Satya Pal Singh vs Union Of India And Ors

Briefly, the facts of the current O.A. are that the applicant was initially appointed in the Railways to the post of Assistant Station Master on 02.10.1970. In 1997, he was medically de-categorized and absorbed in the Ministerial cadre. He retired from the post of Chief Office Supdt. on 30.04.2014. On 01.07.2013, he was granted an increment and his pay was fixed at Rs.26420/-. On the date of retirement on 30.04.2014, he was getting the same pay.

The applicant came to know from the retirement documents that his pay has been reduced from Rs.26420/- to Rs.25930/-. On 04.06.2014, the applicant submitted a representation for restoration of his pay and for releasing his gratuity amount. The respondent No.3 informed the applicant vide order dated 18.07.2014 that his pay has been fixed erroneously in Grade Pay of Rs.6500-10500 + Rs. 7700/- w.e.f. 30.04.2003 instead of Rs.7500/-, which has since been corrected vide Office Order No. 729E/22/2241/P-1 dated 25.04.2014.

The applicant states that the respondents not only reduced the basic pay of the applicant but recovered the differential amount of Rs.76000/- from his gratuity. The applicant submitted another representation dated 18.07.2014 to the competent authority to restore his pay to which no reply has been received.

It is averred that in the order dated 16.04.2003 (Annexure A-4) it was stated clearly that the pay of the applicant was fixed at Rs.7500/- on promotion as OS-I in the pay scale of Rs.6500-10500/-, hence, it is wrong to state that pay of the applicant was fixed at Rs. 7700.

The applicant has further raised the issue of discrepancies in his leave account, reduction in leave encashment without show cause notice and interest on delayed payment of gratuity.

Aggrieved by the action of the respondents, the applicant has sought the following reliefs:-

"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 18.7.14 (Annex.A/1) and restore the pay of the applicant at the stage of Rs.26420/- at the time of retirement with all consequential benefits including the fixation of pay and retirement benefits and arrears of difference of pay and allowances with interest and refund of recovered gratuity amount with interest.

(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant the balance leave encashment of Rs.8643/- with interest for 300 days leave.

(iii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to grant the interest at the rate of 18% on the delayed payment of gratuity and other retirement benefits from the date of retirement to the date of payment.

(iv) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."

The applicant has relied on the following case laws:-

(i) State of Punjab Vs. Rafiq Khan & Ors., decided by Hon'ble Supreme Court on 18.12.2014.

(ii) Babu Lal Jain Vs. State of M.P. & Ors., (2006) 6 SCC Para-15.

(iii) S. Leikh Abdul Rashid & Ors. Vs. State of J&K, JT 2008(1)SC 127.

(iv) UOI Vs. Narendra Singh, 2008(1)SCC(L&S)547.

(v) Duryodhan Lal Jatav Vs. State of UP & Anr., 2005(3)ATJ 56.

(vi) Shyam Babu Verma Vs. UOI & Ors., 1994(2)SCC 521.

(vii) State of Orissa Vs. Advail Charan Mohandty, 1995 Supp.(1)SCC 470.

(viii) UOI Vs. Sitam Ram Dheer, 1994 SCC(L&S) 1445.

(ix) Nand Kishore Sharma Vs. State of Bihar, 1995 Supp.(3) SCC 722.

(x) State of Karnataka Vs. Mangalore University Non-Teaching Employees Assn., 2002(3)SCC 302.

(xi) S.K. Dua Vs. State of Haryana, (2008) 3 SCC 44.

(xii) Full Bench decision of Hon'ble Punjab & Haryana High Court in the case of A.S. Randhava Vs. State of Punjab & Ors., 1974(4)SLR 617.

(xiii) Nalini Kant Sinha Vs. State of Bihar & Ors., 1993 Supp.(4)SCC 748.

(xiv) Punjab State Electricity Board & Ors. Vs. Kuldip Singh, (2005) 13 SCC 372.

(xv) Gammon India Limited Vs. Niranjan Das, 1984(1) SC 509.

(xvi) Parmasivan & Ors Vs. UOI & Ors., (2003)12 SCC 270.

(xvii) Govt. of West Bengal Vs. Tarun K. Roy & Ors., (2004) 1 SCC 347.

(xviii) UOI Vs. Justice SS Sandhawalia, 1994(2)SCC 240.

The respondents in their counter affidavit state that the impugned order dated 18.07.2014 has been passed in accordance with rules and there has been no arbitrariness or illegality involved in re-fixing the pay of the applicant at the time of his retirement w.e.f. 30.04.2013.

The respondents contend that the applicant attended training of ASM at ZTC Chandousi w.e.f. 22.11.1976 to 21.08.1977, and resumed his duty as ASM w.e.f. 02.10.1977. He was absorbed as OS-I in the pay scale of Rs.5000-9000 in Optg. Department vide letter No. 758E/270/P-1 dated 21.04.2003, from where he retired on 30.04.2014. At the time of settlement of dues, it came to notice that due to some clerical error, he was given Grade Pay of Rs.7700/- w.e.f. 30.04.2003. Accordingly, his Grade Pay was revised to Rs. 7500/- w.e.f. 30.04.2003 vide letter No. 727/22/2241/P-1 dated 24.04.2014 though no show cause notice was issued. However, the applicant was duly informed in July, 2014 that his pay had been erroneously fixed in grade pay of Rs.7700/- w.e.f. 30.04.2003 instead of Rs.7500/-, which has since been corrected.

In the rejoinder, the applicant states that the respondents have reduced his pay from Rs.26420 to Rs.25930, and also recovered Rs.76000/- from his gratuity without giving him a show cause notice, which is totally illegal. Though the respondents in their impugned order dated 18.07.2014 have referred to a letter dated 25.04.2014 but it was never communicated to the applicant. It is reiterated that the order dated 16.04.2003 (Annexure A-4) mentions that pay of the applicant was fixed at Rs.7500/- and not Rs.7700/-, as alleged.

During the course of hearing, learned counsel for the applicant Sh. Yogesh Sharma forcefully argued that though the respondents have stated in the impugned order dated 18.07.2014 that the applicant's pay has been fixed erroneously in grade Rs.6500-10500 Rs.7700/- w.e.f. 30.04.2003, and corrected vide Office Order dated 25.04.2014, it is factually incorrect. Drawing my attention to Annexure A/4, he pointed out that the order dated 16.04.2003 clearly shows that the pay of the applicant was fixed at Rs.7500/- on promotion as OS-I in Grade Rs.6500-10500 and never at Rs.7700/-, making the recovery and refixation of his pay, fallacious. He argued that in any case, the recovery affected by the respondents is not on account of any fraud or misrepresentation by the applicant, hence there was no question of recovery of excess payment as held in the Landmark judgment of Hon'ble Supreme Court in the case of State of Punjab and Ors. Etc. Vs. Rafiq Masih (White Washer) etc., Civil Appeal No. 11527/2014 dated 18.12.2014.

Per contra, the learned counsel for the respondents Sh. Sat Pal Singh reiterated that the respondents have a right to correct any inadvertent mistake committed by them; as done in the instant case. The recovery and the revision of pay, result of an erroneous pay fixation w.e.f. 30.04.2003 is thus legal and just.

On going through the facts of the case, I find that the letter/order dated 16.04.2003 (Annexure A-4) reads as under:-

"The following OS-II grade Rs5500-9000 (RPS) of Operating Clerical group are promoted as OS-I in grade Rs.6500-10,500 against an existing vacancies and posted in Operating Branch.

S.No.

Name/Father's name

Desgn./Stn.

Posted on Promotion in O.S.I in Optg. Branch

Pay fixed

S/Shri

1.

Satya Pal/

Nathu Singh

O.S.II/Optg.Br.

T. Branch

7500/-

2.

S.K. Gupta

K.C. Gupta

OS-II/Optg.Br.

T. Branch

7300/-

The above orders may be carried out promptly under advise to this office. Their promotion is subject to 2017/W.P D.S AR/Vig/SPE clearance in any against them. Option under PS No. 7937 be submitted within one month afterward, it will be not considered."

The contention of the applicant that on promotion as OS-I (in the scale of Rs.6500-10500), his pay was fixed at Rs. 7500/- and not Rs. 7700/-gets support from the aforementioned letter dated 16.04.2003. No other document showing that the pay of the applicant was fixed at Rs.7700/- (erroneously), has been produced by the respondents to support this contention. It is not clear as to when was the office order dated 16.04.2003 revisited or amended.

The case of the respondents is that the wrong fixation of pay resulted in over payment of Rs.76,000/-, which has now been recovered (as the difference of pay and allowances) from the gratuity of the applicant. For the action of the respondents to be legally sustainable, there should be substantial evidence to justify the action of the respondents. No such order, fixing the pay of the applicant at Rs.7700/-has been produced or mentioned in the counter. The respondents have produced a letter/note dated 25.04.2014 (Annexure R-2) in which the change of pay has been mentioned. The document dated 25.04.2014, showing the revised pay, appears to be an internal document prepared at the section level.

There is, however, no record or order of pay fixation of the applicant at Rs.7700/-. In the absence of which, I have no option but to set aside the impugned order dated 18.07.2014. The respondents are directed to refund the recovered amount of Rs.76000/- to the applicant, and restore his pay as it was at the time of his retirement. It is also seen that the gratuity was paid to the applicant five months after his superannuation for no fault of his. There was no vigilance or departmental case pending against the applicant on the date of his superannuation, so the delay was unwarranted. The respondents are directed to pay interest on the delayed payment of gratuity (excluding 90 days from the date of superannuation) till the date the payment was made, at GPF rates.

The applicant has sought multiple reliefs in the O.A., which cannot be allowed. Hence, the applicant's other prayers cannot be dealt with in this O.A. The same may be taken up separately before the appropriate forum, as per law. O.A. is allowed as above. No costs.