Central Administrative Tribunal - Allahabad
Anirudh Kumar Mishra Aged About 62 Years ... vs Union Of India Through General Manager on 27 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH , ALLAHABAD
Original Application No. 330/00023/2014
RESERVED ON 20.5.2016
PRONOUNCED ON 27.5.2016
HONBLE MR. JUSTICE DINESH GUPTA, MEMBER (J)
Anirudh Kumar Mishra aged about 62 years son of Sri R.M. Mishra ex- Senior Technician, N.C. Railway, Allahabad r/o House No. 17/22-C Nai Basti Beniganj, Allahabad-211001.
Applicant
By Advocate: Sri Sudama Ram
Versus
1. Union of India through General Manager, North Central Railway, Headquarter Office- Subedarganj, Allahabad.
2. Divisional Railway Manager, North Central Railway, DRMs office, Allahabad.
3. Senior Divisional Personnel Officer, North Central Railway, DRMs office, Allahabad.
4. Senior Divisional Finance Manager, North Central Railway, DRMs office, Allahabad.
5. General Manager (Staff Grievances), North Central Railway, Headquarter Office, Subedarganj, Allahabad.
Respondents
By Advocate : Sri Raj Kishore Pandey
ORDER
By Honble Mr. Dinesh Gupta, Member (J) This O.A. is preferred by the applicant with the following reliefs:-
i) The Honble Tribunal may graciously be pleased to quash and set aside the impugned pension payment order dated 4.9.2012 (Annexure A-1) and impugned letter/ reply dated 30.10.2013 issued by Sr. DFM, N. C. Railway, Allahabad vide letter dated 18.12.2013 (Annexure A-2) and direct the respondents to calculate pension, gratuity and commutation of pension taking into account amount the last pay drawn i.e. @ Rs.19,590/-
ii) The Honble Tribunal may further be pleased to direct the respondents to refund Rs. 23000/- illegally recovered from the DCRG of applicant along 12% interest and award compensation of Rs. 30,000/- for making unnecessary harassment.
iii) Any other it or order or direction which the Honble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued in the interest of justice.
iv) cost of the application may also be awarded.
2. The brief facts of the case are as follows:-
2.1 That the applicant was appointed as an apprentice Lineman in the grade of Rs. 260-400 vide letter dated 4/6.10.1978 by Divisional Personnel Officer, N.R., Allahabad and he joined duty on 7.10.1978.
2.2 The applicant was promoted as H.S. Lineman in the grade of Rs. 1320-2040 (RPS) under Chief Foreman , NR, Allahabad.
2.3 That the applicant was further promoted to the post of Senior Technician/ MCM in the grade of Rs. 9300-34800 Grade Pay Rs. 4200/- and joined on 16.2.2010 vide letter dated 19.2.2010.
2.4 The applicant applied on 30.3.2010 for correct fixation of pay as his fixation in MCM in the pay scale of Rs. 9300-34800/- GP 4200/- was not being done and delaying tactics were being adopted.
2.5 That the applicant was given 3rd financial upgradation vide letter dated 10.6.2009 with retrospective effect from 16.5.2009 and his pay was fixed @ Rs. 17400/- per month accordingly. Thereafter, applicant was given fixation of pay on 1.7.2010 @ Rs. 18,460/- per month as per notice dated 13.12.2010.
2.6 That in July 2012, the applicant was drawing @ 19590/- per month after granting one due increment and at the time of retirement, applicant was drawing his basic salary @ Rs. 19590/- as his last basic pay in August, 2012. The applicant retired on 31.8.2012 on superannuation. Applicant was issued pay slip of July 2012 which shows that applicant was drawing salary @ 19590/- per month on the date of his retirement i.e. on 31.8.2012.
2.7 That on retirement, he was paid leave encashment Rs. 3,14,195/-, against his leave due on his last pay drawn @ Rs. 19590/- per month but he was not paid his DCRG, pension and commutation of pension on last pay drawn. He was also issued service certificate on5.9.2012 by which Divisional Railway Manager, North Central Railway, Allahabad in which last pay of the applicant was shown @ Rs. 19590/-.
2.8 That it is mentioned that on retirement, the basic payoff the applicant was reduced by one increment below i.e. from the stage of Rs. 19590/- to Rs. 19030/- per month arbitrarily without giving any show cause notice and the calculation of his pension , DCRG, commutation of pension was done at the reduced rate of pay @ 19030/- p.m. without any show cause notice to the applicant. Applicant came to know about the same after receipt of impugned pension payment order PPO No. 1312021489 dated 4.9.2012 in which his pension was calculated at the reduced basic pay of Rs. 19030/-.
2.9 That after getting the aforesaid PPO, the applicant tried to know the reason for not fixing his pension on last pay drawn of Rs. 19590/-,then it was told to him by the dealing clerk that it was due to withdrawal of benefit of 3rd financial up-gradation given under MACP with retrospective effect from 16.5.2009. As such, reduction in pay on retirement is punitive in nature and it could not be done arbitrarily without giving any notice to the applicant.
2.10 That the respondents recovered Rs. 23000/- illegally from his DCRG after his retirement on 31.8.2012 without giving any prior notice on the plea of overpayment caused due to withdrawal of benefits of 3rd financial upgradation under MACP.
2.11 That applicant also personally requested the concerned official to restore his last pay @ Rs. 19590/- and fix his pension, DCRG, commutation of pension. It is mentioned that DCRG and pension is not a bounty which can be adjusted /recovered against illegal dues or recovery as alleged. Applicant left no option, knocked the door of this Tribunal by means of the present O.A.
3. Learned counsel for respondents filed their counter reply through which it is stated that in advertently, the last one increment has wrongly been added on the basis of which his pay was wrongly calculated as Rs. 19590/- instead of Rs. 19030/- .
3.1 That while calculating the pensionary benefits and other retiral dues, it was detected from the service record of the applicant that one increment has wrongly been awarded to the applicant prior to his increment. Therefore, on coming to know about the aforesaid facts, the competent authority had duly rectified the aforesaid mistake and reduce the basic pay of applicant from Rs. 19590/- to Rs. 19030/- and the aforesaid decision has already been informed to the applicant vide letter dated 30.10.2013 and 18.12.2013. As such respondents have rightly calculated the pension and other retiral dues of the applicant and accordingly issued PPO on 4.9.2012.
3.2 That after rectification , the amount which was found excess paid to the applicant has rightly been ordered to be revered from the DCRG amount and there is no irregularity in the same.
4. Heard Sri Sudama Ram learned counsel for applicant and Sri Raj Kishore Pandey, learned counsel for respondents and perused the pleadings on record.
5. Learned counsel for applicant has relied upon a decision in the case of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33. In this case, Honble Supreme Court has been pleased to observe as under:-
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 employers right to recover.
6. Not only this, the Honble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttrakhand and others reported in (2012) 8 Supreme Court Cases 417, has been pleased to observe as under:-
8. We are of the considered view, after going through the various judgments cited at the Bar, that this Court has not laid down any principle of law that only if there is misrepresentation or fraud on the part of the recipients of the money in getting the excess pay, the amount paid due to irregular/wrong fixation of pay be recovered.
7. Undoubtedly, the amount can be recovered if it is a wrong calculation on the part of the respondents and any amount excess paid to the applicant but the applicant is entitled to have an opportunity of hearing and the principles of natural justice cannot be violated.
8. As observed by the Honble Apex Court in the case of State of Orrisa Vs. Dr. Ms. Binapani Dei reported in 1967 Supreme Court Cases 1269 where the Honble Apex Court has been pleased to observe that Even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice.
9. In the case of Davinder Singh and others Vs. State of Punjab and others reported in (2010) 13 Supreme Court Cases, 88, the Honble Apex Court has also been pleased to observe that opportunity of hearing is to be given to the delinquent before passing an order.
10. In the instant case, it is specifically clear that before passing of impugned order, no opportunity of hearing is given to the employee.
11. It is also not disputed that the amount of fixation of pay and pension was not an out come of any fraud or misrepresentation on the part of the employee. It is further submitted that applicant belongs to Group C and the following postulate formulated by the learned Apex Court in the case of State of Punjab Vs. Rafiq Masih (supra), the recoveries is impermissible to the employee belonging to Class III and IV Service ( Group C and Group D) and also from the retired employees.
12. In the present case, the applicant is retired employee and also belongs to Group C and thus the amount of recovery of Rs.23000/- against the employee is patently illegal and the applicant is entitled to get refund of Rs. 23000/-. 0 Although the applicant also demanded interest on the aforesaid amount but considering the view taken by the Honble Apex Court, applicant is not entitled to get interest.
13. So far as fixation of basis pay to the tune of Rs. 19030/- , this reduction is made without giving any opportunity to the applicant and as per principle of natural justice, the opportunity should be given to the applicant while taking any decision against him.
14. In view of the above, O.A. deserved to be allowed . Accordingly, the O.A. is allowed. The respondents is directed to refund the amount recovered from the applicant to the tune of Rs. 23000/- and also to take a decision on reduction of basic pay of the applicant after giving applicant an opportunity of personal hearing and also apprise him about the reasons for reduction of basic pay and then take a decision by means of speaking and reasoned order under intimation to the applicant. No order as to costs.
(Justice Dinesh Gupta) Member (J) HLS/-
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