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2019 DIGILAW 2182 (KAR)

Union of India v. S. Ravi

2019-11-19

S.N.SATYANARAYANA, SACHIN SHANKAR MAGADUM

body2019
ORDER : Respondents 1 to 3 in O.A.No.170/00992/2015/ CAT/Bengaluru Bench (for short “CAT”) have come up in this writ petition impugning the order dated 28.11.2017 passed therein. 2. Admittedly, the proceedings in O.A.982/2015 was initiated by the sole respondent herein in challenge to the order dated 13.7.2015 bearing No.Y/P/524/I/6th PC/SM/Vol.III wherein refixation of pay of respondent was considered on his repatriation from ex-cadre post to cadre post and consequential Office order No.T-CELL/T.34/2015 dated 13.07.2015 in refixing his pay scale in the repatriated cadre post. The said application came to be allowed on the ground that the applicant has been working in the cadre post in the same scale of pay all along and as such the question of refixing of his pay on the basis of the cadre post held by him after reversion cannot be considered and also on the ground that when a person is repatriated to the parent cadre in the same scale of pay he is entitled to get same benefit as he enjoyed in the present scale of pay. Accordingly, the aforesaid two orders at Annexures-A1 and A2 before the Tribunal were quashed by order dated 28.11.2017. 3. The said order is sought to be challenged in these proceedings on the ground that serious error has been committed by the Tribunal when admittedly the respondent who was initially appointed in cadre post on 3.5.1982 was subsequently shifted to ex-cadre post of Junior Complaints Inspector vide order dated 26.9.1986 and continued to work in the non-cadre post during which period it is also stated that he has secured one promotion on 14.8.1989 from Junior Complaints Inspector to that of Senior Complaints Inspector. It is also contended that on 20.8.2004, the respondent was repatriated to parent cadre and at that time since he was declared medically unfit to hold the cadre post of Station Master to which he was eligible, a supernumerary post was created as Station Master, Gr.II and he was allowed to continue in the said post. 4. It is the case of the petitioner that though the pay scale of Senior Complaints Inspector and Station Master is one and the same, the pay was not fixed on his repatriation, which was sought to be done in the year 2015, and the same was opposed by the respondent. It is in this background, the show-cause notice dated 18/20.02.2015 was issued. It is in this background, the show-cause notice dated 18/20.02.2015 was issued. However, it is argued on behalf of the petitioners that the reliance placed by the Tribunal on the unreported judgment rendered by the Apex Court in the matter of State of Punjab and others .vs. Rafiq Masih (White Waster) etc. which was disposed of on 18.12.2014 in Civil Appeal No.11527 of 2014(arising out of SLP(C) No.11684/2012) in allowing the application is erroneous inasmuch as the said judgment was infact against the interest of the respondent. As could be seen in paragraph 11 sub-para 8 it is observed by the Apex Court thus: “Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee’s retirement, or within one year of the date of his retirement of superannuation.” Further at Paragraph 12 it is held as under: “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. (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 for outweigh the equitable balance of the employer’s right to recover.” 5. It is therefore contended that the aforesaid judgments would not support the case of the respondent who was applicant before the Tribunal for the reason that he was not an employee who was due to retire within one year of the order of recovery. In the instant case, the order of recovery dates back to 13.7.2015 and consequently the order of even date could not have been interfered by the Tribunal not only in the light of the judgment rendered by the Apex Court in the case of Rafiq Masih but also the earlier judgment rendered in the matter of Chandi Prasad Uniyal and others .vs. State of Ugttarakhand and others reported in (2012) 8 SCC 417 wherein the Apex Court has observed as under: “13. We are not convinced that this Court in various judgments refereed to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public many by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc, because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” 6. In the light of aforesaid discussions, this Court is of the considered view that the order of the Tribunal in allowing the application filed by the respondent herein is O.A.No.170/00992/2015 by it order dated 28.11.2017 is erroneous and accordingly, the same is set aside. 7. While doing so, this Court would also observe that the petitioners-Railways is at liberty to implement the refixation of pay which was done under Office order in No.T-CELL/T.36/2015 dated 13.07.2015 and while implementing the same, the petitioners should also consider the benefit of NACP if it was available to the petitioner prior to his retirement which took place on 31.05.2018 and set off benefits that would accrue to him as against the recovery that is ordered under the show-cause notice dated 18/20.02.2015. 8. Further, it is made clear that the recovery shall not be for the period prior to the date of show cause notice dated 18/20.02.2015 which will be in consonance with the judgment rendered in the matter of Rafiq Masih supra.