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Judgment
O R D E R
PER HON’BLE JUSTICE ANIL KUMAR OJHA, MEMBER (J) Heard, learned counsel for the applicant, learned counsel for the respondents and perused the records.
Through this Original Application, applicant has prayed for the following reliefs:
“(i)set aside the impugned settlement calculation sheet issued by opposite parties whereby the pay of the applicant has been reduced from Rs 50500.00 to Rs 47600.00 and pensionary benefits have been calculated on reduced pay.
(ii)issue appropriate order or direction directing the opposite parties to, settle the terminal dues e.g. Provident Fund, Death cum Retirement Gratuity, Group Insurance, Leave Encashment and Pension admissible to applicant at the rate of the last pay drawn i.e Rs.50500.00 Basic + Allowances and make the payment thereof without any further delay along with interest and arrears thereof.
(iii)restrain the opposite parties from making any sort of recovery from the gratuity and pension payable to the applicant.
(iv)pass any other order or direction which may be deemed just and proper in circumstance of the case.
(v)allow the Original Application with cost.
*(vi) issue appropriate order or direction directing the opposite parties to refund the amount of Rs. 190213/- recovered from gratuity of the applicant with interest and also to make payment of interest on delayed payment of gratuity.”
*amended vide order dated 09.09.2026
Tersely put, the case of the applicant is that applicant was employee of the Respondent Department. In August, 2012, the applicant who was working on the post of head constable in Railway Protection Force (in short RPF) was de-categorized on medical grounds and thereafter on 14.07.2014, he was assigned alternative job on the post of Office Superintendent in Northern Railway, Lucknow Division in pay band of Rs. 9300-34800 GP Rs. 4200/-where applicant joined on 23.07.2014. The applicant retired on 31.12.2016 after attaining the age of superannuation. The last pay drawn of the applicant was Rs. 50500/- + allowances.
In the month of July, 2017, the payment of commuted value of pension was paid to the applicant to the tune of Rs. 936083/-through his bank account by the respondents which was less than the admissible amount to be calculated on the basis of last pay drawn i.e. Rs. 50500/-+ allowance. On enquiry, the applicant came to know that his basic pay has been reduced from Rs. 50500/- to 47600/-, without issuing any show cause notice or granting any opportunity of hearing. Reasons for reducing the pay of the applicant has also not been assigned or communicated to him.
Further pleaded that at the time of implementation of the 6th CPC, the applicant was working in RPF in Grade Rs. 4000-6000, which was upgraded to Rs. 4500-7000 as per recommendation of 6th CPC. Accordingly, RPF has modified the pay of the applicant and his pay as on 01.01.2006 fixed Rs. 12100/-+GP Rs. 2800/-. Applicant was given the benefit of MACP w.e.f. 01.09.2008 and was placed in pay band Rs. 9300-34800/- +GP Rs. 4200/-. The last pay drawn of the applicant was Rs. 50500/- + allowances.
Hence, this OA.
Learned counsel for the applicant argued that applicant is a retired Class-III employee and he has not given any undertaking, hence, no recovery can be made on account of alleged wrong fixation of pay w.e.f. 01.01.2006 in view of the law laid down by Hon’ble Apex Court in the matter of State of Punjab v. Rafiq Masih (White Washer). Further submitted that respondents are liable to refund the amount of Rs. 190213/- recovered from gratuity of the applicant with interest and also make interest on delayed payment of gratuity.
Learned counsel for the respondents strongly opposed the aforesaid argument and said that pay fixation of applicant is pending adjudication before the Hon’ble High Court judicature at Allahabad, Lucknow Bench in W.P. No. 7702 (S/S) of 2014 wherein present applicant is petitioner no. 6.
Learned counsel for the applicant did not press the relief (i) & (ii) of Para-8. Hence, relief (i) & (ii) of Para 8 is dismissed as not pressed.
With regard to pay fixation and wrong calculation sheet, we are of the considered opinion that matter is pending for adjudication before the Hon’ble High Court. Hence, we cannot entertain the aforesaid points for adjudication here.
In view of the above, we are considering the claim of the applicant only with regard to alleged illegal recovery from gratuity in light of the law down by the Hon’ble Apex Court passed in the matter of State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334].
Para 12 of the judgment of the Hon’ble Apex Court passed in the matter of State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] is extracted herein below:-
“12.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 herein above, 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 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 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.”
Applicant was a retired Group ‘C’ employee, hence, he is covered under the Para 12 (1) & (2) of the law laid down by Hon’ble Apex Court in the matter of Rafiq Masih (supra).
In view of the above, recovery from gratuity of retired Group ‘C’ employee is violative of the judgment passed by Hon’ble Apex Court in Rafiq Masih (supra). Thus, applicant is entitled for refund of the recovered amount with interest and also interest on delayed payment of gratuity.
Accordingly, respondents / competent authority are directed to refund the amount of Rs. 190213/- recovered from gratuity with interest and also pay the interest on delayed payment of gratuity at the rate applicable on GPF under Rule 65 of CCS (Pension) Rules, 2021 from the due date till actual payment is made within three months from the date of receipt of certified copy of this order.
OA is disposed of accordingly.
There is no order as to costs.
Associated M.As. also stand disposed of.