Tara Chand vs General Managr (Pension) And Ors

Briefly stated, the facts of the current O.A. are that the applicant (Sh. Tara Chand) retired from railway service as Upper Division Clerk (UDC) in the pre-revised pay scale of Rs. 1400-2300 under 4th Central Pay Commission (CPC) after attaining the age of superannuation on 06.10.1990. After coming into force of the 5th CPC, the revised pay scales were notified by the Railway Board vide letter dated 08.10.1997 i.e. RBE No. 133/97 effective from 01.01.1996.

The pre-revised pay scale of Rs. 1400-2300 (in which the applicant was working) was replaced with the corresponding pre-revised pay scale of Rs. 4500-7000. However, certain categories of railway staff (like the Head Clerk, Master Craftsman, Artisan Categories) working as on 01.01.1996 in the pay scale of Rs.1400-2300 were replaced with higher pay scale of Rs.5000-8000.

The 6th CPC further revised the pay scale w.e.f. 01.01.2006 circulated by Railways vide RS(RP) Rules, 2008 dated 04.09.2008. Directions for revision of pension of pre-2006 retirees were issued by Ministry of Personnel, Public Grievance and Pension on 14.10.2008, which was adopted by the Railways vide REB No. F(E)III/2008/PN1/12 dated 18.11.2004 (Annexure R-4).

A revised concord table for pre-1996, pre-2006 was annexed to the Notification dated 14.10.2008 for fixation of pension/family pension. Vide Serial No. 9 of the annexure to the aforesaid Notification, the scale of Rs.4500-7000 was replaced with that of Rs.5200-20200 + G.P. Rs.2800. The applicant, who had retired prior to 01.01.1996, was entitled to pension in the pay scale of Rs.4500-7000 w.e.f. 01.01.1996 and Rs. 5200-20200 + G.P. of Rs.2800 w.e.f. 01.01.2006. The pension of the applicant was fixed accordingly.

The respondents state that the pension of the applicant had been wrongly fixed at Rs. 5650/- earlier due to wrong application of pay scale, which has now been rectified. The pension of the applicant was fixed at Rs.799/- under 4th CPC at the time of retirement. Subsequently, PPO was revised and pension of the applicant was fixed at Rs.2500/- p.m. on the recommendations of the 5th CPC. The revised pay scale of Rs.5000-8000 meant for serving Head Clerks was mistakenly taken to fix the pension, instead of applying the corresponding revised pay scale of Rs. 1400-2300, which was Rs.4500-7000. The PPO of the applicant was again revised in the month of November, 2009 to Rs.6750/- on the basis of pre-revised pay scale of Rs.5000-8000 and revised scale of pay of Rs.9300-34800 + G.P. of Rs.4200/- to give effect to recommendations of VI CPC effective from 01.01.2006. The respondents state that they fixed the pension of the applicant considering the revised pay scale as Rs.5000-8000 instead of Rs.4500-7000 under 5th CPC effective from 01.01.1996 and in the corresponding revised pay scale of Rs.9300-34800 + G.P. of Rs.4200 instead of Rs.5200-20200 + G.P. of Rs. 2800/-, which comes out to be Rs. 5650/-. Hence, final PPO has been issued on 22.03.2016 authorizing the correct pension.

The applicant in the O.A. has prayed that the impugned order dated 22.03.2016 vide which monetary pension of the applicant had been reduced from Rs.6750/- to Rs. 5650/- and further recovery of over payment has been directed w.e.f. 01.08.2016 should be quashed and set aside.

The applicant has taken the plea that the proposed recovery of Rs. 3,12,000/- has been slapped on him without issuing any show cause notice, which is against the principles of natural justice and, which he avers, is another ground for quashing the said order.

On going through the facts of the case, I find that the action of the respondents in revising the pay of the applicant is as per the various rules/clarifications provided by the Government from time to time and referred to in their counter. In my view, this action of the respondents of revision of pension of the applicant cannot be faulted.

However, the fact remains that the applicant has been receiving the monetary pension @ Rs.6750/- p.m. till July, 2016. The law on the subject is very clear. The applicant is a retiree of the year 1990 i.e. he retired 26 years prior to receiving the order of revision of pension of July, 2016. The Hon'ble Supreme Court in the case of State of Punjab and Ors. Etc. Vs. Rafiq Masih (White Washer) etc. in their historical judgment dated 18.12.2014 have categorically held that in case of release of monetary benefits based on a mistaken belief at the hands of the employer and where the employee had no role in the determination of the excess amount, the same cannot be recovered from them. In Para-12 of the said judgment, the following has been laid down:-

"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 case of the applicant is covered on all fours and comes within the ambit of the parameters provided by the Hon'ble Supeme Court in the case of Rafiq Masih (supra). Accordingly, the impugned order dated 22.03.2016 is quashed to the extent that recovery of over payment, directed to be made, from the applicant, is set aside. The respondents are directed to refund the recovered amount, if any, to the applicant. The O.A. is disposed of with these directions. No costs.