AI Structured Summary
Not yet generated for this judgment
Judgment
The applicant was appointed in Delhi Transport Corporation (DTC) as Conductor on 24.03.1982. He was brought on monthly rate of pay as Conductor w.e.f. 24.09.1982. He was granted the first MACP w.e.f. 01.07.2009 and his basic pay was raised to Rs.11360/- with grade pay of Rs.2000/-. He was also granted second MACP w.e.f. 13.08.2013 and his basic pay was raised to Rs.13600/- with grade pay of Rs.2400/-. On 31.10.2016, he superannuated from the services of DTC . Without informing the applicant, an amount of Rs.76178/- was recovered from his salary from September, 2014 to September, 2015, which is illegal and arbitrary. Again an amount of Rs.1,33,137/- was recovered from the retiral benefits of the applicant (DCRG), in contravention of Do P&T Instructions. The applicant submits that in his service book last basic pay drawn by the applicant has been shown as Rs.14410/- but the certified copy of the relevant page of service book shows his basic pay as Rs.14,870/-. Thus, his pension has not been calculated correctly putting irreparable mental and financial loss to him. Aggrieved, the applicant has filed the current O.A. seeking the following relief:-
"(i) The applicant prays to the Hon"ble Tribunal to direct the respondent to immediately refund the amounts of Rs.1,33,137/- and Rs.76,178/- recovered illegally and in arbitrary manner from the terminal benefits/salary of the applicant.
The applicant prays to the Hon"ble Tribunal to direct the respondent to get his pension recalculated accurately taking into consideration the last basic pay drawn by him as Rs.14870/- per month and ensure disbursement of arrears of pension within a short spell of time."
In counter, the respondents have raised a preliminary objection stating that the present O.A. suffers from delay and laches since the applicant superannuated from DTC w.e.f. 31.10.2016 and the current O.A. has been filed in December, 2017.
The respondents contend that an amount of Rs. 76,178/- was deducted from the salary of the applicant between September, 2014 to September, 2015 on account of wrong fixation of salary after grant of 1st ACP. Similarly, the amount of Rs.1,33,137/- was deducted the gratuity of the applicant being excess amount paid to the applicant due to wrong fixation of his pay after being granted first ACP and second MACP. Both the recoveries, they aver, are justified. Hence, the O.A. is liable to be dismissed on delay and merit, as well.
In rejoinder, the applicant has reiterated the grounds already raised in the OA. He has also placed reliance on the decision of Hon"ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613.
I have carefully gone through the facts of the case and heard both sides.
5.1 The grievance of the applicant is that an amount of Rs. 1,33,137/- was recovered from his gratuity during October, 2016, a few days before his retirement. Similarly, an amount of Rs. 76,178/-has been recovered from the monthly salary of the applicant between September, 2014 to September, 2015. The contention of the applicant is that the entire amount has been recovered illegally from his salary and from his gratuity in view of the judgment of Hon"ble Supreme Court in the case of Rafiq Masih (supra).
5.2 The second prayer of the applicant is regarding wrong fixation of his pension by the respondents. The applicant has stated that the last basic pay drawn by him has been shown as Rs.14,870/-, in the service book, whereas the respondents have sanctioned his pension by taking his pay as Rs.14,410/-, which is incorrect, as per the entry in his service book.
5.3 Per contra, respondents" case is that the applicant was erroneously granted the higher grade pay, due to which said recovery was made. As far as the recovery aspect is concerned, the same is squarely covered by the judgment of the Hon"ble Supreme in the case of Rafiq Masih (supra). The said excess payment was not on account of any fraud or misrepresentation by the applicant. The recovery made from the applicant, therefore, falls with the following categories, which have been held to be impermissible in law, as per the afore-mentioned judgment:-
"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."
There cannot be any ambiguity that the judgment of Hon"ble Supreme Court in the case of Rafiq Masih (supra) is law of the land and applicable to everyone. I, therefore, hold that the recovery of Rs. 1,33,137/- and Rs. 76,178/- has been recovered illegally from the terminal benefits/salary of the applicant and should be refunded to him immediately and in any case not later than three months from the date of receipt of a certified copy of this order.
5.4 The respondents have produced Annexure R-3, which shows that the pay of the applicant on 01.07.2016 was Rs. 14,410/-. However, as per (Annexure A-9) the document produced by the applicant in O.A., his pay as on 01.07.2016 has been reflected as Rs. 14,870/-, based on which his pension has been fixed at Rs.14,710/-. In view of the two different entries in the records of the official records, for the same date of 01.07.2016, the respondents are directed to revisit the case of the applicant by getting the matter re-examined regarding the exact last basic pay drawn by the applicant on the relevant date, and get his pension fixed correctly. This exercise must be completed within 03 months from the date of receipt of a certified copy of this order.
The O.A. is allowed. No costs.