Ramachandran K vs Union Of India & Ors

K.Haripal, Member J

The applicant had commenced service on 06.09.1961 in the Southern Railway and superannuated on 31.10.1994, while working as Technician Grade-I in the scale of pay of Rs.1320-2040. According to him, the revised scale in the 5th Pay Commission was Rs.4500-7000 effective from 01.01.1996 and from 01.01.2006, during the 6th Pay Commission, appropriate scale was at Pay Band-I with grade pay of Rs.2,800/-; the scale was revised during the 7th Pay Commission from 01.01.2016 in level-5 of pay matrix. Thus Pension Payment Orders were issued as evident from Annexures-A4 to A6 respectively. When delay occurred in revising his pay scale from 01.01.2016 he made representations. The grievance was taken to Pension Adalath conducted by the respondents. Ultimately, Annexure-A1 communication was sent to him by the 3rd respondent informing the recovery of over payment of Rs.1,75,516/- during the period from 01.01.2006 to 30.06.2018. Thus the 3rd respondent directed the 4th respondent to recover the amount from the applicant. He also directed the 4th respondent to work out the amount of over payment beyond 30.06.2018 and recover the same as well. Aggrieved by the same, the applicant has approached this Tribunal for quashing Annexures-A1 and A2 and seeks a direction to the respondents to fix the pension as if he is entitled to get corresponding scale of pay of the post held by him as on the date of retirement is level-5 of the pay matrix.

On behalf of the respondents 1 to 3, the 3rd respondent filed a reply statement contending that the Original Application is not maintainable. By a common order dated 21.12.2016 this Tribunal had disposed of identical cases in O.A.Nos.389/2015, 850/2015 etc. holding that the applicants therein are not entitled to get revised pension as claimed. The applicant had retired from service as Fitter Gr.I in scale of Rs.1320-2040. He was granted pension of Rs.697/- with effect from 01.11.1994. As evident from Annexure-A1 the corresponding revised scale of Rs.1320-2040 in the 5th Pay Commission is Rs.4000-100-6000. Later, the Railway Board had issued orders granting improved pay scale of Rs.4500-7000 to certain categories, who were earlier granted pay scale of Rs.4000-7000, who were Skilled Artisan Grade I. As seen from Annexure-R2, specific mention has been made therein that the revised scale will take effect from 01.01.1996. Therefore, the applicant, who retired on 31.10.1994 as Loco Fitter cannot claim the benefit of the revised scale of Rs.4500-7000. On the wrong notion that the corresponding scale of the applicant in the 5th Pay Commission is Rs.4500-7000 he was granted pension at Rs.2,250/- with effect from 01.01.1996 being 50% of the minimum of the upgraded scale of Rs.4500-7000, to which he was not entitled. During the revision in 6th Pay Commission also the applicant was paid consolidated pension of Rs.5,085/- with effect from 01.01.2006. Thus the applicant was given pension at a higher rate erroneously which was applicable only to those who had drawn pay scale of Rs.4500-7000. On such erroneous calculation his pension was fixed at Rs.14,354/- during revision in the 7th Pay Commission period also. After realising the error, the 3rd respondent decided to correct the mistake and an amount of Rs.1,75,516/- was found to be over paid during the period from 01.01.2006 to 30.06.2018 which was decided to be recovered from the pensioner. Thus, Annexure-A1 was issued to correct the mistake occurred in the estimation of pension. The 4th respondent was also requested to work out the excess amount paid from 30.06.2018 onwards. This being the position, the applicant cannot have any grievance and therefore the Original Application is sought to be dismissed. The 3rd respondent filed an additional reply also contending that the applicant had given an undertaking marked as Annexure-R8, whereby had undertaken to refund the excess amount drawn from the Railway, thus the applicant is estopped from raising such contentions.

I heard the learned counsel on both sides. Respective contentions were reiterated by the learned counsel on both sides. The grievance of the learned counsel is that the applicant is now 87 years old, had retired from service 28 years before, that the pension was refixed and reduced unilaterally without giving notice to him and such a course is illegal. He also relied on the decision reported in Thomas Daniel v. State of Kerala and others [2022 LiveLaw (SC) 438].

On the other hand, the learned Standing Counsel pointed out that the applicant had retired from the post on 31.10.1994 while drawing the scale of pay of Rs.1320-2040 on 31.10.1994. The corresponding revised scale during the 5th Pay Commission was Rs.4000-6000. But on a wrong notion, when upgradtion was granted to certain category of employees in the Skilled Artisan Grade, who were given hike in the scale of Rs.4500-7000 with effect from 01.01.1996, the applicant was also given benefit facilitating to draw pension as if he was entitled to get scale of Rs.4500-7000. Thus he was granted pension on a higher scale. The mistake continued even in the successive pay revisions also. When the mistake was found out, the 4th respondent was requested to recover the excess amounts paid, which cannot be legitimately called in question by the applicant.

Evidently, the applicant had retired from service on 31.10.1994 as Loco Fitter Grade-I, while drawing the scale of Rs.1320-2040. From Annexure-R1 it is clear that the corresponding scale during the 5th Pay Commission, effective from 01.01.1996 is Rs.4000-100-6000. Annexure-R2 indicates that Railway had decided to give a special treatment to Skilled Artisan Grade-I, holding scale of Rs.4000-6000 to Rs.4500-7000 with effect from 01.01.1996. The applicant was neither a Skilled Artisan while retiring from service nor he was in service from 01.01.1996. Therefore, he cannot claim pension as per the hike given under Annexure-R2. Annexure-A5 indicates that he was granted pension from 01.01.1996 at the rate of Rs.2,250/-, as if he was drawing salary in the pay scale of Rs.4500-7000 at the time of retirement, which is patently a mistake. Similarly, revisions were made during the successive Pay Commission reports which emanated from the initial mistake. Ultimately, the mistake was found out, then the 3rd respondent decided to rectify the same and to recover the excess amount granted to him.

It has been pointed out that from 01.01.1996 onwards he was granted pension at the rate of Rs.2,250/- whereas the basic pension was only Rs.2,128/-. Similarly, from 01.01.2006 during the 6th Pay Commission his basic pension was revised to Rs.5,585/- whereas the actual amount due was only at the rate of Rs.4,811/-. Again, during the 7th Pay Commission he was entitled to get basic pension only at the rate of Rs.13,950/-, but was fixed at the rate of Rs.14,354/-. The relevant portion of Annexure-A1 reads thus:

“The Above Pensioner was sanctioned Revised Pension of Rs.2250/- w.e.f. 01.01.1996, Rs.5585 w.e.f 01.01.2006 & 14354/- w.e.f 01.01.2016 erroneously. He allowed pension based on higher IVth PC, Vth PC & VI th PC replacement pay scales of Rs 1320- 2040, 4500-7000/ GP 2800 respectively instead of the scale Rs 1320, 2040,4000-6000/GP 2400/- which were normally admissible. The pension admissible in the subject case is Rs 2128/-w.e.f 01.01.1996 and Rs 4811/- w.e.f 01.01.2006.

While revising the Pension for Pre 2016 retirees based on the notional pay as per 7th PC recommendations the above anomaly came to light.”

This error was sought to be rectified and excess amount was directed to be recovered from the applicant. After hearing counsel on both sides and perusing the materials made available before the Tribunal, I have no doubt that there is absolutely no basis in the grievance of the applicant that he should have been granted pension at the corresponding scale of Rs.4500-7000 with effect from 01.01.1996. Therefore, there is justification in rectifying the mistake and seeking recovery of the amount paid in excess.

At the same time, it is true that he had given an undertaking. But the decision in State of Punjab and others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] has to be followed by this Tribunal. In the said decision, after making survey of various authorities rendered by the Supreme Court, the Apex Court has laid down the following guidelines.

“12. 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.”

In the decision, the Hon'ble Supreme Court has considered various circumstances in which recovery of monetary claims may become necessary and whether such recovery should be interdicted as a matter of the discretion of the Court depending upon factual situations. Even though it is not a matter of right of the applicant, when over payments are patent, while considering the question of recovery, in the light of the parameters, there is justification in interdicting the same.

As noticed earlier, the applicant is an octogenarian, now 87 years old. The recovery has been sought after lapse of more than 25 years. Secondly, such mistake had happened on the volitions of the officials of the respondents 1 to 3. The respondents have no case that the applicant had played any role in the matter of effecting wrong estimation of pension. He did not make any representation nor any act of fraud can be attributed against him. It appears that till the service of Annexure-A1 communication he had not known about the excess payment being made from 01.01.1996 onwards. Moreover, he was working at a lower category in Group-C of service. That means, the case of the applicant falls within category Nos.(i), (ii) and (iii) in paragraph 12, quoted above despite the fact that he had given an undertaking. Therefore, the respondents are restrained from recovering the amount drawn in excess till the service of Accexure-A1.

The Original Application is allowed to the above extent. However, it is made clear that this order will not stand on the way of effecting payment on the correct estimation of pension in future. No costs.

Dated 9th November, 2022