Central Administrative Tribunal - Jabalpur
Gore Lal vs Union Of India Through General Manager on 17 December, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTING: BILASPUR
Original Application No.203/00246 of 2014
Bilaspur, this Thursday, the 17th day of December, 2015
MR. G.P.SINGHAL, ADMINISTRATIVE MEMBER
MR. ARVIND J. ROHEE, JUDICIAL MEMBER
Gore Lal, S/o Late Ramcharan Lal, aged about 61 years,
R/o House No.380, Mathashree Apartment, Ward No.36,
Torwa Naka, Torwa (PS &), Bilaspur (PO & Dist),
CG State 495001. -Applicant
(By Advocate Shri K.R. Nair)
V e r s u s
1. Union of India through General Manager,
SEC Railways Bilaspur, Bilaspur Dist, CG State 495004.
2. General Manager (Vigilance), SEC Railways,
Old GMs Office Building, Bilaspur, Bilaspur PO & Dist,
CG State, PIN 495004.
3. Sr. D.E.E. (OP), Office of Sr. D.E.E. (OP)
SEC Railway, Bilaspur, Bilaspur Dist, CG State 495004.
4. Sr. Divisional Personnel Officer, SEC Railways,
Divisional Office, Bilaspur, Bilaspur (CG State) 495004 -Respondents
(By Advocate Shri R.N. Pusty)
Reserved on 15.12.2015
Pronounced on 17.12.2015
O R D E R
Per Arvind J. Rohee, Judicial Member.-
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 being aggrieved by the impugned orders dated 27.9.2013 and 20.06.2013 (Annexure A-1 colly.) passed by the respondent No.4 regarding recovery of Rs.703928/- towards arrears of excess pay and Rs.4477/- towards dearness allowance and he seeks the following reliefs:
8.1 This Honble Tribunal be pleased to accept this application.
8.2 This Honble Tribunal be pleased to call for the entire records relating to the case from the custody and possession of the Respondents for its kind perusal.
8.3 This Honble Tribunal be pleased to quash/set aside the impugned orders dated 20/06/2013 and 27/5/2013 (A/1) issued by the respondents reverting the applicant from all the posts he was promoted to and directing him to deposit an amount of Rs.7,08,405/- towards alleged excess payment and to command the respondents to pay all the amounts due to the applicant towards pension and gratuity with interest at 18% per annum.
8.4 This Honble Tribunal be pleased to grant any other relief that is deemed fit and proper including the cost in the interest of justice.
2. The applicant was appointed as Temporary Shed Khalasi in Railways on 29.4.1976 against a regular sanctioned vacant post in Group D vide his appointment order Annexure A-2. Thereafter he was confirmed in service and secured promotion to the posts of Khalasi Helper, Skilled Fitter Grade III, II and I and lastly as Master Craftsman in the pay scale of Rs.5000-8000 (Pre revised) vide order dated 21.8.2007 (Annexure A-4).
3. The applicant rendered 35 years of sincere and unblemished service to the respondents in different capacities. During this period, he did not face any inquiry. However, on 13.09.2011, the respondents issued charge-sheet (Annexure A-6) alleging that he had produced a caste certificate for securing job in reserve category, which was subsequently found to be invalid since he does not belong to Scheduled Tribes. The applicant denied the charge and contested the inquiry. However, the disciplinary authority vide order dated 27.5.2013 (Annexure A-7) imposed a major penalty of compulsory retirement from service with full pensionary benefits. Dissatisfied with it, the applicant knocked on the doors of the appellate authority. However, the order of compulsory retirement was confirmed vide order dated 20.8.2013 (Annexure A-8). The applicant accepted the said order since preferred not to challenge it further.
4. It is stated that inspite of acceptance of the order of punishment, the applicants monthly pension was not fixed nor retiral benefits as admissible to him were paid as per rules. On the contrary considering the letter dated 3.6.2013 (Annexure A-9) issued by General Manager (Vigilance) calling upon the respondents to revert the applicant and recover excess payment made to him since he has produced invalid caste certificate and since punished for the said charge. In pursuance of said direction, the impugned order dated 20.6.2013 was issued and by another order dated 27.9.2013, recovery of Rs.7,08,405/- was directed from the applicant. He was also called upon to make payment of the aforesaid amount towards excess payment made to him for wrongly given promotion to him under reserve category, and else the same will be recovered from his retiral benefits.
5. The applicant, therefore, challenged the impugned orders on the following grounds mentioned in Para 5 of the O.A. The same are reproduced here for ready reference-
5.1 That the Disciplinary authority has full power to impose the punishment of compulsory retirement with grant of full pensionary benefits which he has exercised and imposed with full pensionary benefits and retired the applicant from service with effect from 27/5/2013. Thereafter is is only the appellate authority or the revising authority which has the power and authority in the hierarchy of Disciplinary authorities to alter that decision of the disciplinary authority. Respondent No.2, GM (Vigilance) is not in the line of such disciplinary authorities prescribed under the rules and he has no power or authority to interfere with or order altering the punishment or impose any other punishment in addition. The letter issued by Respondent No.2 is therefore without competence and therefore liable to be set aside by this Honble Tribunal.
5.2 That, respondent no.4 has no power or authority to order reversion of the petitioner from all the posts he was promoted to, to make him at par with the employees in UR category without any notice or hearing even if it is on the basis of a letter allegedly written by GM (Vigilance) and therefore the order issued by him is arbitrary, illegal and without jurisdiction and is liable to be quashed by this Honble Tribunal.
5.3 That, after an employee has been retired either on superannuation or compulsorily as a punishment as a result of disciplinary proceedings with grant of pensionary benefits, the respondents have no authority or power or jurisdiction to withhold or withdraw or effect any recovery from the pension or gratuity of the employee so retired. That power vests in the domain of the President of India under Rule 9 of the Pension Rules. The order impugned in this application is not issued by the President or in the name of President of India. Therefore it is without sanction of law and is liable to be quashed by this Honble Tribunal.
5.4 That, the applicant has a right to receive his pension and gratuity and the respondents have a duty to pay the same immediately after his retirement but by withholding the said payment, they have infringed his statutory righty by the impugned order and on this ground alone, the impugned order is liable to be set aside by this Honble Tribunal.
5.5 That, the applicant has been paid the pay and allowances as per the pay scale prescribed by rules of the posts he was promoted to. After discharging the duties of such higher posts, the applicant had a right to receive the higher pay and allowances he was paid. Thereafter the respondents have no authority to recover any amount from the said pay and allowances on the allegation that he was wrongly promoted. Even if the applicant was wrongly promoted, he had discharged the duties and functions of the higher post and therefore he was entitled to receive the pay and allowances fixed for the higher posts. No amount was paid in excess and no recovery can be ordered alleging excess payment. After getting the work of a higher post performed and making payment of such work, the Respondents are now making all efforts to make a case for recovery of alleged excess payment which is totally untrue and unfounded and amounts to a colourable exercise of power which is not permited by law and is therefore the impugned order is liable to be quashed by this Honble Tribunal.
6. On notice, the respondents appeared and by a common reply dated 6.2.2015, resisted the O.A by denying all the adverse averments, contentions and grounds raised therein. It is stated that the impugned orders are justified since major punishment was imposed upon the applicant for securing a job on the basis of invalid caste certificate of reserve category. Hence, administrative order was issued by the respondents in pursuance of direction of Vigilance Department, which cannot be said to be arbitrary, illegal or improper.
7. The applicant then filed rejoinder on 105.2015 and denied the averments made in the reply and reiterated the grounds raised in the O.A challenging the impugned orders. A decision rendered by the Honble Supreme Court in State of Punjab and others etc. v. Rafiq Masih (White Washer) etc. in Civil Appeal No.11527 of 2014 and other connected matters decided on 18.12.2014 was also placed for contending that no recovery can be made after retirement of the applicant although punishment of compulsory retirement was inflicted upon him. It is further stated that so far no recovery has been made nor the retiral benefits were released to the applicant.
8. On 14.12.2015 when the matter was called out for final hearing during the Circuit Court Sitting at Bilaspur, we have heard the oral submissions of Shri K.R. Nair, learned Advocate for the applicant and the reply arguments of Shri R.N. Pusty, learned Advocate for the respondents.
9. We have carefully gone through the pleadings of the parties and the documents relied upon by them in support of their rival contentions. We have also give our thoughtful consideration to the submissions advanced before us by both the learned Advocates for parties.
FINDING
10. It is not disputed that the applicant suffered punishment of compulsory retirement and he has not challenged the decision of the appellate authority and thus is satisfied with it. This was for the reason that although the charge was proved, he being compulsorily retired, will be entitled to get all pensionary benefits as per the provisions of CCS (Pension) Rules. However, even after compulsory retirement of the applicant, the respondents did not fix the pension nor released retiral benefits to him so far and on the basis of the communication by General Manager (Vigilance), recovery was directed by impugned letter dated 27.9.2013 (Annexure A-1) addressed to the applicant, which reads as under:
Sub :- Over Payment of Rs. 708405/-
Ref:- (1) Sr. DEE/OP BSPs Letter NO. O/BSP/G/09/D&A /2013/91/812 DT. 27.05.2013.
(2) GM VIGILANCE/SECR/BSPS Letter No. V/711124/ /1703/1250 dt. 03.06.2013.
In response to Sr. DEE/OP/BSPs punishment order dt. 27.05.2013 quoted under reference (1) you have been compulsory retired from Rly Service w.e.f. 27.05.2013.
Further as per GM VIGILANCE letter quoted under reference (2) dated 03.06.2013 an amount of Rs. 7,08,405/0 has been assessed as excess payment made on account of reversion owing to false (ST) certificate. You are therefore advised to deposit the amount in the case and pay office on the following allocation-
Allocation No. 08032101 Pay Rs.-703928/-
Allocation No. 08032102 DA Rs.-4477/-.
11. Prior to issuance of the above order, pay of the applicant for the cadres right from his appointment on 17.4.1976 was revised vide order dated 20.6.2013 and on its basis, the quantum of excess amount was settled.
12. During the course of arguments, the learned Advocate for the applicant submitted that before passing the impugned order of recovery or refixation of pay of the applicant, he was not heard nor any show cause notice was issued to him. Thus no opportunity was given to him to explain as to why he is not liable to pay the alleged excess amount of pay. Thus principles of natural justice are violated in this case. However, although recovery is directed, the learned Advocate for the respondents was unable to point out any specific provision of law/rule/notification under which the recovery was directed. It cannot be said that simply because applicant was compulsorily retired on the serious charge of submitting a false caste certificate for getting a job, his pay is liable to be revised on imposition of penalty. In-fact since the applicant faced a serious charge, the disciplinary authority or the appellate authority should have imposed the major penalty of removal or dismissal from service. However, since the same has not been done nor the applicant has challenged the order of compulsory retirement, the same is final and binding on both the parties. The applicant has already worked in various capacities of promotional posts considering his initial appointment in the category of ST relying on the caste certificate produced by him. However, subsequently when it was found to be false, it cannot be said that his pay can be revised or reduced considering him to be a General candidate. Thus, the applicant was in-fact punished twice, firstly by the order of compulsory retirement and secondly by the order of revision of pay and recovery of alleged excess amount received by him. In-fact at the time of initiating the disciplinary proceeding, additional charge could have been levelled against him saying that since on the basis of invalid caste certificate he has secured a job as reserve category candidate and he will be liable for refixation/revision of pay and recovery of the excess amount paid to him in case the said charge is proved. However, no such additional charge was levelled against the applicant and the memorandum was restricted to submitting a false caste certificate submitted by him for securing a job. Since the said charge is proved and major penalty of compulsory retirement was imposed upon him, we do not feel it appropriate to hold that the action taken by the respondents on the basis of the General Manager (Vigilance) letter, is appropriate, proper or correct one. There is no basis for recovery of the amount or refixation of pay of the applicant in absence of anything to this effect in the order of punishment imposed by both the authorities. By issuing administrative order, there cannot be refixation/revision of pay followed by recovery of excess amount allegedly recovered by applicant, on the basis of caste certificate produced by him for securing a job.
13. The learned Advocate for the applicant has also relied upon the recent decision of Honble Supreme Court in Rafiq Masih (supra), in which it has been held in Para 12 as under and the following guidelines are laid down:
12. It is not possible to postulate all situations of hardship, which could govern employees on the issue of recovery, where payments were 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 fes situations, wheein 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 employers right to recover.
14. Perusal of the aforesaid decision shows that although it relates to wrong fixation of pay and corresponding recovery, but in the present case there is no question of wrong fixation of pay since the applicant was appointed on regular basis although considering him as ST candidate and he rendered the service till the caste certificate produced by him was found to be false/invalid. This being so, the aforesaid ruling, in-fact, is not applicable. However, since the applicant is now already retired, no recovery of amount can be made. If at all any recovery is to be made or pension is to be reduced/revised, the appropriate remedy would be to approach the President of India in this behalf, but the same has not been done in this case. This being so, we find substantial force in the contention of learned Advocate for the applicant that the impugned orders are arbitrary, illegal and incorrect especially in absence of holding any regular disciplinary proceeding against him in this behalf and giving full opportunity to defend him. The impugned orders are therefore liable to be set aside.
15. (a) In the result, the O.A is allowed.
(b) The impugned order dated 20.6.2013 and 27.9.2013 (Annexure A-1 collectively) passed by the respondents regarding recovery of the amount of Rs.703928/- and refixation/revision of pay are hereby set aside.
(C) The respondents are directed to take prompt and appropriate steps for fixation of pension and retiral benefits to the applicant, since he is compulsorily retired from service and is entitled for those benefits as per rules.
(d) The above exercise be undertaken and completed within a period of six weeks from the date of receipt of a copy of this order.
(e) In the facts and circumstances of the case, the parties are however directed to bear their respective costs of this O.A. (Arvind J. Rohee) (G.P. Singhal) Judicial Member Administrative Member am 10 OA 203/00246/2014 Page 10 of 11