Suresh Kumar vs Union Of India & Ors.

Per: RAMESH SINGH THAKUR, MEMBER (J)

This Original Application under Section 19 of the Central Administrative Tribunals Act, 1955 has been filed by the applicant against the order dated 11.10.2022 (Annexure A-13) passed by the respondents vide which recovery of amount to the tune of Rs. 1,20,456/- has been made from the gratuity of the applicant. From the pleadings, the case of the applicant is that the applicant was appointed with respondent department on 16.01.1990. The applicant had taken voluntary retirement due to medical exigency on 18.11.2020. Before the voluntary retirement, the applicant was getting basic pay of Rs. 36,100/- and the respondent department ought to have prepared the pensionary benefits considering his last drawn basic pay i.e. Rs. 36,100/-whereas at the time of preparing pension/PPO of the applicant the respondent has erroneously considered basic pay of Rs. 35,000/-. The copy of pay slip of the applicant for the month of October 2020 and Pension Payment Order are annexed as annexure A-6 and A-7. The applicant was shocked to know that gratuity to the amount of Rs. 5,52,825/- was due to him however an amount of Rs. 1,20,456/- has been illegally, without affording an opportunity of hearing deducted from the pensionary benefits. Copy of order qua the deduction dated 08.05.2021 has been annexed as annexure A-9. The applicant gave number of representations to the respondents and legal notice to re-compute pensionary benefits considering the basic pay of Rs. 36,100/- as well as release of deducted gratuity of Rs. 1,20,456/-.

The applicant has challenged the action of the respondents on the ground that no notice was issued to the applicant before making the recovery. It has been further submitted by the applicant that the respondents have not communicated to the applicant the letter dated 19.02.2021 before re-fixing of his pay after retirement. The reason asserted by the respondent in impugned order dated 11.10.2022 qua the recovery, has not been made correctly as per Rule 15(B) of the Railway Service (Pension) Rules, 1993. Rather, it is against the rule enshrined in Railway Service (Pension) Rules, 1993. Moreover, the case of the applicant is not falling under section 15(3)(b) as the overpayment was not result of any negligence, misrepresentation and fraud on the part of the applicant. The abstract of Railway Service (Pension) Rules, 1993 is annexed as Annexure A-14. The applicant has also referenced judgement given by the Apex Court in the matter of State of Punjab & Others VS Rafiq Masih (White Washer) etc. passed in Civil Appeal No. 11527/2014 decided on 18.12.2014 whereby recovery from retired employees or employees who are due to retire within one year of the order of recovery cannot be made.

The respondents have filed the reply wherein it has been submitted by the respondents that in compliance of order dated 03.08.2023 of the Tribunal, the respondents have paid to the applicant in terms of provision of Para 15(B) of the Indian Railway Pension Manual, 1993. It has been submitted by the respondents that if there is some bonafide mistake, that can be corrected. The respondent has relied upon the judgement passed by Punjab and Haryana High Court in the case of Sunder Lal & Others VS State of Punjab, AIR 1970 P H 241 and also relied upon the judgement passed by the Apex Court in the matter of G. Srinivas VS Government of Andhra Pradesh & Others (2005) 13 SCC 712. It has been specifically submitted by the respondents on the question for correction/change of basic pay from Rs. 36,100/- to Rs. 35,000/- that the basic pay of the applicant was earlier fixed inadvertently/erroneously to Rs. 36,100/- w.e.f. July, 2020 while it was actually to be fixed at Rs. 35,000/- because the applicant was unauthorized absent from duty for the period of 252 days and as per RBE No. 103/2008 dated 04.09.2008 for grant of annual increment, six months qualifying service in an increment year is required to be completed. As the criteria of six months qualifying service in the increment year 2018-19 was not completed, the increment for year 2018-19 was not due. It was inadvertently given on 01.07.2019. Accordingly his pay has been revised with w.e.f. 01.07.2019 vide letter dated 19.02.2021.

The arguments have been heard from advocates of both parties and also the annexures with the pleadings have been gone through. From the pleadings itself it is admitted fact that the applicant was appointed on 16.01.1990. The applicant stood retired on 18.11.2020. It is also admitted fact that the respondent has recovered the amount of Rs. 1,20,456/- from the gratuity of the applicant. From the pleadings itself the applicant has specifically submitted that there is no misrepresentation on behalf of the applicant. The respondents have admitted in their reply that due to mistake on the part of the respondents the recovery of Rs. 1,20,456/- has been made from the gratuity of the applicant. The same is clear as per Annexure A-9. It has been submitted by the respondents that there can be correction/change of basic pay can be done by the respondents. The applicant has relied upon the judgement passed by the Apex Court in the matter of Rafiq Masih case (supra) qua the law settled by the Apex Court that the recovery cannot be made if the employee is retired or due to retire within one year of recovery order. Applicant has also relied upon the judgement passed by the Apex Court in the matter of Thomas Daniel VS State of Kerala & Others in Civil Appeal No. 7115/2010 decided on 02.05.2022 wherein it has been held by the Apex Court that if the excess payment was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying the wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such payment of emoluments or allowances are not recoverable. While dealing this judgement the Apex Court has also discussed the judgement passed by the honourable Court in the matter of Syed Abdul Qadir & Others VS State of Bihar & Others (2009) 3 SCC 475 and State of Punjab & Others VS Rafiq Masih (White Washer) & Others (2015) 4 SCC 334. In the instant case the impugned order has been passed on 11.10.2022. As per respondents’ reply the respondents have deducted Rs. 1,20,456/- from the gratuity which is clear as per Annexure A-9. In view of the law settled by the Apex Court, the recovery made by the respondents is illegal and the impugned order is quashed and set aside. The applicant is entitled to refund of Rs. 1,20,456/- which has been recovered by the respondent. Resultantly, O.A. is allowed and the respondents are directed to refund Rs. 1,20,456/- to the applicant within six weeks after receiving the order of this tribunal. No order for cost.