिथ of punishment Officence Signature of or and events of commendation effect attesting Se officer From with date 14 O.A. No. 050/000388/2022 He is Going to be retired from Ra Railway ilway Service from 30.06.2021.
He is absentee. Period has been regularized . There is no break He in service. Qualifying service from 07.03.1980 to 30.06.2021 has been verified. Accept LWP period 22 days GIS recovered from 07.03.1980 to till 30.06.2021 Rs.30/ Rs.30/-
Last pay : 39200/-
Sd/- Sr. Section Engineer
Sahayak mandal East Central Railway, Bihar Sharif
Purv Madhya Rail Rajgir
This Tribunal has already extracted relevant portion of entry in service book and respondents certified on 25.05.2021 that for qualifying services from 07.03.1980 to 30.06.2021, verified and last pay Rs.39,200/-
Rs.39,200/ and on top of page amendment in pay w.e.f. 01.07.2020 @ Rs. 39200/-
39200/- already carried.
20. Issue no. 1 is decided in favour of applicant and respondents are hereby directed to compute period of casual service from date of initial appointment appointment 07.03.1980 till 01.01.1984 date of effect of grant of temporary status i.e. 01.01.1984 01.01.1984.. Thereafter from 01.01.1984 T/S till 29.12.1997, date of regularization as 50% qualifying service as temporary status service. Hon'ble Supreme Court in latest decision of Rakesh Kumar (supra) has settled legal preposition that casual worker after obtaining temporary status till he is regularized so also for casual service for purposes of pension entitled to reckon 50% of his services. So also their Lordships held that those casual workers who are appointed to any post either substantively or in temporary capacity are entitled to to reckon entire i.e 100% period from taking charge to such post as per Rule 20 of Rules 1993.
21. Issue no. 1 & 2 decided decided in favour of applicant. Applicant also held entitled for all consequential benefits after reckoning qualifying services as supra.
supra
22. Now coming to Issue no. 3, issue related to recovery of Rs.18034/ as over payment, entries of service book Rs.18034/- book, verified pursuant to letter of Senior Divisional Finance Manager, ECR, pursuant Danapur, Senior Section Engineer (P.Way) Patna vide letter 15 O.A. No. 050/000388/2022 dated 17.05.1917 informed Sr. D.F.M. Danapur that pay pay-fixation fixation carried out on 01.07.2006 was re re-checked and anomaly traced in fixation of pay as on 01.07.2006 and same has been corrected. Admittedly on record clear from above letter 17.05.2017 by Sr. SSE (P.Way) to Sr. D.F.M contained at page 40 service file provided to this Tribunal, no notice to applicant was issued before correction in pay fixation carried out on 01.07.2006. So also no undertaking on said date is annexed with record of dated 01.07.2006.
23. Applicant has made specific averments in sub para 4.8 of main para 4- facts of the case of OA that respondents deducted on over payment (O.P.) amount of Rs.18,034/ Rs.18,034/- from pensionary benefits as apparent from PPO issu issued ed on 30.06.2021 Annexure A/1, Respondents has filed parawise reply to sub-para para 4.8 of para 8 of OA and stated ted that accordance with sub sub-rule rule (2) of Rule 15 of Rules, 1993, any outstanding dues can be adjusted, recovered from gratuity and as per sub sub-rule rule (4) of Rule 15 of Rules 1993, 1993 overpayment on account of pay and allowances or other dues can be regularized. As extracted service book in paragraph 19 of this order on top of this page, respondents vide letter no. E/04/Satt./2021 amended pay of applicant Rs.40400/ Rs.40400/--
paid on 01.07.2020 should be drawn, amended reduced pay @ Rs.39200/ as on 01.07.2020. The last pa Rs.39200/- pay y drawn corrected to Rs.39200/ dated 01.07.2020 instead of earlier fixed on Rs.39200/-
Rs.40400/ . So also recovery of over payment is calculated on Rs.40400/-.
erroneous pay fixation. No notice serv served prior to amendment in pay.
24. So far recovery of Rs.18,034/-
Rs.18,034/ as over-payment is concerned, amount has been found to be over over-payment payment on erroneous fixation of pay carried on 01.07.2006 same was pointed out by office of Danapur and corrected vide letter dated 17.05.2017 as evident sent by Sr. Section Engineer (P.Way) Patna and before retirement in 2021.
2021. There is neither any misrepresentation nor any fraud alleged and recovery after retirement from applicant Group 'D' employee is impermissible in law. Hon'ble Supreme 16 O.A. No. 050/000388/2022 court in case of Syed Abdul Qadir, Rafiq Masih and Tohmas Daniel (supra) (sup already settled legal preposition that recovery from retired employee when excess has been paid due to erroneous fixation and not by any misrepresentation or fraud is impermissible in law.
25. Issue no.3 is decided in favour of applicant and applicant is hheld eld entitled for refund of Rs.18,034/ Rs.18,034/- (Rs eighteen thousand and thirty four) as effecting recovery is unjustified unjustified.
26. Now coming to next issue no.4 related to amount of pension and calculation. Rule 49- of Rules 1993 provides for emoluments for purpose of calculating calculating various retirement benefits means basic pay. So also Rule 50 of Rules 1993 provides for average emoluments shall be determined with reference to the emoluments drawn by a railway during last 10 months of his service.
27. Sub Sub-Rule (2) of Rule 69 of Rules, les, 1993 specifically lays down in case as on hand for calculation of pension amount of pension shall be calculated at 50 per cent of emoluments or average emoluments, whichever is more beneficial to him.
28. Now applying the above provisions of Rule 69 (2) of Rules 1993 for calculation of pension to applicant applicant.
29. As evident from entries in service book (page no. 75 of service book) respondents have amended pay of applicant vide letter no. E/04/5 att./2021 as under :
Already paid/drawn Should be drawn
Rs. 37,500 - 01.07.2019 Rs.37,500 - 01.07.2019
RS. 38,100 - 11.07.2019 Rs. 38,100 - 11.07.2019
Rs. 40,400 - 01.07.2020 Rs. 39,200 - 01.07.2020
30. Sub Rule (2) of Rule 69 of Rules 1993 provides that in all Sub-Rule cases of retirement with a qualifying service of ten years and above, pension will be 50% of the average of emoluments drawn during the last ten months preceding the date of retirement OR 17 O.A. No. 050/000388/2022 50% of emoluments drawn on the date of retirem retirement, ent, whichever is beneficial.
31. Applicant drawing pay as amended since 01.07.2020, pay @ Rs.39,200/ and as analysed above last pay @ Rs.39,200/ Rs.39,200/- Rs.39,200/- and average pay comes out to be Rs.39,200/ Rs.39,200/- and respondents correctly fixed original pension Rs.19,600/ Rs.19,600/- w.e.f. 01.07.2021 and same is upheld.
32. So far as claim of applicant related to non non-payment payment of Composite Transfer Grant of June 2021. Respondents has categorically explained and justified in para 21 of written statement that applicant last salary paid inclusive C.T C.T.G .G tune of Rs.53,806/ on 01.11.2021 and applicant canot claim C.T.G. Rs.53,806/-
This Tribunal is of considered opinion that applicant claim to C.T.G is misconceived and meritless.
33. Issue no. 4 related to fixation of amount of pension is in accordance with sub-rule (2)) of Rule 69 of Rule 1993, and C.T.G paid and same is justified, there is no legal infirmity and the issue is decided in favour of respondents against applicant.
34. As evident from pleadings on record, applicant superannuated on 30.06.2021 and P.P.O. was iss issued ued on 07.07.2021 but respondents have neither started disbursing monthly pension payable since 1st July 2021 nor granted provisional pension pension.. The applicant has been agitating through representations filed as Annexure A/4 dated 05.08.2021, 16.04.2022, 19.0 19.04.2022.
4.2022.
Thereafter Sr. D.A.O., ECR, Danapur vide letter dated 25.04.2022 (Annexure A/9) informed to the Central Bank of India, Hajipur, Cinema Road, District District- Vaishali to start disbursing monthly pension. Respondents have not started crediting amount of monthly monthly pension since July 2021.
35. Hon'ble Supreme Court in case of Vijay L. Mehrotra versus State of U.P. & Ors (2001) 9 SCC 687 held:-
"3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retial benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
4. In this case, there is absolutely no reason or justification for not making the payments ts for months together. We, therefore, direct 18 O.A. No. 050/000388/2022 the respondents to pay to the applicant within 12 weeks from today with simple interest at the rate of 18% with effect from the date of her retirement i.e. 31.08.1977 till the date of payment.
[Emphasis Supplied]
36. Hon'ble Supreme Court in case of O.P. Gupta versus Union of India & Ors (1987) 4 SCC 328, Their Lordships seisin with issue is the applicant entitled to interest on the delayed payment of his pension pen ? Their Lordships observed as:
as:-
"24. Normally, thiss Court, as a settled practice, has been making direction for payment of interest at 12% on delayed payment of pension. There is no reason for us to depart from that practice in facts of the present case."
[Emphasis Supplied] In view whereof, there is inordinate delay in disbursing off monthly pension. Delay of almost three years from the date of entitlement and there is miscarriage of justice and applicant is held entitled for interest-payable interest payable by respondents.
CONCLUSION
37. This Tribunal has already analysed in details the issues in light of aforesaid analysis.
38. Accordingly findings on issue no.1 & 2 is decided in favour of applicant. Applicant is held entitled in light of Note Note-1 of Rule 31 of Rules, 1993, 1993 to reckon re-calculate calculate and count to the extent of 50% period of casual service from 07.03.1980, casual labour on projects and thereafter prior to date of grant of temporary status w.e.f. 01.01.1984.
39. Finding on the issue no. 2 as reckoning of 50% of applicant service after obtaining temporary status w.e.f. 01.01.198 01.01.1984 4 till regularized i.e 29.12.1997 and applicant also entitled to reckon 100% of period of service from 29.12.1997 date of regularization/absorption till date of superannuation i.e 30.06.2021. Accordingly issue no. 2 is decided.
40. Respondents are directed to re-calculate, calculate, count qualifying services and refix pension and other pensionary benefits with arrears to be computed as per findings supra.
41. Findings on issue no. 3 is answered in favour of applicant.
Recovery of amount Rs. 18,034/ 18,034/- (Eighteen thousand thirty 19 O.A. No. 050/000388/2022 four) after retirement is unjustified and respondents are directed to refund already recovered amount to applicant within a period of 90 days from date of production/receipt of copy of order passed today.
42. Findings on issue no. 4 calculating emoluments for pension purposes and grant of C.T.G is justified , upheld and issue no. 4 accordingly decided against applicant.
43. Accordingly, as per findings supra, respondents are directed to calculate arrears of pension and pensionary benefits on refixation and pay to applicant within a period of three months from the date of receipt of order passed today alongwith interest @ of 9% (nine per cent) per annum from the date of entitlement failing which interest shall be paid @ 18% (eighteen per cent) from the date of entitlement entitlement till final payment. Respondents not yet started disbursing monthly pension, same is mis miscarriage carriage of justice and directed to start monthly pension at earliest.
44. Resultantly Original application is partly allowed and disposed Resultantly, of to the extent indicated herein-above.
herein above.
45. There shall shall be no order as to costs.
46. As a sequel; thereof, pending miscellaneous application(s), if any, shall also stands disposed of.
(AJAY PRATAP SINGH) Judicial Member Central Administrative Tribunal Patna bench, Patna mks/-