Naresh Chandra Srivastava vs Union Of India Through General Manager, North Central Railway, Allahabad & Ors.

Dr. Sanjiv Kumar, Member (A)

The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking relief to quash the impugned order dated 30.11.2017 passed by respondent No. 2 as well as order/ letter dated 20.03.2012 passed by respondent authorities with all his consequential effects, and to consider the applicant‟s representation dated 29.11.2021 and take appropriate decision in respect of revising / fixing the pension of the applicant after calculating his service period as well as salary correctly in accordance with law and provide correct revised pension to the applicant without any recovery from the same, and to grant any other suitable relief deemed fit and to award cost.

The fact of the case is that the applicant was appointed as Khalasi in Railway Electrical Department on 18.07.1966 and subsequently he was promoted on the post of Switch Pump Attendant w.e.f. 23.12.1980. The applicant filed OA No. 1099 of 2003 for issuance of a direction for promotion to the post of Switch Pump Attendant w.e.f. 23.12.1980 and all consequential benefits etc. and subsequent promotion. The applicant retired on 31.01.2005. This Tribunal passed an order on 23.07.2010 directing the respondents to give promotion to the applicant from the date on which his juniors have been promoted. Railway authorities have not complied with the order dated 23.07.2010 and did not do proper calculation. Railway authorities made payment of Rs. 3,81,740/- on 10.09.2011 and fixed the pension at Rs. 4,032/- which is completely wrong and the authorities were harassing the applicant due to filing of contempt case. Respondent authorities have neither counted nor fixed the pay from the period 23.12.1980 till date as directed by the Tribunal. Subsequently, the authorities issued a recovery order dated 08.08.2015 through State Bank Of India in pursuance of earlier order dated 20.03.2012 issued by the Railway authorities regarding alleged excess payment which is totally arbitrary, illegal and not sustainable in the eyes of law. The amount already paid by the authorities is lesser and were not calculated properly and the applicant is not provided eligible promotional benefits.

Aggrieved by the recovery order dated 08.08.2015 issued by the SBI in pursuance of earlier order dated 20.03.2012 issued by the Railway authorities regarding alleged excess payment, the applicant preferred OA No. 87 of 2016 before this Tribunal and an order was passed on 30.05.2017, whereby recovery order dated 08.08.2015 pursuant to earlier order dated 20.03.2012 was set aside, and as the authorities did not implement the said order of the Tribunal‟s contempt application No. 167 of 2017 was filed. The applicant failed to challenge the order dated 20.03.2012 issued by the respondent authorities on which basis order of recovery by the Bank dated 08.08.2015 was issued in his OA No. 87/2016 and respondent authorities issued the order dated 30.11.2017 in pursuance of the Tribunal order dated 30.05.2017 and his new counsel going through the entire record advised him to challenge the main order dated 20.03.2012 by which alleged excess payment was sought to be recovered from the applicant and accordingly a representation dated 29.11.2021 was given and the same was not been disposed of by the authorities and as impugned order dated 30.11.2017 was passed without taking into consideration the contention of the applicant. Hence, the applicant asserts that his case is based on rights and his OA should be allowed and he should be given the relief claimed.

Counter affidavit has been filed by the respondents wherein they say that the OA has been filed against the order dated 20.03.2012 and against the order dated 30.11.2007 which has been passed in compliance of the order dated 30.05.2017 of this Tribunal in OA 87/2016, as such the present OA is barred by limitation and liable to be dismissed on the ground of delay and latches. The present OA is also barred by Order-2 Rule-2 CPC and principle of resjudicata in as much as that the applicant has earlier also approach this Tribunal for his grievances. Hence, his OA should be dismissed.

The respondents further state that the applicant was promoted w.e.f. 22.09.1997 on the post of Tech-I pay scale Rs. 4500 – 7000 with GP Rs. 2800/- and the benefit of pay fixation was done on the basis of proforma promotion and the applicant has already been retired on 31.01.2005, and as per the direction of this Tribunal dated 23.07.2010 the applicant was entitled for promotion at par with his junior on the notional basis, but due to mistake calculation was done treating actual promotion in place of proforma promotion and excess payment of Rs. 381740/- was made by the department, whereas the applicant was not entitled for payment of any arrears. Since erroneous payment was made; recovery from the pension of the applicant was necessary, and accordingly recovery is being made. They further submit that in compliance of the order dated 30.05.2017 department has already passed a speaking order dated 30.11.2017 which attains the finality and about 5 years have passed, and the applicant has challenged the same in the present OA which is highly time barred. However, there is no illegality in the speaking order dated 30.11.2017. It is a detailed and speaking order. Ground of malafide cannot be taken without impleading in person to whom alleged malafide has been committed. Hence, the respondents request to dismiss the OA.

The applicant has filed rejoinder affidavit wherein he reiterates the facts as in the OA. In the rejoinder affidavit he further emphasised that excess amount of Rs. 381740/- as alleged by the Railway authorities were not done by the mistake by the applicant which was paid to the applicant by the order of this Tribunal but the Railway authorities wrongly and illegally passed the order dated 20.03.2012 to recover the same from the pension of the applicant. The applicant rely on the Hon‟ble Apex Court judgment in 2014(14) SCALE 300 and 2015(4) SCC 334 (State of Punjab and others vs. Rafiq Masih & Ors) that no amount shall be recovered from the employee where the payment has mistakenly be made by the employer in excess of their entitlement. Hence, his OA should be allowed.

The case came up for final hearing on 15.12.2023. Shri Hari Ram, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents were present and heard. I have gone through the records carefully and considered the rival contentions.

From the record it is evident that this OA is the third OA filed by the applicant aggrieved by various decisions of the respondents. The impugned order dated 30.11.2017 challenged in this OA is a detailed order on the subject, ‘On compliance of Hon‟ble CAT/ALD‟s order dated 30.05.2017 in OA No. 330/00087/2016’, and it is a self contained reasoned order. And the order dated 20.03.2012 is on the subject, “Revision of pension/family pension in f/o Shri Naresh Chandra Ex. HLP II under SSE/PS/ALD retired on 31.01.2005”, and wherein it is finally concluded that there is a wrong payment of Rs. 311303/- in terms of excess payment to the applicant and it is to be recovered and adjusted against his arrears of difference of DA relief and against further DA relief. The main explanation of which is given in para 12 (iii) of the counter affidavit wherein the respondents say that applicant was promoted w.e.f. 22.09.1997 on the post of Tech-I pay scale Rs. 4500 – 7000 with GP Rs. 2800/- and the benefit of pay fixation was done on the basis of proforma promotion and the applicant has already been retired on 31.01.2005, and it was noteworthy to mention that as per order and direction dated 23.07.2010 of this Tribunal the applicant was entitled for promotion at par with his juniors on notional basis, but due to mistake calculation was done treating his case as actual promotion in place of proforma promotion; and excess payment of Rs. 381740/- was made by the department. Whereas the applicant was not entitled for payment of any arrears. Hence, the authority went ahead to order for recovery and they have also made certain recoveries, subsequently which is not denied. It is not denied that the applicant is a junior Civil servant belonging to Group „C‟ and „D‟ and there was no fault of his in calculating or proposing excess payment and also there is no fraud, misrepresentation or any type of wrong doing alleged on the part of the applicant for the same. It is also not disputed that he is a retired employee. Hence, if I test the said recovery on the basis of the citied Hon‟ble Apex Court judgment of Rafiq Masih (supra), which specifically mentioned 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 employer‟s right to recover.”

I find that the case of the applicant being a retired employee of Group C/D, is covered by the above judgment. Hence, I have no doubt that the authorities erred in ordering recovery from the applicant in this case. But I do not find any malafide or any other anomaly in their impugned speaking order.

As this OA is identical to the same as the recovery order from a retired junior Civil servant was not proper in the Rafiq Masih (supra), hence, to that extent the applicant is entitled for relief, but as far as his other contentions are concerned, the applicant is unable to substantiate the same and I have no doubt that the official order dated 30.11.2017 pursuant to the order of this Tribunal dated 30.05.2017 in OA No. 87/2016 is a speaking and just order; except to the extent of the recovery of Rs. 381740/- as discussed above.

Considering the facts and circumstances of the case, I pass following orders:-

“The OA is partly allowed. The recovery of Rs. 381740/-alleged to have been excess payment to the applicant, post retirement, in wrongly fixing his back emoluments in proforma promotion is considered to be in contravention of the ruling of the Hon’ble Apex Court in the case of Rafiq Masih (supra). Respondents are directed to give back the said recovered amount in one lump-sum to the applicant within a period of three months time from the date of receipt of a certified copy of this order with 6% simple interest.

All pending MAs, if any, shall stand disposed of. No costs.”