Achal Kumar Chaudhary vs Union Of India & Ors

Om Prakash VII, Member (J)

By way of the instant original application, the applicant has prayed for setting aside the order dated 04.03.2022 passed by the respondent no. 4 (Annexure -1 of OA) with a direction to the respondents to refund the total amount deducted from the salary of the applicant with stipulated rate of interest.

The brief facts of the case are that while working to the post of Traction Loco Controller (in short TLC) at Alllahabad Station the applicant’s pay was Rs. 25,320/- and DA was Rs. 39170/- in the month of March 2016 and in the month of August 2016, his pay was fixed at Rs. 78800/- on implementation of 7th Pay Commission but the applicant was paid basic pay of Rs. 86100/- from March 2020 to May 2020. According to the applicant, he was paid basic pay Rs. 74300/- in the month of July 2020 and sum of Rs. 8059/- was deducted from his salary. It is stated that Rs. 21277/- was also deducted from the salary of the applicant from September 2020 upto September 2021. Aggrieved by the aforesaid recovery, the applicant preferred a representation dated 20.10.2020 (Annexure A-6) before the respondent no. 3 followed by representations dated 02.11.2021 and 17.11.2020 (Annexure A-7 and A-8 respectively). Having received no response from the respondents, the applicant filed OA No. 1014/2021 before this Tribunal, which was disposed off with a direction to the respondent no. 2 to take a judicious decision on the representation of the applicant dated 17.11.2020 by passing a reasoned and speaking order within a period of six weeks (Annexure A-9). It is stated that instead of deciding the representation dated 17.11.2020, the respondents proceeded to deduct Rs. 21277/- from the salary of the applicant for the January 2022 and again deducted Rs. 13202/- from the salary of February 2022 (Annexure A-10). Now, by order dated 04.03.2022 (Annexure-1), the respondent No. 4 has informed that there was over payment of Rs. 5,20,125/- already paid to the applicant according to the pay fixation issued on 17.01.2022. Out of aforesaid amount, sum of Rs. 361709/- had already been deducted from the regular salary of the applicant for the months from September 2020 to January 2022 and the remaining amount of Rs. 158416/- is to be recovered from the salary at the rate of Rs. 13202/- per month. Aggrieved by the order dated 04.03.2022 (Annexure-1), the applicant has filed the instant original application.

Refuting the claim of the applicant, learned counsel for the respondents stated that after declaring unfit for the post of Loco Pilot Goods in the pay scale of Rs. 5000-8000, the applicant was posted on the post of Traction Loco Controller (non-running) in the pay scale of Rs. 5000-8000 vide order dated 18.03.2005 but erroneously his pay was fixed at Rs. 76500/- treating him in running category in view of 7th Pay Commission. However, after the mistake was detected, the pay fixation of the applicant was corrected and he was directed to refund the over payment of Rs. 7,65,984/- in 36 monthly installment of Rs. 21,277/- per month. Learned counsel for the respondents stated that in compliance of the direction of the Hon’ble Tribunal dated 03.12.2021 passed in OA No. 1014/2021, the competent authority has passed a detailed order dated 20.01.2022 (Annexure CR-1). It is further stated that due to payment from 01.01.2006 to 01.07.2021, the total over payment was Rs. 7,65,984/-which was reduced to Rs. 5,20,125/- out of which Rs. 3, 61,709/- has been recovered from the pay of the applicant from September 2020 to January 2022. The remaining over payment amount Rs. 1,58,416/- has been revised vide order dated 04.03.2022 w.e.f February 2022 on the rate of Rs. 13,202/- per month for 12 monthly installments.

I have heard the learned counsel for the parties and perused the record.

During the course of the arguments, learned counsel for the applicant vehemently submitted that there was no fault on the part of the applicant and the recovery has been made without affording opportunity of hearing to the applicant. Aggrieved by the action of the respondents, the applicant had approach this Tribunal through OA No. 1014/2021 which was disposed off vide order dated 03.12.2021 with a direction to the respondent no. 2 to take a judicious decision on the representation of the applicant dated 17.11.2020 by passing a reasoned and speaking order. Referring to the impugned order, it was further argued that even direction issued by the Tribunal in the aforesaid OA, authority concerned did not disclose the reason regarding excess payment. The applicant is a group ‘C’ employee and even if the respondents’ pleas istaken to be true, as per the law laid down by the Hon’ble Supreme court in the case of State of Punjab and others Vs. Rafiq Masih – (2015) 2 SCC (L&S) 33, and the Judgment of Hon’ble Allahabad High Court dated 06.01.2020 passed in Writ A No. 20313/2018 – Abay Kumar and 10 others Vs. State of UP and 2 others, recovery cannot be made. It is also argued that recovery already made from the applicant be directed to return to the applicant.

Learned counsel appearing on behalf of the respondents referring to the Suppl. Counter Affidavit filed today, argued that due to wrong fixation of pay of the applicant on implementation of the VIIth Pay Commission, excess payment was made to him. He argued that the applicant was fully aware about the excess payment but he did not raise any question at any point of time before the authority concerned. Thus, the recovery made from the applicant is legal one and no direction can be given to return the amount already recovered in the matter. To substantiate his arguments, learned counsel appearing for the respondents referred to the chart annexed with the Suppl. Counter Affidavit and further argued that the recovery is being made after passing a reasoned and speaking order.

I have considered the rival submissions and have gone through the entire record.

In this matter, it is evident from the record that on issuance of recovery process, the applicant had approached before this Tribunal through OA No. 1014/2021, which was disposed off vide order dated 03.12.2021 with a direction to the concerned authority to take a judicious decision on the representation of the applicant dated 17.11.2020 . It appears that the representation of the applicant dated 17.11.2020 was decided through Annexure A-1. Mode of excess payment said to have been made on the part of the authority concerned has not been disclosed in it. It is an admitted case of the respondents that excess payment was made to the applicant due to fault occurred on the part of the department itself at the time of implementation of VIIth Pay Commission. Hon’ble Supreme Court in the case of Rafiq Masih (Supra) in para 18 has held as under: -

“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 herein above, we may, as a ready reference, summaries 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 wrongly 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 employees, 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.”

As is clear from the pleadings of the parties and the record that the applicant is a Group ‘C’ employee and wrong fixation of pay was done on the part of the authority concerned. There was no mis-representation on the part of the applicant or he has not played any fraud. The respondents are recovering the excess payment from the applicant in an arbitrary manner which is in violation of principles of natural justice as well as in violation of the law laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (Supra) and the judgment of Hon’ble Allahabad High Court in the case of Abay Kumar and 10 others (Supra).

In view of the above, the OA is allowed and the impugned order dated 04.03.2022 (Annexure A-1) for recovery of excess payment from the applicant is quashed. The respondents are directed to refund the entre amount already recovered from the applicant within a period of three months from today alongwith 6% simple interest with effect from the date of recovery. It is also directed that the amount which is still to be recovered shall not be recovered from the applicant.

No order as to costs.