M.V.V. Satyanarayana vs Union Of India & Ors.

Pramod Kumar Das, Member (A)

The applicant, Sri M.V.V.Satyanarayan, while working as M.V.Driver under PCEE/East Coast Railway, Bhubaneswar retired from Railway service on reaching the age of superannuation in the afternoon of 31.07.2021. He filed this OA praying as under:

“a) After hearing the parties set aside the impugned order dtd.02.06.2022 passed by the Respondent No-4.

(b) Direct the respondents to refix / correct the last basic pay drawn amount i.e. Rs.42,800/- in the pension paper order.

(c) Direct the Respondents to release differential pension amount after refixation of last basic pay drawn amount.

(d) And pass appropriate orders as deemed just and proper in the facts and circumstance of the present case at hand with cost.”

However, in course of hearing, Ld. Counsel for the applicant has orally submitted that he confines his prayer insofar as recovery is concerned. In view of the above, we see no ground to deal with the tit bit of the stand taken by the respondents in their counter contesting and objecting the prayer made in the OA so also the stand taken by the applicant in the rejoinder filed thereto.

Heard. Perused the records.

According to counter/Ld. Counsel for the respondents, applicant joined in Construction Unit as casual staff on 11.01.1992 and conferred with temporary status on 06.12.1994. He was granted ad hoc promotion as M.V.Driver Grade III w.e.f. 05.12.1994 and regularized in the same capacity in Open Line of KUR Division where he joined on 26.08.2004. He was enjoying the higher pay from the date of his ad hoc promotion till his retirement on 31.07.2021. The Hon’ble Apex Court in Civil Appeal No. 7292/2013 arising out of SLP(C) No. 14007/2012 dated 27.08.2013 held that where a Railway employee holding an ex cadre post is repatriated back to his parent cadre, it is advised that ad hoc promotions granted against the ex cadre post do not entitle him for protection of pay on repatriation to the cadre. The said discrepancy in the matter of fixation of pay of the applicant came to the notice while reviewing the service sheet for finalization of his pension papers etc. by the financial wing and, accordingly, the same was rectified vide corrigendum dated 26.07.2021. The excess payment due to such wrong fixation of pay started from 26.08.2004 till 31.07.2021 came to be Rs. 4,74,567/-. Accordingly, keeping the amount Rs. 4,74,567/-, an amount of Rs. 2,13,775/- was paid to the applicant towards his DCRG. The applicant submitted appeal against such decision of recovery, which was considered and the applicant was intimated vide letter dated 02.06.2022(A/10) to the extent as under:

“viii) In order to dispose of your earlier representation dated 20.07.2021 and in terms of RBE No. 72/2016, a proposal has been made for waiver of recovery of excess amount of Rs. 4,74,567/- paid to you. Finance concurrence in this regard has already been obtained and after obtaining approval of GM, the same will be forwarded to Railway Board seeking approval for waiver of recovery of excess amount of Rs. 4,74,567/- paid to you. On receipt of the orders from Railway Board, appropriate action will be taken by the administration. However, it is to be noted that the balance amount of DCRG of Rs. 2,13,775/- has already been paid to you.

ix) Further, it is informed that the grounds you have raised in your representation dated 20.01.2022 through OA-152/2022 of Hon'ble CAT/CTC, dated 08.04.2022, has already been examined and has been duly processed for obtaining approval of GM and Railway Board. In view of the above, your representation dated 20.01.2022 is disposed of accordingly.”

We find that the aforesaid decision was of dated 02.06.2022 and the respondents have filed the counter on 24/25.01.2024 stating that no decision has been received on the proposal for waiver of the amount. When the matter was taken up for hearing on 05.08.2025, Ld. Counsel for the respondents did not throw any light on the proposal for waiver of the excess payments. The applicant is a low paid employee of the Railway retired from service on 31.07.2021 while working in a Group-C post of MV Driver. Pension and pensionary dues are the solace means of a retired employee for survival during winter days of his/her life and recovery of such a bigger amount from his DCRG is stated to have caused in great financial hardship. In this regard, it is apt to state that taking into consideration the financial hardship caused to an employee consequent upon recovery, the Hon’ble Apex Court in the case of State of Punjab & Ors Vs Rafiq Masih (White Washer), AIR 2015 SC 696, fixed the criteria under which recovery is impermissible in law as under:

“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 aforesaid principle has also been reiterated 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. However, taking into consideration the decision in the case of Rafiq Masih (White Washer) also, the DoP&T issued exhaustive instruction vide OM dated 02.03.2016 on the recovery of wrongful/excess payment made to Govt. servants, which was adopted by the Railways vide RBE 72/2016. In the instant case, we find that the case of the applicant squarely falls within the parameter fixed by the Hon’ble Apex Court, quoted above, since he was a Group-C employee of the Railway and the differential amount started from 26.08.2004 to 31.07.2021. Therefore, we appreciate the stand of the authority concerned for taking step to waive the recovery but we do not conceive the very fact of such huge delay in taking final decision in the matter even though the applicant retired from service on 31.07.2021. Interest Reipublicae Ut Sit Finis Litium, meaning thereby it is in the interest of the state that there should be an end to litigation, is an established principle/ proposition of law/ legal policy. In view of the of the facts and law discussed above, since considerable delay had already occasioned meanwhile, to come to an end of the litigation and to allow the applicant to overcome the financial hardship being a Group-C retired employee, the Respondents are hereby directed to refund the recovered amount of Rs, 4,74,567/- to the Applicant within a period of 30 (thirty) days from the date of receipt of a copy of this order. Since the recovery was sought due to refixation of pay erroneously fixed earlier, we are not inclined to grant any interest, however, it is made clear that failure to pay the amount, within the stipulated period, as directed above, the Applicant shall be entitled to 8% interest from the date it became due till actual payment is made and the extra amount to be borne on payment of interest shall be recoverable from the officer(s)/official(s) responsible for such delay. The rest of the relief sought by the applicant is hereby rejected.

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