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Judgment
Per: Mr. Kumar Rajesh Chandra, Member (A):
The instant OA has been filed by the applicant seeking the following relief:-
i.To quash and set aside the impugned Order 10.04.2017 together with Order dated 22.06.2017 as contained in Annexure-A/1 & A/2 respectively.
ii.To direct/command the Respondents to fix/revise the entire pensionnary benefit on the basis of the Pay Band of Rs.9,300/- to Rs.34,800/- Grade Pay of Rs.4,200/- in view of the Annexure-A/3 and pay the arrears together with statutory interest thereupon.
iii.Respondents be further directed to refund the amount of Rs.1,70,094/- recovered against over-payment as shown in Annexure-A/6 alongwith statutory interest thereupon in view of the orders as contained in Annexure A-9 & A-10 respectively.
Bench iv. Any other relief or reliefs including cost of the proceeding be allowed in favour of the applicant.
The brief facts of the case, as per the instant O.A., are discussed and delineated as under:
The applicant, who retired from service on 31.01.2013, is challenging the arbitrary reduction of his pay and the unlawful recovery of money from his retirement benefits. Initially, the respondents reduced his grade pay from Rs. 4,200 to Rs. 2,800 without giving him any notice or opportunity to explain. Because of this unfair action, the applicant filed an earlier case, Original Application No. 177 of 2013, which the court disposed of on 19.12.2016, with directions to the authorities to follow the principles of natural justice since the pay cut affected his livelihood.
Following the court's order, the authorities issued a show-cause notice on 21/22.02.2017. They claimed that the applicant had received promotions as a Dresser in the past and was therefore granted higher MACP benefits by mistake. The applicant strongly denied this and sent a detailed reply by speed post on 15.03.2017. However, the respondents ignored his response and issued a speaking order on 10.04.2017, falsely claiming that he had never replied to the notice. Even after the applicant submitted a representation with proof of his reply, the authorities stuck to their decision and refused to change it.
Because of these actions, the respondents deducted an amount of Rs. 1,70,094/- directly from his Death-Cum-Retirement Gratuity and fixed his pension on a much lower pay scale. The applicant maintains that his financial upgrades were given properly in 2011 with official approval, taking into account his 20 and 30 years of service and his matriculation qualification, which matched government rules and similar court cases. He argues that recovering money from a retired employee is strictly prohibited under the law, pointing to the Supreme Court judgment in the Rafique Masih case and the Department of Personnel and Training (DoPT) office memorandum dated March 2, 2016, as well as a similar judgment by the Patna High Court.
Per contra, the respondents have contested the claim of the applicant and submitted in their reply/written statement that:
The applicant was appointed as Hospital Attendant on 27.11.1978 in scale Rs. 196-232/- and got promotion in scale Rs. 775-1025/- which was merged in GP Rs. 1800/- under 6th Pay Commission. He got his 1stpromotion as Dresser Grade-III, in scale Rs. 3050-4590/-- (G.P. Rs. 1900/- in 6th Pay Commission) vide 'E' Office order No. 773/1992 dated 16.12.1992. The applicant was granted benefit of MACP in GP Rs. 2800/- and GP 4200/- vide 'E' Office order No. 370/2011 dated 27.5.2011 w.e.f. 01.09.2008.
In terms of RBE No. 101/2009, employee should be given at least three promotions in his entire service. If he got no promotion, he should be given the benefit of financial upgradation under the Scheme of MACP, after completion of his 10 years, 20 years and 30 years of his service or on completion of ten years from the previous date of grant of MACP whichever is earlier. Financial upgradation under the scheme will be admissible, whenever a person has spent 10 years continuous service in the same grade pay. The applicant has got the three promotions as (i) Dresser Grade-III, GP Rs. 1900/- (ii) Dresser Grade II, GP Rs. 2400/- & (III) Dresser Grade-I GP Rs. 2800. Therefore, he was entitled for the benefit of MACP in GP Rs. 2800/- only. But erroneously, he has been granted Rs.4200/- in the scheme of MACP. After detection of the error it has been corrected vide office letter No. Sthaniya/Chikitsa/Vetan/2013 dated 28.01.2013, consequently, Rs.1,70,094/- has been recovered from his Gratuity on account of overpayment.
Learned counsel for the applicant has filed the rejoinder in which it was stated that even otherwise subsequent order dated 22.06.2017 wherein the respondents have stated that applicant has been given extra financial up gradation erroneously in GP-4200/-- under MACP which is quite wrong and also against the settled law which never permit reduction of pay when it was granted w.e.f. 01.09.2008 with the approval of General Manager (P) who is higher than the authority who has issued the impugned orders, hence even lower authority cannot review the order passed on 27.05.2011 as contained in Annexure A/3 and further to after more than 06 years from the issue of Annexure A/3 and after more than 04 years from the date of superannuation.
After hearing the learned counsel for the parties and perusal of the material available before this tribunal, I have considered the matter in its entirety and arrived at following conclusions:
The applicant, namely, Shri Swapan Chand Dutta retired on attaining his age of superannuation w.e.f. 31.01.2013 while working as Dresser, East Central Railway Hospital, Danapur, in the pay band of Rs. 9300/- to Rs. 34,800/- grade pay of Rs. 4200/-. He is aggrieved by action of the Respondents whereby the prayer of the applicant for maintaining his pay band of Rs. 9300/- to Rs. 34800/- Grade Pay of Rs. 4200/- granted to Patna him under MACP Scheme with effect from 01.09.2008 vide order dated 27.05.2011 has been rejected and amount of Rs. 1,70,094/- (Rupees One Lakh Seventy Thousand and Ninety-Four only)has been recovered from the Death Cum Retirement Gratuity on account of over payment.
The pre-retirement scrutiny of complete service record is perfectly justified as it is mandatory for proper fixation of pension and grant of legitimate claim of the retiral dues. Moreover, this scrutiny is not violative of the extant RS (Pension) Rules. Hence, any correction of a calculation error resulting from wrong counting of the qualifying service earlier can be affected by the respondents during complete verification and scrutiny of the service record. There is no illegality or arbitrariness in this part of the action of the Respondents as the wrong done earlier cannot be allowed to be perpetuated. There is no document furnished by the learned Counsel for applicant to demonstrate his oral claim that first two categories of Dressers have been merged. Even for the sake of argument this is accepted then it will include two promotions and one MACP justifying the decision of the Respondents.
However, it is now well settled that recovery is not permissible in the following situations in view of ratio laid down by Hon’ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih that was formalized by the DoPT, Government of India by issuing O.M. No. 18/03/2015 Estt. (Pay-I) dated 02.03.2016:-
“(i)Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and ‘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 Patna wrongfully has been required to discharge duties of a Bench 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.”
Admittedly, the applicant has retired as a Group “C” employee and his case is covered by the first and second clause of the aforesaid O.M. The respondents cannot recover the amount as per the settled law stated above. When the applicant retired in year 2013 the judgment and the subsequent formalization in the form of instructions issued by the DoPT on 02.03.2016 was not in existence but it was very much there at the time of issuance of impugned order by the Respondents.
The reasoned order of the Respondents that has been impugned in the instant application was passed in compliance with the order of the Tribunal in previous O.A. filed by the same applicant. This order has been passed in the form of a reasoned and speaking order after giving opportunity to the applicant to file his reply. Hence, there is no violation of the principle of natural justice.
In view of the above discussion and in light of the principles laid down by the Hon’ble Supreme Court in the aforesaid case, the Tribunal is of the considered opinion that the recovery of Rs. 1,70,094/- from the applicant is not permissible and the order of recovery is liable to be quashed. No misrepresentation on the part of the applicant has been proved by the Respondents.
Accordingly, the Original Application is partly allowed in the following terms:
The recovery resulting from the impugned order dated 10.04.2017 together with order dated Patna 22.06.2017 from the applicant is hereby quashed Bench and set aside. The recovered amount from the DCRG will have to be refunded by the Respondents to the applicant. The Respondents are directed to return the due amount within a period of thirty days.
The revised pay fixation of the applicant is justified and this part of the impugned order requires no interference by the Tribunal.
Accordingly, the O.A. is disposed of in the aforesaid terms.
There shall be no order as to interest and costs.