Manoj Kumar vs Union Of India & Ors.

Mohan Pyare, Member (A)

Shri Rajesh Kumar and Pradeep Kumar Mishra, learned counsel for the applicant and Shri Vimal Kumar Rai, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“(i)Issue an order or direction in the nature of mandamus directing the Respondents to re-calculate the pension and retrial dues by adding the annual increment due in the month of July-2022 and pay the arrear of differences with 12% annual interest.

(ii) Issue an order or direction in the nature of mandamus directing the Respondents to pay the recovered amount Rs. 1,36,393/-with 12% annual interest to the applicant.

(iii) Issue any further orders or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

(iv) Award the appropriate cost in favour of the applicant.”

The brief facts of the case are that the applicant was working as Technician-I (C&W) which is a Group-C post who retired on superannuation from Railway service on 31.7.2022 after serving more than 31 Years and 05 months. At the time of retirement, the last basic pay of the applicant was Rs.42,800/- (GP-2800) in level-5 of 7th pay commission after reduction of one increment in the month of June-2022 (one month before of retirement). In the month of May-2022, applicant pay was 42,800/-and in the month of June-2022, applicant‟s pay was reduced without any charge sheet/punishment. Thereafter, in the month of July-2022, applicant‟s pay was back to Rs.42,800/-, which was also in the month of May-2022. Applicant was due for annually increment in level- 5 in the month of July-2022. The basic pay of the applicant should have been increased to Rs.44100/-(Next slab of Rs.42,800/-) by applying an annual increment in July 2022, but the respondents has not granted the annual increment in July 2022 and calculated all the pensionary benefit as well as pension on the basic pay of Rs.42,800/- in place of Rs.44,100/-. Respondents has calculated the pension and other retiral dues on the basis of reduced basic pay i.e. Rs.42,800/- not as per basic pay Rs.44,100/-. At the time of retirement, the respondents without giving any notice or opportunity to applicant, recovered the amount Rs.1,36,393/- from the pensionary benefit, which is violation of principle of natural justice. In this regard, the applicant made a representation dated: 18.08.2022 before the respondents but no action has been taken on his representation. Hence, this OA.

Heard the rival submissions.

Learned counsel for the applicant submitted that as per Law laid down by the Hon‟ble Supreme Court as well as Hon‟ble High Court, it is not permissible to recover/deduction of over payment of pay after retirement from the retiral dues. It is further submitted that in the case of State of Punjab & ors. Vs. Rafiq Masih, the Hon‟ble Supreme Court in Civil Appeal No.11527 of 2014 decided on 18.12.2014 has clearly observed that :-

“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, summarize the following few situations, wherein recoveries by the employers, would be impermissible in law.”

Learned counsel for the applicant also submitted that in OA No.272/2014 with 274/2014 in the case of R.K. Bhatnagar Vs Union of India and others, the Hon'ble Tribunal (Principal Bench), New Delhi vide its order dated 26.02.2015, quashed and set aside the impugned order of re-fixation of pay after retirement. The respondents challenged the aforesaid order by way of filing Writ Petition before the Hon'ble High Court, Delhi which was also dismissed.

In their counter affidavit, the respondents have submitted that the applicant was initially appointed as casual Safaiwala on 17.2.1986 and was removed from service w.e.f. 21.7.1986 was further re-appointed as non panelled Safaiwala on 05.09.1986 in grade Rs. 196-232(RS). During the service, he was screened/empanelled as Safaiwala on 15.03.1995) and was given promotions from Safaiwala to Helper Khalasi in grade Rs. 2650-4000(RSRP) on 20.02.1998. He was granted MACP in GP-1900/- & 2000/-on 01.09.2008. He was further promoted from the post of Helper Khalasi to Technician-III on 29.08.2008 in GP-1900/-, Technician-II on 03.05.2013 in GP-2400/-, Technician-I on 05.03.2016 in GP-2800/- and posted on promotion under Senior Section Engineer (C&W) Prayagraj, North Central Railway as Technician-I on 5.3.2016. It is submitted that the applicant was already granted the benefit of grade pay Rs.2000/- (now Level-3) as Helper Khalasi under MACP Scheme with effect from 1.9.2008 as thus on promotion to the post of Technician-II Grade Pay Rs.2400 (now Level-4) w.e.f. 9.5.2013. Inadvertently his pay on option was fixed, as per normal rules (if he would have not been granted the benefit under MACP Scheme) was fixed on which promotion by adding one notional increment plus difference of grade pay, whereas, since the applicant was already in receipt of benefit of grade pay Rs.2000 (now Level-3) under MACP Scheme w.e.f. 1.9.2008 and his pay was already fixed after adding one increment plus difference of grade pay between grade pay 1900 & 2000. Therefore, as per extant rules, the applicant was only entitled for addition of difference of grade pay between grade pay 2000 & 2400 i.e. Rs.400 in his basic pay (instead of adding one notional increment plus difference of grade pay Rs.400/-) while fixing the pay on promotion to the post of Technician-II Grade Pay Rs.2400 (now Level-4) w.e.f. 9.5.2013. The wrong fixation of pay of the applicant was corrected/modified by order dated 13.06.2022. It is further submitted that the applicant while working in Group 'C' Post, drawn higher pay, beyond the extant rules but did not inform to administration for such inadvertence. Therefore, the respondents have not committed any illegality or infirmity in the case of applicant by modifying his pay. On the basis of above submissions, learned counsel for the respondents has submitted to dismiss the OA as devoid of merit.

In rejoinder affidavit, the applicant has reiterated the similar facts as given in the OA and added that the applicant belongs to Group-C employee and as per law settled by the Apex court in the case of Rafiq Masih, the respondents cannot be permitted to recover any over payment amount at the time of retirement from the pensionary benefits. In this Regard, Ministry of Railways, Railway Board's vide RBE No. 72/2016 dated: 22.6.2016 has also issued the instructions. It is also submitted that the applicant‟s case based on the cogent grounds, statuary rules and instructions of the department on the subject issue and therefore, the present original application is liable to be allowed.

Considered the rival submissions and verified the documents available on record as well as written argument filed by learned counsel for the respondents.

Learned counsel for the applicant mainly relied on the judgment passed by Hon‟ble Apex Court in the case of State of Punjab & ors. Vs. Rafiq Masih. In the aforesaid judgment, the following recoveries from employees by their employer is impermissible in law :-

“(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(il) 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.”

Subsequent to the said judgment, DOP&T has issued memorandum dated 02.03.2016 and have directed the following :-

“The matter has, consequently, been examined in consultation with the Department of Expenditure and the Department of Legal Affairs. The Ministries / Departments are advised to deal with the issue of wrongful / excess payments made to Government servants in accordance with above decision of the Hon'ble Supreme Court in CA No.11527 of 2014 (arising out of SLP (C) No.11684 of 2012) in State of Punjab and others etc. vs Rafiq Masih (White Washer) etc. However, wherever the waiver of recovery in the above-mentioned situations is considered, the same may be allowed with the express approval of Department of Expenditure in terms of this Department's OM No.18/26/2011-Estt (Pay-1) dated 6th February, 2014.”

Subsequently, the Ministry of Railway has also issued RBE No.72/2016 and adopted the OM issued by DOP&T.

The OA NO.272 of 2014 with OA No.274 of 2014 decided by Principal Bench of this Tribunal also supports the OA of the applicant.

Learned counsel for the respondents has taken a plea that there is no illegality in the order passed by the respondents as there was erroneous fixation of pay in favour of the applicant which has been corrected as per extant rules but they have neither referred nor enclosed any such extant rule.

On the basis of above discussions, it is clear that pay of the applicant was fixed by the competent authority amongst the respondents, which was modified by the respondents in their letter dated 13.06.2022. There is no case of the respondents that the applicant has miss-represented or fixation of pay was done on behest of the applicant. It is also clear that no opportunity was granted to the applicant regarding so called wrong fixation of his pay. The above issue is squarely covered under the citation referred as Rafiq Masih, DOP&T OM as well as RBE No.72/2016 of the Railway. The applicant belongs to Group „C‟ employee. The recovery made by the respondents is bad in law.

In view of the above discussion, the OA is allowed. The respondents are directed to re-calculate the pension and retiral dues as per rules in the light of RBE No.72/2016. Respondents are also directed to pay back the recovered amount with 6% simple interest to applicant within a period of three months from the date of receipt of certified copy of this order. No order as to costs.

All MAs pending in this O.A. also stand disposed off.