Surendra Kishore Barik vs Union Of India & Ors.

Pramod Kumar Das, Member (A)

The applicant while working as Asst. Pharmacy Officer under the Respondents retired from service on reaching the age of superannuation in the afternoon of 31.05.2023. In letter dated 12.05.2023, he was intimated as under:

“ Sub: Revision of Pay and recovery of excess payment of Pay & DA.

During review of your Service Record by associate accounts, it was noticed that you had got benefit laid down in RBE No.40/2012 dated 23.03.2012 w.e.f. 01.01.2006 for which you were not eligible. As a result, you had been paid excess of Rs 420/- as basic pay und consequential benefits from January-2006 onwards.

Now your pay has been revised from 01.01.2006 and got it vetted by associate accounts. According to this statement, your present pay is fixed to Rs.86.100/- instead of Rs 88,700/- in Pay Matrix Level-8. A copy of the vetted statement is enclosed herewith According to such pay revision/fixation, following excess amount has been paid to you as Pay &DA for the period from 01.01.2006 to 30.04.2023, pet calculation, which will be recovered from your Death-cum-Retirement Gratuity (DCRG)

Pay                  =Rs.2,68,486/-

DA                   =Rs. 69,371/-

Total                =Rs 3,37,857/-”

Alleging no action on his objection filed by him on 15.05.2023 and 22.05.2023 against such recovery, he approached this Tribunal in the instant OA inter alia stating that after the decision of the Hon’ble Apex Court in the case of State of Punjab & Ors Vs Rafiq Masih (White Washer), AIR 2015 SC 696, the DOP&T issued OM on 02.03.2016 putting the conditions under which circumstances the recovery is impermissible from an employee/retiree. The said OM was also adopted by the Railway vide RBE No. 72/2016. Hence, according to him, the refixation of his pay and consequential recovery from his DCRG has caused immense financial difficulties to him and the same is also bad in law. His prayer in this OA is as under:

“……to direct the Respondents to restore the basic pay of the Applicant as on 01.01.2006 (Rs. 19,720/-) and refund of the recovered amount of Rs. 3,37,857/- from DCRG of the Applicant and credit the same to his account with interest till the payment of recovered amount for the ends of justice.

AND

Be further pleased to quash Annexure-A/2 for the ends of justice.

AND

Be further pleased to hold that the Applicant is eligible and entitled for the increment as was given to him on 01.01.2006 for the ends of justice.

AND

Be further pleased to direct the Respondents to restore the pension amount to Rs. 44,350/- per month instead of Rs. 43,050/- per month for the ends of justice.

AND

Any other order(s) / direction(s) / relief(s) as deemed fit in the circumstance of the case may kindly be allowed.”

However, in course of hearing, Ld. Counsel for the applicant has fairly submitted that he confines his prayer insofar as recovery of Rs. 3,37,857/- from the DCRG and does not press the other reliefs sought in this OA. In this regard, he has relied on the decision of the Hon’ble Apex Court in the case of Jogeswar Sahoo vs The District Judge, Cuttack in Civil Appeal No.…….of 2025 (Arising out of SLP(C) No(s). 5918/2024 dated 04.04.2025 and orders of this Bench of the Tribunal dated 06.10.2023 in OA 14/2023 (S.S.Appa Rao Vs UOI & Ors), dated 20.12.2023 in OA 495 of 2021 (E.Satyanarayana Vs UOI & Ors) and dated 11.04.2025 in OA 594 of 2023 (Abhaya Kumar Das Vs UOI & Ors.).

Respondents filed their counter stating that applicant got the benefit laid down in RBE No.40/2012 dated 23.03.2012 w.e.f. 01.01.2006 for which applicant was not eligible and, as a result, he had been paid excess of Rs 420/- as basic pay und consequential benefits from January-2006 onwards. His pay has been revised from 01.01.2006 and got it vetted by associate accounts. Accordingly, his present pay was fixed at Rs. 86,100/- instead of Rs 88,700/- in Pay Matrix Level-8. The excess payment was arrived at Rs. 3,37,857/-. Since, the applicant meanwhile retired from service on 31.05.2023, he was paid the Gratuity minus Rs. 3,37,857/-. According to Ld. Counsel for the respondents, since the excess amount which was not due but was drawn by him was rightly recovered from his Gratuity, which cannot be faulted with.

Ld. Counsel for the both sides during the course of hearing have led emphasis on the points raised in their respective pleadings and after giving due consideration to their arguments, perused the records.

As stated above, since Ld. Counsel for the applicant confines his relief that recovery of Rs. 3,37,857/- from his DCRG is bad in law, we are not inclined to deal with the other part of the stand and relief taken by the applicant in the OA, i.e. as to the correctness of the refixation of his pay is concerned.

In Rafiq Masih (supra), the Hon’ble Apex Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient, as in the present case. Their Lordships considered the situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

“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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the 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 DoP&T vide OM dated 02.03.2016 also issued exhaustive instruction on recovery of wrongful/excess payment made to Govt. servants, which was adopted by the Railways vide RBE 72/2016. As per the aforesaid decision of the Hon’ble Apex Court and the conditions stipulated in the DOP&T OM dated 02.03.2016, the recovery being the excess payment due to wrong fixation of pay starting from 01.01.2006 and such wrong fixation being not attributable to the applicant, he would have been paid full amount of DCRG instead of paying the DCRG after making deduction of Rs. 3,37,857/-, which has caused him financial hardship as alleged by him. We find that the respondents department did so without due application of mind to the RBE No. 72/2016 and law to the extent stated above. Recovery of excess payment made in the circumstances, as in the present case, has also been forbidden by the Hon’ble Apex Court in the case of Jogeswar Sahoo vs The District Judge, Cuttack in Civil Appeal No.…….of 2025 (Arising out of SLP(C) No(s). 5918/2024 dated 04.04.2025. In the aforesaid facts and circumstances of the case, as also the law, we declare that the recovery of Rs. 3,37,857/- from the DCRG of the applicant is bad in law being opposed to the law laid by the Hon’ble Apex Court in the case of Rafiq Masih (supra) and Jogeswar Sahoo (supra) as also RBE No. 72/2016. Hence, the respondents are hereby directed to refund the amount of Rs. 3,37,857/- to the applicant within a period of 30 days hence; failing which, the applicant shall be entitled to interest @ 8% per annum from the date it became due till the payment is actually made to him with liberty that the amount of interest payable to the applicant shall be recoverable from the officer/official responsible for the delay in making payment.

In the result, the OA stands allowed to the extent stated above. No costs.