Shiv Kumar vs Union Of India Through And Ors

The facts of the current O.A. are that the applicant joined the Northern Railway on 21.02.1981as Khalasi where he was given temporary status w.e.f. 01.05.1983. The applicant was designated as Ferro Printer w.e.f. 15.04.1983 and given the pay scale of Rs.950-1500. After the bifurcation/extension of zones, the applicant was classified in NWR though earlier he was working in Northern Railway, Delhi Division. The applicant"s lien was retained by Northern Railway and he was not repatriated so he continued to perform his duty at his earlier place of posting. After his retirement from Northern Railway on 31.03.2016, the Pension Payment Order (PPO) was also issued by Northern Railway.

The applicant states that his order of retirement was issued by Construction Department of NWR on 31.03.2016. This information was given to the Cadre Controlling Authority i.e. General Manager, Northern Railway. In this regard, certain objections were raised by the Pension Department leading to internal correspondence between the respondents. The applicant took up the matter of payment of his retiral dues with the respondents. On 28.02.2017, a letter was issued by Deputy Chief Engineer (Construction) regarding excess payment of MACP, leave encashment and transfer grant recovered from DCRG of the applicant. The payment was made to the applicant and PPO issued in the month of May, 2017. However, the recovery was affected without giving reasonable opportunity to the applicant by deducting the alleged excess amount of Rs. 1,55,604/-. The applicant represented on 01.10.2017 stating that no recovery after retirement is permissible in terms of Railway Board"s Circular/Instructions as well as the law laid down by the Hon"ble Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613. Aggrieved, the applicant has filed the current O.A. seeking the following reliefs:-

"(a) To direct the respondents to refund the amount of Rs.1,55,604/- immediately as the same was recovered against the Rule and Regulation and judicial pronouncement on the subject, accordingly recovery may be held as illegal and arbitrary.

(b) To direct the respondents to pay the interest @18% per annum against the payment of pension and pensionary benefits from 01.04.2016 till the realization of the actual payment.

(c) To allow the original application of the applicant with costs."

In the counter affidavit, the respondents state that the qualifying service of the applicant has been calculated as per Railway Board"s Letter dated 04.12.2009 (Annexure-R-1). It is mentioned that the applicant joined the Northern Railway on 21.02.1981 as casual labour Khalasi w.e.f. 01.01.1984 in terms of Railway Board"s letter dated 11.09.1986 and 05.02.1987 and was not brought in the capacity to the post of Ferro Printer. He was given temporary status in the category of Casual Labour Khalasi in pay scale of Rs.196-232 on pay Rs.196/- w.e.f. 01.01.1984 in terms of Railway Board"s letter No. E/NG/11/84/CL/41 dated 11.09.1986 and SEN/C/BKN letter No. 22-E/SEN/C/BKN dated 05.02.1987 and not brought in the capacity to the post of Ferro Type/Printer. The applicant was not replaced in pay scale of Rs.925-1200 in terms of order dated 05.02.1987. In fact, by this letter only date of temporary status was revised/changed from 01.01.1986 to 01.01.1984 in the same grade of Rs.196-232 in terms of Railway Board"s letter No.E/NG/11/84/CL/41 dated 11.09.1986 and SEN/C/BKN letter No. 22-E/SEN/C/BKN dated 05.02.1987. The designation was inadvertently been written as Ferro/Typer instead Ferro Khalasi as no such designation exist in the avenue of promotion. It is submitted that the applicant has never given the pay scale of Rs.950-1500 w.e.f. 01.01.1984 with pay fixed @Rs.960/-. In fact, the pay of the applicant was arrived at Rs.960/- w.e.f. 01.01.1990 in grade Rs.925-1200 (RPS).

Further, his temporary status was revised from 01.01.1986 to 01.01.1984 in grade Rs.196-232 in terms of Railway Board"s letter dated 11.09.1986 as per judgment of Hon"ble Supreme Court. The letter dated 31.07.1990 is merely transfer order from Merta Road to Dy. CE/C/Jodhpur on the same pay Rs.960/- in grade Rs.825-1200. It is further submitted that the applicant was not brought in grade of Rs.950-1500 (RPS) on pay of Rs.960/- by virtue letter dated 31.07.1990. The applicant was promoted on ad hoc basis in Grade of Rs.950-1500 (RPS) from grade of Rs.825-1200 w.e.f. 15.04.1993.

4.1 It is further stated that the Cadre Controlling Authority of the applicant was DRM, Delhi Division of Northern Railway and not General Manager, Northern Railway. The letter dated 03.11.2016 was not received at Banswara (NWR) but a communication was received in the office for compliance of Finance Department observation regarding "MACP not clear when granted, Last basic pay Rs.14760/- how arrived at, clarify regarding DA&R & Vigilance Clearance, NDC regarding recoveries of MC&IC etc."

The respondents state that after detailed examination of the complete service record of the applicant, the mistake relating to wrong fixation of pay @Rs.13500/- instead of Rs.11890/- w.e.f. 21.03.2012 was pointed out. Due to this wrong fixation, excess payment for Rs.155604/- (excess MACP arrear from 21.03.2012 to 30.11.2015 for Rs.149522/- +excess leave encashment of Rs.4422/-and excess payment of transfer grant for Rs.1760/-) made to the applicant in the month of May, 2016 came to light. Northern Railway, Delhi Division was advised vide letter dated 28.02.2017 for arranging recovery from the settlement of the applicant.

The respondents submit that in the designation column, Ferro-Typer has inadvertently been written as no such type of designation exist. It is submitted that before issue of PPO, the pay of the applicant was correctly re-fixed from Rs.14760/- to Rs.13000/- due to wrong fixation at the time of 2nd MACP from 21.03.2012. It is submitted that applicant was granted 2nd MACP w.e.f. 21.03.2012. It is submitted that applicant was granted 2nd MACP w.e.f. 21.03.2012 in pay scale of Rs.5200-20200 with GP Rs.2000 vide letter dated 29.10.2015. Accordingly, pay fixation was done by Dy.CE/C/Banswara Office Order No. NWR/BNSW/S&C/483417001 dated 28.11.2015 in which pay was wrongly fixed from Rs.9200+1900=11100 (GP-1900) to Rs.13500 (11100+393 (one increment@3%)+2000=13493, rounded off to Rs.13599) w.e.f. 21.03.2012. Revised fixation has been done as per Dy CE/C/Banswara Office Order No. NWR/BNSW/S&C/483417001 dated 13.01.2017 as Rs.9540+1900+350+100=11890 w.e.f. 21.03.2012 in Rs.5200-20200 (GP-2000). Due to mistake in fixation on 28.11.2015, the payment of arrear for the period 21.03.2012 to 30.11.2015 amounting to Rs.1,49,522.00 was made to the applicant in the month of May, 2016 i.e. after superannuation on 31.03.2016. Also payment of leave encashment and transfer grant was made to the applicant on wrongly calculated last pay on 31.03.2016. Further, regular payment of salary for the period 01.12.2015 to 31.03.2016 was made on wrongly fixed basic pay. As per advise of Sr.DPO Delhi/NR the pay of the applicant was rechecked and revised fixation of pay after 2nd MACP was done duly vetted by the NWR/Construction-HQ Finance and accordingly recovery for excess payment of period 21.03.2012 to 31.03.2016 Rs.1,49,422, excess payment of leave encashment Rs.4422/- and excess payment for transfer grant Rs.1760/- total Rs.1,55,604/- was advised to be recovered form settlement dues of the applicant vide Dy.CE/C/Banswara Office letter No. NWR/BNSW/S&C/483417001 dated 28.02.2017 duly vetted by the NWR/HQ Finance. Hence recovery of Rs.1,55,604/- has been correctly made from the settlement dues of the applicant as per rules. Also PPO was issued by NR for the revised and correct last pay of Rs.13000/- of the applicant. Thus, the recovery has been correctly made from the settlement dues of the applicant as per rules.

In the rejoinder filed by the applicant, it is averred that the applicant was given promotion in the grade of Rs.950-1500 alongwith others. In terms of judgment in the case of Rakesh Kumar vide Para-55(iii) ad hoc period is liable to be counted 100%, hence, his entire service before regularization should be counted for the purpose of ACP/MACP as well.

I have gone through the facts of the case. A detailed analysis has been provided by the respondents in their counter affidavit, giving sequence of events which led to some confusion and resulted in wrong fixation of pay of the applicant. The entire excess payment of Rs.1,55,604/- has three components, namely, the excess MACP arrears, transfer grant and leave encashment. There is no dispute that the said amount was recoverable from the applicant. The issue to be adjudicated is thus whether this amount could have been recovered from the applicant in view of the law laid down by the Hon"ble Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih & Ors., 2014(8)SCALE 613.

The respondents have rectified the error committed by them at the time of issue of PPO of the applicant. Undoubtedly, the respondents are duty bound to rectify any discrepancy in fixation of the pay, which is what has been done. However, in Rafiq Masih (supra), the Hon"ble Supreme Court has laid down certain situations where recoveries from the employers are impermissible in law. The same are as follows:-

"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."

It is not disputed that there is no fraud or misrepresentation on part of the employee for wrong fixation of pay. The applicant belongs to Group-C and following the conditions laid down by the Hon"ble Supreme Court in the case of Rafiq Masih (supra), the recoveries belonging to Class-iii and Class-iv (Group-C & D) and also from retired employees are impermissible in law. In the present case, the applicant retired from service on 31.03.2016 and belongs to Group-C. Thus, the amount of recovery of Rs.1,55,604/- against the applicant is impermissible.

In view of the aforementioned facts, the respondents are directed to refund the amount of Rs. 1,55,604/-, recovered from the applicant. It is a fact that the retiral dues were received almost 14 months after the applicant retired from service. The respondents are directed to pay interest on the retirement dues of the applicant from 01.07.2016 till the date the dues were released to him at GPF rate. This exercise may be completed within 03 months from the date of receipt of a certified copy of this order.

The respondents have given detailed reasoning as to why the pay of the applicant was reduced/refixed. Hence, the same is held to be in order. O.A. is allowed with these directions. No costs.