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Judgment
Pramod Kumar Das, Member (A)
The nub of the grievance of the applicant, retired from service on 30.06.2020 as Signal Maintainer-I, is that the recovery of an amount of Rs. 4,59,560/- from his retirement dues is highly illegal since he is in no way responsible even if it is held that the amount was not due to him but paid to him by the respondents-department. Hence, by placing reliance on the decision of the Hon’ble Apex court in the case of State of Punjab Vs. Rafiq Masih & Ors., (2015) 4 SCC 334, and Thomas Daniel Vs. State of Kerala, CA No. 7115/2010, he has prayed to direct the respondents to refund the recovery amount of Rs. 4,59,560/- with interest by quashing the order dated 17.06.2020 (A/5).
Respondents department filed their counter contesting the case of the applicant. The facts and grounds in support of their stand taken in the counter have been reiterated by the Ld. Counsel for the respondents in course of hearing. It is submitted by him that ex-employee, Souri @ Souri Subudhi has filed the instant OA stating his name as Souri Subudhi. But, as per the Service Record, his name was maintained as Souri only without Surname "Subudhi" during the entire period of his service. He was appointed as Substitute Khalasi w.e.f 06.05.1983 at Kota Division. Thereafter, he was posted as substitute Gangman on 21.12.1983 and was subsequently regularized w.e.f 07.06.1989. He was posted as Trolley man on 10.02.1991 and while continuing as such, he was promoted to Sr. Trolley man under the restructuring of Cadre w.e.f. 01.03.1993. On acceptance of his request, he was reverted to the post of Khalasi and posted at Khurda Road (KUR) Division w.e.f. 13.7.1996 in the Scale of Rs. 2,550-3,200/-. Thereafter, he was granted financial up-gradation under ACP w.e.f 01.10.1999 in the Scale of Rs. 2,610-3,540/-, which was subsequently withdrawn as the applicant was earlier granted a promotion in the scale of Rs. 200-250/- w.e.f. 21.12.1983. He was promoted to Khalasi Helper w.e.f. 29.09.2004 and his pay was fixed under Rule-2018 (B) in the scale of Rs. 2,650-4,000/-. He retired from Railway service as Signal Maintainer-I w.e.f. 30.06.2020 on superannuation. In terms of Para-15 of RSPR'93, before his retirement, the applicant's Service Record was reviewed by Personnel & Accounts Department and during review, an irregularity was detected with respect to grant of financial up-gradation under the ACP Scheme w.e.f 01.10.1999. As per Sr.DFM/KUR's letter dated 08.6.2020, the applicant's Pay was recast as per rule vide DRM(P)KUR's Office Order (0.0) No. P/KUR/Bills/S&T/02-855/Re-Cast/2020 dated 16.6.2020 and found that there was over payment of Rs. 4,59,860/-, which was deducted from his retirement dues as per the declaration furnished by him in Form-8 just before his retirement for settlement of his retirement dues. Accordingly, it has been submitted that since the payment made to the applicant was not due to him as per rules, the respondents were well justified in recovering the said excess payment from his retirement dues, which was in pursuance of the undertaking furnished by him in form 8. Hence, this OA is liable to be dismissed.
We have considered the submissions of the parties and perused the record. From the averments in the pleadings which were highlighted in course of hearing by the Ld. Counsel for the respondents, it is established that the excess payment was continuing for over a decade, i.e. from the year 2010, which was recovered from his retirement dues. The applicant was a Group-C employee and retired from service on 30.06.2020 and the alleged excess payment was made over a period of more than five years. It is also not the case of the respondents that the applicant was in any manner was responsible for such over payment due to wrong fixation of pay/grant of ACP. Nothing is forthcoming from the records that any action is taken by the respondents against the officers/official, who is responsible for such wrong payment/allowing the wrong payment to carry for over a period of 10 years and, therefore, this Tribunal do not find any plausible justification for recovering the said amount from the applicant, that too from his retirement dues, which is the sole mean of maintaining the livelihood after retirement of an employee concerned. At this stage, it is worthwhile to place reliance on the decision of the Hon’ble Apex Court in the case of Rafiq Masih (supra), wherein the Hon’ble Apex Court have categorically made clear that 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 and, accordingly, summarised 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.”
On examination of the case in hand with reference to the ingredients made above, this Tribunal is satisfied that the present case qualifies the conditions stipulated under (i) to (iii) and, thus, recovery caused the applicant financial hardship is sine qua non. This Tribunal is not impressed on the submission of the respondents that the recovery being effected based on the undertaking furnished by the applicant in Form 8 and, therefore, cannot be interfered with because, as per the law, based on the undertaking taken at the time of fixation of pay due to promotion/grant of financial upgradation the department may cause recovery but the undertaking furnished at that relevant point of time cannot be equated by the undertaking furnished by the employee in Form 8 at the time of retirement. Thus, the stand of the respondents that undertaking furnished in Form 8 recovery was effected is not sustainable more so since the recovery itself is held to be not permissible under law, obviously, the same cannot be taken as an outstanding dues on the applicant so as to be recovered in pursuance of the undertaking in Form 8. Similarly, this Tribunal is not satisfied on the argument of the Ld. Counsel for the applicant for payment of interest because it is seen that withholding/recovery of the amount was not intentional or deliberate but for the reason of the excess payment made to him, which is now held to be impermissible under law. In view of the discussions made above, the order of withholding/recovery of an amount of Rs.4,59,560/- is hereby quashed and the respondents are directed to sanction and pay the said amount to the applicant on or before 31.05.2024, on receipt of a copy of this order to be furnished by the applicant,
In the result, the OA stands allowed to the extent stated above. Parties to bear their own costs.