Union of India vs Prabir Kumar Sarkar

Jayanta Kumar Biswas, J.—The petitioners in the WPCT under Article 226 of the Constitution of India dated November 12, 2014 are questioning an order of the Central Administrative Tribunal Calcutta Bench dated July 25, 2014 allowing the respondent''s OA No. 206 of 2012.

The respondent was working in the S.E. Railway as an Electric Passenger Driver in the pay scale Rs. 5,500-9,000. He was medically de-categorized, but was found fit for sedentary nature of job. He was drafted as a crew controller in the scale Rs. 5,500-9,000. For the purpose the authority issued an order dated August 5, 2003.

It was mentioned in the order dated August 5, 2003 that the respondent would get allowance according to Estt. Srl. No. 38/98; that he would continue to progress in running cadre; and that he would get 120 KM ALK per day.

The Railway Board Estt Srl. No. 38/98 was issued modifying an existing scheme for filling the post of Loco Running Supervisors (Loco Inspectors and Power Controllers/Crew Controllers). Para. 2 (g) of the Srl. is quoted below:--

"(g) Medically decategorised drivers will be eligible to be drafted to perform the duties of Power/Crew Controllers. In their case, the tenure rule of three years under Para(f) above will not be applicable. However, if their performance is not found satisfactory, in addition to action under D&AR, as they cannot go back to Running duties, they will be considered for alternative jobs following the rules applicable to medically decategorised employees."

In para. 2(a) of the Srl. it was mentioned that the cadre of Power/Crew Controllers with distinct scales of pay would be abolished, and that the existing posts in the cadre would be added to the cadre of drivers. In para. 2(b) of the Srl. it was mentioned that duties performed by Power/Crew Controllers till then would be performed by drafted eligible and suitable drivers.

In para. 2(d) of the Srl. it was mentioned that the drivers drafted to perform the duties would be eligible for payment of allowance in lieu of kilometreage of 120 Kms per day at the rates applicable to them. In para. 2(e) of the Srl. it was mentioned that the drafted drivers would continue to progress in the Running cadre.

For the medically decategorised drivers specific provisions were made in cl. (g) of para. 2 of the Srl. and to such drivers drafted to perform the duties of Power/Crew Controller the provisions of cls. (d) and (e) of para. 2 of the Srl. could not apply.

The respondent''s pay consequent upon his absorption in alternative employment was to be fixed according to the provisions of the Railway Board Estt. Srl. No. 122/99. The Srl. was issued regarding absorption of disabled and medically decategorised staff in alternative employment in the context of the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. By the Srl. certain provisions of the IREM were amended.

The substituted para. 1307 of the IREM is quoted below:--

"1307. Element of Running Allowance to be recokoned while finding alternative post to disabled medically decategorised running staff:- In order to determine the same scale of pay for the purpose of absorbing a disabled/medically decategorised running staff in the alternative employment, an amount equal to such percentage of pay in lieu of running allowance as may be in force may be added to the minimum and maximum of the Scale of Pay of the running staff. If the scale of Pay so arrived at is not identical with the scale of Pay already existing, the same may be replaced by the equivalent existing scale of pay."

The substituted para. 1308 of the IREM is quoted below:--

"1308. Fixation of Pay: The pay of the disabled/medically decategorised Railway servants will be fixed on absorption in an alternative post at a stage corresponding to the pay previously drawn in the post held by them on regular basis before acquiring disability/medically decategorisation. For running staff, the fixation will be based on the basic pay plus a percentage of their basic pay, representing the pay element of running allowance as may be in force. If the basic pay so arrived at does not correspond to any stage in the absorbing grade the pay may be fixed at the stage just below and the difference allowed as Personal Pay to be absorbed in future increase in pay. Similarly if the Pay so arrived at exceeds the maximum of the absorbing grade, the Pay may be fixed at the maximum and the difference may be allowed as personal pay to be absorbed in future increments/increases in pay. Other allowances such as Dearness Allowances, City Compensatory Allowance and House Rent Allowance should be allowed on pay plus personal pay, if any, in the absorbing grade."

Although the respondent''s pay in the absorbing grade was to be fixed under Srl. No. 122/99, the S.E. Railway continued to treat him as a member of its Running staff and pay him running allowance in lieu of kilometreage per day, when he was not entitled to the benefit, but only to a specified percentage of his basic pay of the absorbing grade representing the pay element of running allowance.

On reaching the age of superannuation the respondent retired from the S.E. Railway service on April 30, 2006. Confusions over his pay fixation persisted from the very beginning. In view of a Railway Board Estt. Srl. No. 113/2004, the competent authority re-fixed his pay and also directed recovery of some overpayment.

The Railway Board issued the Srl. No. 113/2004 dealing with the question of benefits admissible to medically decategorised drivers drafted to perform the duties of Power/Crew Controllers. The Srl. was issued with a view to clarifying its earlier Srls. No. 38/98 and No. 122/99.

While specifically stating in the Srl. that pay of the medically decategorised drivers drafted to perform the duties of Power Controllers/Crew Controllers was to be regulated according to its Srl. No. 122/99, it exhaustively clarified its decision in para. 2(g) of its Srl. No. 38/98.

In the Srl. No. 113/2004 the Board clarified para. 2(g) of its Srl. No. 38/98 in the following manner:--

"2. It has come to notice that on some divisions in the Zonal Railways, allowance in lieu of Kilometreage is being allowed to medically decategorised drivers drafted to perform the duties of Power Controllers/Crew Controllers, in terms of the above instructions. In this connection, it is brought to your notice that medically decategorised drivers drafted to perform the duties of Power Controllers/Crew Controllers, cease to be running staff and, therefore, are not eligible to any benefit specifically admissible to the Running staff. Accordingly, the allowance in lieu of kilometreage or addition in basic pay for computation of retirement benefits is not admissible in such cases. The pay of the medically decategorised drivers on such drafting, has also necessarily to be fixed as per the extant instructions governing fixation of pay of medically decategorised drivers appointed in alternative stationary posts."

Since in the context of the Railway Board Estt. Srl. No. 113/2004 the S.E. Railway Authority re-fixed the respondent''s pay and directed recovery of overpayment, the respondent made representations. The representations did not yield him the result he expected. Thus feeling aggrieved, he filed the OA in February 2012. The petitioners contested the OA by filing their reply.

The Tribunal allowed the respondent''s OA for the following reasons. Srl. No. 122/99 provided that medically decategorised Running staff would be entitled to an element of running allowance that should be equal to such percentage of pay in lieu of running allowance as may be in force. Hence "on medical decategorisation and suitable absorption the incumbents could not be made to suffer any loss whatsoever." Srl. No. 113/2004 merely restated that Srl. No. 122/99 should be followed in such cases. The respondent''s entitlement flowed from Srl. No. 122/99. Re-fixation of his pension applying Srl. No. 113 of 2004 was wrong.

We have heard Mr. Banerjee appearing for the petitioners and Mr. Chatterjee appearing for the respondent and have examined the Srls. No. 38/98, No. 122/99 and No. 113/2004. For removing certain confusions that arose over the course of hearing, we asked the S.E. Railway to ensure the presence of a competent officer for assisting the court. Accordingly, the Sr. DPO concerned was present in court on December 17, 2004 and he is present in court today as well.

Mr. Banerjee has argued that in view of the existing Railway Board circulars, the respondent could never be treated as a member of the Running staff and be given the running allowance in lieu of kilometreage; but that his pay was to be fixed keeping in mind the provisions of Srl. No. 122/99 under which he was entitled to get a specified percentage of the basic pay of the grade in which he was absorbed after his medical decategorisation.

Mr. Chatterjee has strenuously argued that it is the authorities themselves who suffered from the confusions that led to several re-fixations of the respondent''s pay. His submissions are that there was, in fact, no wrong pay fixation; and that, even if there was a wrong pay fixation, the wrong having taken place not due to any fault of the respondent, but of the authorities, the S.E. Railway was not entitled to re-fix the pay once again and direct recovery of overpayment.

There can be absolutely no doubt that the directions regarding the respondent''s pay fixation given in the order dated August 5, 2003 were contrary to the provisions of the Railway Board Estt. Srl. No. 122/99. Under the Railway Board Estt. Srl. No. 38/98, the respondent was not entitled to the benefit of running allowance in lieu of kilometreage, a benefit that was available only to the drivers drafted to perform the duties of Power/Crew Controllers, not to medically decategorised drivers drafted to perform the same duties.

The respondent''s pay was to be fixed treating him as a member of the non-Running staff and giving him the benefit of a percentage of his basic pay in the absorbing grade for representing the element of running allowance to which he had became disentitled the moment he had been medically decategorised. According to the existing rules, he was entitled to an addition of 30% of his basic pay, but he was treated as a member of the Running staff and given the benefit of a 55% addition.

Similar mistakes, it appears, were committed by several Zonal Railways and the mistakes drew the attention of the Railway Board. Noticing the magnitude and gravity of the mistakes, it is evident, the Railway Board felt it necessary to issue its Srl. No. 113 of 2004. In the Srl. it exhaustively clarified the provisions of para. 2(g) of its Srl. No. 38/98. The Board specifically pointed out the mistakes committed by the Zonal Railways.

The authorities took the immediate corrective measures and, as a result, the respondent''s pay in the grade in which he had been absorbed after his medical decategorisation was re-fixed once again and the re-fixation affected his pension as well. The corrective measures also surfaced a case of overpayment and the need for recovery of the overpayment.

In our opinion, there can be absolutely no doubt that the respondent was not entitled to any allowance in lieu of kilometreage, a benefit that was available only to a member of the Running staff; for the moment he had been medically decategorised, he ceased to be a member of the Running staff. He was entitled to a 30% addition only; not a 55% addition, - the percentage available only to a member of the Running staff.

We are, therefore, of the view that the Tribunal has given a wrong interpretation to the Railway Board Estt. Srl. No. 113 of 2004. Its order cannot be sustained. The respondent was not entitled to any relief.

There was or is no reason to direct the S.E. Railway Authorities not to recover the overpayment. The payment to which the respondent was never entitled, could not be and cannot be permitted to remain available to him. We are unable to agree that the Shyambabu Verma principle is of any assistance to the respondent. In subsequent cases the Supreme Court clearly stated the law regarding the recovery of overpayment.

For these reasons, we set aside the Tribunal order, allow the WPCT and dismiss the respondent''s OA. No costs. Certified xerox.