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2020 DIGILAW 270 (TS)

Union of India v. A. Sreedhar

2020-02-12

A.ABHISHEK REDDY, R.S.CHAUHAN

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JUDGMENT : R.S. CHAUHAN, J. 1. The Union of India and others have challenged the legality of the order dated 19.3.2019 passed by the Central Administrative Tribunal, Hyderabad Bench (‘the learned Tribunal’ for short), whereby the learned Tribunal has allowed the O.A. filed by the respondent-applicant (‘the applicant’ for short) and set aside the order dated 3.8.2016, issued by the Financial Advisor and Chief Accounts Officer, South Central Railway, the respondent No. 2 in the O.A. and has further directed the petitioners herein to refund the amount recovered till date from the applicant, and to stop further recovery, if any, with immediate effect. 2. Succinctly stated, the facts of the case are that on 17.7.1980, the applicant was appointed as Typist on the South Central Railways; on 7.6.1982 he was promoted as Clerk Grade-I; on 26.2.1988, he was promoted on the post of Section Officer; and finally on 1.3.1993 he was promoted on the post of Senior Section Officer. During his tenure of service, he worked in the Accounts Department of the Railways. Subsequently, on 14.11.2007, he submitted a technical resignation to the Railways, and joined the Rail-Tel Corporation of India Limited (RCIL), a Public Sector Unit of Railways, on 14.11.2007. He was absorbed in RCIL on 15.11.2007. While absorbing him in the RCIL, the applicant was granted the pension duly fixing the basic and the Dearness Relief thereon. Therefore, the applicant was paid the pension including the Dearness Relief, admissible from time to time. However, on 3.8.2016, the respondent No. 2, wrote a letter to the Chief Manager, State Bank of India, Lalaguda Branch, the applicant's bank, wherein he directed the Chief Manager of the Bank to stop the payment of the Dearness Relief of the applicant forthwith, and directed the Bank to recover the excess amount paid towards admissible Dearness Relief, from 15.11.2007 to 31.7.2016, to a tune of Rs. 8,73,715/- from the applicant's account. Aggrieved by the said letter, the applicant filed the O.A. before the learned Tribunal. As stated above, by order dated 19.3.2019, the learned Tribunal allowed the O.A. in the aforementioned terms. Hence, this writ petition before this Court. 3. Mr. 8,73,715/- from the applicant's account. Aggrieved by the said letter, the applicant filed the O.A. before the learned Tribunal. As stated above, by order dated 19.3.2019, the learned Tribunal allowed the O.A. in the aforementioned terms. Hence, this writ petition before this Court. 3. Mr. C.V. Rajeeva Reddy, the learned Standing Counsel appearing for the petitioners, has vehemently contended that by undertaking dated 10.7.2008, the applicant had clearly given an undertaking “to refund or make good any amount to which I am not entitled, or any amount which may be credited to my account in excess of the amount to which I am or would be entitled.” The said undertaking was given by the applicant to the Bank. Furthermore, the case of the applicant does not fall within the four corners of the State of Punjab vs. Rafiq Masih, (2015) 4 SCC 334 . For, the case of Rafiq Masih's case (supra) deals with the Class-IV employees. Therefore, the learned Tribunal has erred in relying on the case of Rafiq Masih's case (supra) and ordered to grant the relief to the applicant. 4. On the other hand, the learned Counsel for the applicant submits that in the case of Rafiq Masih's case (supra), the Hon'ble Supreme Court has prescribed five circumstances, wherein recoveries from the employees were held to be impermissible in law. One of the circumstances so mentioned was recovery from retired employees. Another circumstance that was mentioned was if the Court arrives at a conclusion that if recovery were to be made from an employee, it would be iniquitous, harsh and arbitrary act, which would far outweigh the equitable balance of the employer's right to recover. According to the learned Counsel, the applicant's case is covered by both these circumstances. For, by the time the impugned letter was written to the bank officials by the respondent No. 2, the applicant had already retired from service. Moreover, the recovery of Rs. 6,000/- per month from November, 2018 and the future prospect of recovery from his pension would lead to grave hardship to the applicant at the dusk of his life. Lastly, the learned Counsel has relied on the case of Union of India vs. M. Satyanarayana, 2019 (2) ALD 453 (DB), decided by a Division Bench of this Court on 13.12.2018. According to the learned Counsel, similar orders were passed by the learned Tribunal as the present impugned order. Lastly, the learned Counsel has relied on the case of Union of India vs. M. Satyanarayana, 2019 (2) ALD 453 (DB), decided by a Division Bench of this Court on 13.12.2018. According to the learned Counsel, similar orders were passed by the learned Tribunal as the present impugned order. These orders passed by the learned Tribunal were challenged in a series of writ petitions before this Court. In the case of M. Satyanarayana's case (supra), the Union of India had equally pleaded that the case of the retired employees, from whom recoveries were being made, were not covered by the case of Rafiq Masih's case (supra). However, the learned Division Bench rejected the said contention, and upheld the similar orders passed by the learned Tribunal as was passed in the present case. Therefore, the present case is squarely covered by the judgment of a learned Division Bench of this Court in the case of M. Satyanarayana's case (supra). Thus, according to the learned Counsel, the present writ petition also deserves to be dismissed by this Court. 5. Heard the learned Counsel for the parties, perused the impugned order, and considered the case law cited at the Bar. 6. In the case of Rafiq Masih's case (supra), the Apex Court has described five circumstances in which the employers are not permitted to make any recoveries from the employees. The five circumstances are as under: (i) Recovery from employees belonging to Class-in 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. 7. Admittedly, in the present case, the applicant has retired from his service. (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. 7. Admittedly, in the present case, the applicant has retired from his service. Therefore, his case would clearly fall within the scope of Circumstance No. 2 mentioned hereinabove. Moreover, in case the proposed recovery from the pension amount were to be deducted in future, it will lead to a harsh condition. For, it would be difficult for the applicant to survive financially on the meager pension. Therefore, the learned Tribunal was justified in concluding that the applicant's case is squarely covered by the case of Rafiq Masih's case (supra). Therefore, the contention raised by the learned Counsel for the petitioners is clearly unacceptable. 8. Similar orders, as passed by the learned Tribunal in the present case, were also challenged in the case of M. Satyanarayana's case (supra). A Coordinate Bench of this Court had upheld the similar orders passed by the learned Tribunal in the said case. Hence, the present case is equally covered by the case of M. Satyanarayana's case (supra). 9. However, by letter dated 10.7.2008, the applicant had given an undertaking to the Bank that any excess amount paid would be refunded by him. But simultaneously, as the applicant is retired employee, to permit the Railways to continue to recover from) the applicant's pension will cause a grave hardship to the applicant. As his case falls within Circumstance Nos. 2 and 5 of Rafiq Masih's case (supra), this Court, in view of the undertaking dated 10.7.2008 given by the applicant, is inclined to modify the impugned order dated 19.3.2019 to the limited extent that the petitioners need not refund the recovered amount to the applicant. 10. For the reasons stated above, this writ petition is partly allowed. Order dated 19.3.2019, passed by the learned Tribunal, in OA No. 21/370/2018 is modified to the limited extent that the petitioners need not repay the recovered amounts to the respondent No. 1-applicant. However, the petitioners shall not recover the remaining amount of Rs. 5,28,000/- from the respondent No. 1-applicant. No order as to costs. 11. As a sequel, miscellaneous petitions, pending if any, shall also stand dismissed.