AI Structured Summary
Not yet generated for this judgment
Judgment
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
“(i)Quash the memorandum no. B/P.524/II/Comml/CC/Misc dated 26.12.2024 issued by the second respondent (Annexure A2) by declaring it as unconstitutional and against the rules;
(ii)Direct the respondents to issue a revised pay fixation memorandum by granting increment to the period the applicant was on extra ordinary leave on medical grounds from 07.10.1999 to 29.07.2000 which is qualified for drawal of increment;
(iii)Direct the respondents to arrange the revised settlement dues based on the revised pay fixation order issued in view of (ii) above;
(iv)Direct the respondents to refund the recovered amount of Rs. 3,46,089 forthwith with 18% interest as the recovery is impermissible as per the orders of the Hon’ble Supreme Court of India and the orders of the Railway Board and
(v)Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.”
However, learned counsel for the applicant has filed a memo restricting the prayer only with respect to relief of refund of recovery (Para 8 (iv) of the OA) and not to insist on other reliefs mentioned in para 8 (i) to (iii) of the OA. Consequently, this OA is confined to Relief No. 8 (iv) of OA.
Facts in brief are that the applicant who was working as Reservation Supervisor got retired from railway service on superannuation on 31.12.2024. About 5 days prior to her retirement, the applicant’s pay was revised from 01.09.1999 onwards by postponing the annual increment for 475 days. However, there was no mention about the recovery towards overpayment in the said memorandum issued but Rs. 3,46,089/- was recovered from the retiral benefits of the applicant. Being aggrieved, the applicant has preferred this OA.
Learned counsel Shri K. Shivakumar representing the applicant submitted that the overpayment, if any, is not on the fault of the applicant and all the pay fixations at every stage of promotion/pay commissions were made by the respondents only. The recovery of overpayment has been made in the settlement benefit of the applicant. Placing reliance on the judgment of the Hon’ble Apex Court in State of Punjab & Ors vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334, learned counsel submitted that no recovery from retired employees or employees who are due to retire within one year of the order of recovery is permissible in law. Despite the orders issued by the DoPT and the Railway Board in line with Rafiq Masih, supra, respondents have recovered the amount from the retiral benefits of the applicant which is totally in violation of the legal principles laid down by the Hon’ble Apex Court.
Learned counsel Shri H.R. Sreedhara representing the respondents would submit that excess payment made to the applicant wrongly has been recovered, since it is government money. Paying the wrong amount to the applicant to which the applicant is not eligible is unjust and incorrect. Thus, justifying the recovery action, learned counsel seeks for dismissal of the OA.
We have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
The Hon’ble Apex Court in Rafiq Masih, supra, in Paragraph No. 18 has observed 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 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 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.”
In the light of the said judgment, DOPT has issued OM dated 02.03.2016 in consultation with Ministry of Finance, Department of Expenditure and Department of Legal Affairs enumerating certain situations wherein recovery by the employer would be impermissible in law in the wake of the judgment of the Hon’ble Apex Court in the case of Rafiq Masih, supra. The Railway Board vide RBE No. 72/2016 dated 22.06.2016 has issued instructions applying the said OM of the DOPT mutatis mutandis to railway employees also. 8. The overpayment is not due to the fraud played or misrepresentation made by the applicant. The judgment of the Hon'ble Apex Court in Rafiq Masih’s case, supra, is squarely applicable to the facts of the present case which indeed has been adopted by the Railway Board in RBE No. 72/2016.
In the light of the judgment referred to supra, the aforesaid recovery at the time of settlement of retiral benefits of the applicant is not sustainable in the eye of law. Hence, the applicant is entitled for the refund of the amount of Rs. 3,46,089/-.
For the reasons aforesaid, we pass the following:
:ORDER:
Respondents are directed to refund the amount of Rs. 3,46,089/- (Rupees Three Lakhs Forty Six Thousand and Eighty Nine Only) recovered from the applicant.
Compliance shall be made in an expedite manner, in any event not later than 8 weeks from the date of receipt of the certified copy of this order, failing which, the same shall carry interest at the prevailing GPF rate of interest.
OA stands disposed of in terms of above. No order as to costs.