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2007 DIGILAW 1387 (PAT)

Union Of India v. Central Administrative Tribunal

2007-08-21

J.N.BHATT, KISHORE K.MANDAL

body2007
Judgment J.N.Bhatt, J. 1. This petition under Article 226 of the Constitution of India is directed against the order passed in O.A. No. 988 of 2003 by the Central Administrative Tribunal, Patna Bench, Patna ("Tribunal"), on 23.11.2005, whereby and whereunder, the claim of the original applicant-respondent for refund of recovery of damage rent and over-payment of pay from the retiral benefits to the original applicant, respondent no. 2 here, after a long time effected by the petitioner Union of India came to be allowed. 2. The application of the original applicant-respondent no. 2 here, before the Tribunal was allowed to the extent that the original respondent, petitioner in this petition, has been directed to refund the amount which has been recovered from the pay as well as retiral benefit towards the alleged excess payment of pay of original applicant-respondent no. 2 with a further direction to refund the same within a period of two months from the date of receipt of the copy of the order. 3. So far as the matter regarding recovery of damage rent claim was concerned, the case came to be remitted back to the concerned respondent in the original applicant to pass a speaking order taking into consideration the entire facts, as alleged by the applicant, and giving reasons as to the circumstances in which the damage rent is due from the original applicant under the relevant rules after giving an opportunity to the original applicant, within the stipulated period of time. 4. Upon consent of the parties, this application is taken up for final disposal at this stage itself. Therefore, we have heard the learned counsel for the parties and examined the factual matrix. We have also taken into consideration the relevant proposition of law, as well as, text and context of the impugned order passed by the Tribunal. 5. It has been contended on behalf of the petitioner that the order of the Tribunal to the extent of giving direction to refund the recovered amount of excess payment of pay is unjust, unreasonable and illegal. 6. Let it be highlighted at this juncture that while the respondent no. 2-original applicant, was posted as Senior Loco Inspector (Steam & Diesel) in the pay scale of Rs. 2375-3500, his pay was . stepped up at par with junior, Sri B.N. Chakraborty, by the petitioner-respondent authority by passing an order dated 1.8.1995, with effect from 9.4.1992. 6. Let it be highlighted at this juncture that while the respondent no. 2-original applicant, was posted as Senior Loco Inspector (Steam & Diesel) in the pay scale of Rs. 2375-3500, his pay was . stepped up at par with junior, Sri B.N. Chakraborty, by the petitioner-respondent authority by passing an order dated 1.8.1995, with effect from 9.4.1992. After five years, the Chief Personnel Officer, Eastern Railway, by order dated 8.12.2002, cancelled the stepping up of the pay granted to the respondent no. 2-original applicant and it was further directed for recovery of the over payment on the ground of mistake of the office of the Railway. 7. In pursuance of the impugned order of the Chief Personnel Officer, Eastern Railway, an amount of Rs. 1,13,877/- came to be recovered from the pay of the respondent no. 2-original applicant, partly from the retiral dues towards alleged overpayment of salary. 8. The respondent no.2-original applicant-employee was appointed as Temporary Trainee Fireman Grade-I and posted at Mogalsarai Division on 9.5.1963. Thereafter, he was posted as fireman and subsequently, he came to be appointed as Loco Foreman, Mogalsarai. Thereafter, the respondent no. 2-original applicant was promoted from time to time to the higher post and then selected as Power Controller in the scale of Rs.550-750 and was posted in Control Section at Danapur Division with effect from 11.6.1980. He was subsequently, transferred to Jamalpur and posted as APTI at PTS/JMP on the same pay scale on and from 2.2.1981. He was also promoted as Instructor PTI (Ex-cadre post) in the scale of Rs.700-900/- (RS) under PPTS/JMP with effect from 17.3.1983 and thereafter was promoted to higher grade to the post of SIO in scale of Rs. 2375-3500 (RSRP) and transferred to Malda Division with effect from 28.3.1986 and posted as Sr. DMEs Office, Malda. 9. The respondent no. 2-original applicant was thereafter redesignated as SLI with effect from 1.1.1993 alongwith many other Loco Running Supervisors in the scale of pay of Rs. 2375-3500 (RP)/Rs 7450-11500 (RSRP) till his termination of service due to superannuation upto 31.1.2003. 10. While respodnent no. 2-original applicant was working as SLI/JMP in the scale of Rs. 2375-3500, he was stepped up with the junior Sri B. Chakravarty of Howrah alongwith other four staff by order dated 1.8.1995 with effect from 9.4.1992. 2375-3500 (RP)/Rs 7450-11500 (RSRP) till his termination of service due to superannuation upto 31.1.2003. 10. While respodnent no. 2-original applicant was working as SLI/JMP in the scale of Rs. 2375-3500, he was stepped up with the junior Sri B. Chakravarty of Howrah alongwith other four staff by order dated 1.8.1995 with effect from 9.4.1992. He continued to enjoy this monetary benefit for a spell of more than five years till it was withdrawn by order dated 13.7.2000 on the premises that no such stepping up provision has been allowed in the Railway Board. Thus, the monetary benefit came to be withdrawn and the same came to be recovered from the excess arrears of pay as well as retiral dues of the respondent no. 2-original applicant. That is why, he filed the original application before the Tribunal successfully. Therefore, this writ petition at the instance of the Union of India. 11. There is no dispute about the fact that the alleged over-payment to the respondent no. 2-original applicant was made by mistake of the Officers of the Railway and it was not at all referable to any act, commission or omission on the part of the original applicant-respondent no. 2. However, the amount of the alleged over-payment came to be recovered from the salary as well as retiral dues of the original applicant-respondent no, 2. Obviously, there is no any even insinuation about any role or part having been played by the original applicant-respondent no. 2-employee for the said over-payment. He continued to enjoy the benefit for a spell of five years. Thereafter, the recovery was effected as stated hereinabove which, on challenge being made before the Tribunal, came to be directed to be refunded to the respondent no. 2-original applicant. 12. The sole question which shall emerge is as to whether when over-payment has been made without any act or omission or in absence of any fraud or misrepresentation on the part of the original applicant-respondent no. 2 and the overpayment is made by mistake of the officer of the Railway without there being any mistake on the part of the respondent no. 2-original applicant, could that be recovered by the master or management or the authority or not? The Tribunal has reached to the conclusion that such recovery is not permissible. This view is challenged before us. 2-original applicant, could that be recovered by the master or management or the authority or not? The Tribunal has reached to the conclusion that such recovery is not permissible. This view is challenged before us. However, on consideration of the facts and circumstances and the relevant proposition of law, we are of the opinion that in such situational reality, recovery cannot be effected as there was no mistake or fault or omission or commission, fraud or misrepresentation on the part of the employee-original applicant-respondent no. 2. The view which we are going to take is also very much reinforced by a decision of the Hon ble Apex Court rendered in the case of Shyam Babu Verma & Ors. vs. Union of India & Ors. 1994 SCC (L&S )683=1994(2) SLJ 99(SC), wherein it has been held by the Hon ble Apex Court that though higher pay scale was erroneously given to the petitioners in 1973, which was corrected in the year 1984, but since the petitioners received payment without any fault of theirs, it was not proper to recover the amount already paid to them. In the present case, the respondent no. 2-original applicant employee has already superannuated from service and the amount is alleged to have been paid by way of passing an order for stepping up on account of mistake of the officer of the Railway, but, on the recovery order, was recovered from him which is not justified. 13. In the case of Sahib Ram vs. State of Haryana & Ors., 1995 SCC (L&S) 248=1995 AIR SCW 1780, the Hon ble Apex Court has restrained the recovery almost in similar circumstances laying down the principle that in absence of any misrepresentation or mistake on the part of the employee, recovery cannot be effected. 14. In the result, we find no substance in this petition. Therefore, this petition shall stand dismissed with cost, with a direction to refund the recovered amount to the respondent no. 2-original applicant as ordered by the Tribunal and, in case of delay, the same shall carry interest at the rate of 9% per annum as ordered by the Tribunal. The order of the Tribunal shall stand confirmed.