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Judgment
Sanjeeva Kumar, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s) :-
(i) to refund the illegally deducted amount of Rs.1,87,083/- (One Lacs Eighty seven thousands and eighty three only) from the DCRG of the Applicant along with suitable penal interest against the Respondent.
(ii) to restore the basic pay Rs.66,000 which was reduced to Rs.64,100/ vide annexure A-I.
(iii) to pay the differences of all the Settlement/Retiral Dues in terms of opening paragraph to the instant O.A. after summoning its original record from the Respondents with suitable interest and penal interest against the Respondents.
(iv) to pay arrears of difference of full and final Pension from the date it became due by revising the Pension of the Applicant with suitable and penal interest against the respondents.
(v) any other relief, which this Hon'ble Tribunal may deem fit, just and proper in the circumstances of the case, may also be passed.
(vi) cost of the present case may be awarded in favor of the Applicant and against the respondents.”
The facts of the case, in brief, as indicated in the OA are that the applicant was initially appointed as Technician in grade Rs.950-1500 on 15.10.1989 after completion of six months training. The applicant's pay promoted as Fitter in grade Rs. 1200-1800 from 01.08.1996 and further promoted as JE in grade Rs. 5000-8000 from 07.01.1998. Thereafter, the applicant was promoted as SSE in grade Rs.6500-10500 from 28.03.2008 and the grade was revised P.B.4600/-. The applicant has retired from service on 31.07.2018 on superannuation. Though Basic Pay of Rs.66.000/- was shown in pay slip issued on 31.07.2018, the pay of the applicant was reduced from Rs.66,000/- to Rs.64,100/- without giving him any show cause notice.
It is further submitted that after the retirement of the applicant settlement dues were made on Basic Pay Rs.64,100/- instead of Rs.66,000/- and a recovery of Rs.1,87,083/- was made from DCRG without assigning any reason to him. The learned counsel for the applicant states that this has also impacted his retiral benefits adversely.
The respondents in their counter reply have submitted that the pay of the applicant was revised from Rs.66,000/ to Rs.64,100/ at the time of retirement. While checking from Service Record, it was found that the pay of the employee was erroneously fixed on 07.01.1999 as Rs.5150/- which was to be fixed Rs.5000/- at the time of promotion as JE-II. Accordingly, his last pay was revised from Rs.66,000/- to Rs.64,100/-.
The respondents further submit that the applicant was retired from railway service on attaining the age of superannuation on 31.07.2018. Before finalizing his settlement case, his pay was thoroughly checked and it is pointed out that the pay was erroneously fixed w.e.f. 07.01.1999 i.e. from the date of JE-II in Grade 5000-8000 due to which his last pay is revised @ Rs.64,100/- from Rs.66,000/ which results into the recovery of overpayment of Rs.1,87,083/-, which is reduced from DCRG accordingly.
As per extant rule of Railway Pension Servant Rule vide Para-15 (4) Sub-Cause (b) of Clause (1) & (ii) which contains (i) A claim against the railway servant may be on account of all or any of the following:
(a) Losses (including short collection in freight charges, shortage in stores) caused to the Government or the railway as a result of negligence or fraud on the part of the railway servant while he was in service;
(b) Other Government dues such as over-payment on account of pay and allowances or other dues such as house rent, Post Office or Life Insurance Premia, or outstanding advance,
(c) Non-Government dues.
(ii) Recovery of losses specified in sub-clause (a) of clause (i) of this sub-rule shall be made subject to the conditions laid down in rule 8 being satisfied from recurring pensions and also commuted value thereof, which are governed by the Pension Act, 1871 (23 of 1871). A recovery on account of item (a) of sub-para (i) which cannot be made in terms of rule 8, and any recovery on account of sub-clauses items (b) and (c) of clause (i) that cannot be made from these even with the consent of the railway servant, the same shall be recovered from retirement, death, terminal or service gratuity which are not subject to the Pensions Act, 1871 (23 of 1871). It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the member of his family in the case of a deceased railway servant.
It is therefore argued that the recovery made is as per rules.
The applicant has filed rejoinder refuting the claim made in the counter reply and submitted that the respondents in violation of principles of natural of justice have reduced his pay from Rs.66,000/- to 64,100/- and recovery of Rs.1,87,083/- has been made after his retirement without giving him any show cause ποtice.
In support of his contention, the learned counsel for the applicant relies upon the decision of the Hon'ble Supreme Court in State of Punjab & others Vs Rafiq Masih (White Washer) AIR 2015 SC 696 wherein conditions have been specified where such recoveries are not admissible. The Ministry of Railways has also issued letter under RBE No.72/2016/F.No.2016/F(E)II/6/3 dated 22. 06.2016.
The applicant also relies upon the recent judgment passed by the Hon'ble Supreme Court in Civil Appeal No.7115 of 2010 in Thomas Daniel vs. State of Kerala & Ors dated 02.05.2022 wherein it is held as under :-
"(9) This Court in a catena of decisions has consistently held that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if recovery in order. This Court has further held that if in a given case, it is proved that an employee had knowledge that payment was in excess of what was due or wrongly paid, or in cases where error is detected or corrected in the short time wrong payment, the matter is being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case for recovery of amount paid in excess."
I have heard both the parties and also perused the pleadings on record, including the counter reply and the rejoinder.
It is not in dispute that the excess payment made to the applicant was not on account of any misrepresentation or fraud on the part of the applicant. As admitted by the respondents, the discrepancies arose on account of wrong fixation of pay way back in 1999. The applicant had no knowledge that the payment received was in excess of what was due or wrongly paid. Also the said recovery was made when the applicant was not in service and had retired. In State of Punjab & others Vs Rafiq Masih (White Washer) (supra), the Hon'ble Supreme Court held as follows:
"18. 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 principle enunciated above, to my mind, applies to a situation such as in the present case more specifically propositions at i, ii and iii. Moreover, the applicant to whom the payment was made in the first instance was never placed on notice nor he was asked to undertake that any payment found to have been made in excess would be required to be refunded.
In view of above, the OA is partly allowed to the extent that the deducted amount of Rs.1,87,083/- from the DCRG of the applicant will be refunded by the respondents with interest as per GPF rates. The needful in compliance of the above order may be done as expeditiously as possible and preferably within a period of 8 weeks from the date of receipt of a certified copy of this order. However, I do not find any infirmity in the pay calculation done by the respondents to reduce the basic pay of the applicant from Rs.66,000/- to Rs.64,100/-. No order as to costs.