Sewa Ram vs Union Of India Through And Ors

Briefly stated, the facts of the current O.A. are that the applicant was appointed in Mechanical (C&W) Department through Railway Recruitment Board/Departmental examination on 31.10.1958. He retired on 31.03.1995 as TXR from Delhi Serai Rohilla after completing 36 years and 05 months of service in Northern Railway in the category of TXR in pay scale of Rs.1400-2399(RPS).

After retirement, the respondent No. 2 issued New Pension Order No. NWR-1995-11424-563214 dated 07.09.2011 to the applicant in pay scale of Rs.1400-2300/5000-8000/9300-34800-GP Rs.4200/-fixing his pension at Rs.6750/- and also paid due arrears to himunder 6 th Central Pay Commission.

However, the applicant was issued another PPO No. 20143305567674 dated 04.02.2014 reducing his pension from Rs.6750/- to Rs.5817/-, which is in violation of Railway Board"s directives. The applicant submitted representations and served a legal notice dated 01.08.2015 requesting the respondents not to reduce his pension and make any recovery from him after a period of more than 08 years.

It is averred that the action of the respondents reducing his pension is illegal & arbitrary and also against the Railway Service Pension (Rules) 1993, notwithstanding the fact that it violates the directions of the Hon"ble Supreme Court. The applicant states that as per Railway Board instructions vide MOP"s Order No. 45/86/97/P-PW(A) Part-III of 24.07.1998 and MOR"s Order No. F(E)III/2000/PNI/13 of 02.03.2000 it has been reiterated that all pensioners and family pensioners should note that in terms of provisions contained in Rule- 70(1) of CCSPR & Rule 9 of RSPR, pension once authorized after final assessment shall not be revised to the disadvantage of the pensioner.

Aggrieved, the applicant has filed the current O.A. seeking the following reliefs:-

"(i) Direct Respondent No.2 not to reduce Pension of the applicant already finally assessed and fixed correctly at Rs.6750/- vide new revised Pension Pay Order No. NWR-1995-11424-563214 dated 07.09.2011 in Scale Rs.1400-2300/5000-8000/9300-34800.

(ii) If reduced illegally & arbitrarily after more than 8 years of Pensioner"s retirement refund the same to the applicant alongwith 9% interest thereon by quashing any such order of reduction of pension.

(iii) Grant any other relief that the Hon"ble Tribunal may deem fit."

In their counter affidavit, the respondents have taken a preliminary objection that the application is barred by limitation and should be dismissed on this ground alone. The respondents contend that the applicant retired from service on 31.03.1995 in the pay scale of Rs.1400-2300/-. The pension of the applicant was fixed as Rs.6750/-by equating Grade of Rs.1400-2300 equal to GP of Rs.4200 in Pay Band of Rs.9300-34800 vide PPo No. NWR-1995-11424-563214 dated 07.09.2011. Whereas the Grade of Rs.1400-2300 of Pre-2006 retirees was placed equal to Rs.4500-7000 in Vth CPC which was further revised after VIth CPC as equal to GP of Rs.2800/- in Pay Band of Rs.5200-20200 vide RBE No.11/2013. The pension of the applicant was again revised as Rs.5817/- vide PPO No.20143305567674 dated 04.02.2014 in accordance with rules, and in accordance with RBE No.11/2013 which clearly shows the corresponding pay scale of Rs.1400-2300 in IVth CPC, as Rs.4500-7000 in Vth CPC, equal to GP of Rs.2800/- in PB Rs.5200-20200 in VIth CPC. As per PPO dated 07.09.2011, his pension was mistakenly sanctioned in Pay Band of Rs.9300-34800 with of GP Rs.4200 in VI CPC, instead of Pay Band of Rs.5200-20200 with GP Rs.2800.

I have carefully gone through the record and considered rival submissions made by both sides at the time of oral hearing. During the course of hearing, learned counsel for the applicant reiterated the submissions made in the O.A. and placed reliance on the judgment of Hon"ble Punjab and Haryana High Court in Civil Writ Petition No.20010 of 2003 (Shiv Kumar Vs. State of Punjab and Ors.) dated 19.12.2003 wherein it was held that if the excess amount is paid to the petitioner on account of no fraud or misrepresentation of facts made by him and there is an incorrect fixation, then no recovery can be made from him. Per contra, the learned counsel for the respondents reiterated the issues raised in the counter affidavit and placed reliance on certain citations in this regard.

In my view, the case in hand is covered by the decision of the Hon"ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613 wherein a few situations have been postulated where recoveries from the employees have been held as impermissible in law. The said para is reproduced below:-

"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."

The applicant gets protection from recovery by virtue of being mentioned under the purview of situations (i), (ii), (iii) & (v) mentioned above. It is a fact that there has been no misrepresentation from the side of the pensioner in getting his pension fixed at a higher rate. The recovery of the excess payment made to the applicant is a result of an error committed by the respondents themselves for which the applicant cannot be held responsible.

However, I do not agree with the contention of the applicant that even if the pension has been fixed erroneously, then the respondents are barred from correcting the same. In their counter, the respondents have explained at length as to how the pension of the applicant got fixed at Rs.6750/- instead of Rs.5817/- and they consequently rectified the mistake. The applicant certainly has no right to enrich himself on account of an inadvertent error committed by the respondents. Hence, the revised PPO dated 04.02.2014 cannot be faulted as far as the refixing of pension at Rs. 5817/- is concerned

However, in view of the law laid down by the Apex Court in Rafiq Masih (supra) the respondents are directed not to recover any excess amount, which might have been paid to the applicant on account of wrong fixation of pay/pension. In case any recovery has been made on this account, the same should be refunded back to the applicant within 03 months from the date of issue of a certified copy of this order. O.A. disposed of with these directions. No costs.