| SooperKanoon Citation | sooperkanoon.com/54323 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Jul-23-2002 |
| Judge | S A B.P., N Prusty |
| Reported in | (2004)(1)SLJ105CAT |
| Appellant | Ashutosh Banerjee |
| Respondent | Union of India (Uoi) and ors. |
2. The applicant's contention is that while he was working as Station Master vide office order dt. 25.2.87/6.4.87, his pay was fixed at Rs. 600/- from 1.1.84, Rs. 620/- from 1.1.85 and Rs. 640/- from 1.1.86 in the scale of Rs. 425-640/- (RS) with effect from 14.2.84 and 26.3.84 against released vacancies due to restructuring when he was working as Asst. Station Master and accordingly, the applicant received his salary from time to time on the basis of that pay fixation. Vide office order dt. 18.7.1996 the applicant received information that his pay has been wrongly fixed at Rs. 600/- in the scale of Rs, 455-700/- (RS) w.e.f.
1.1.84 and the same was being refixed w.e.f. 1.1.84 onwards and as he was due to retire on 1.11.96 (FN), the overpayment involved was to be recovered from his settlement dues. The applicant submitted a number of representation to the Authorities for reconsideration of his case of alleged wrong fixation of pay w.e.f. 1.1.84, categorically stating therein that the pay scale had been rightly fixed in accordance with the revised scale (4th Pay Commission) subsequent to 1.1.84 and also that he was entitled to avail the benefit of fixation in the scale of Rs. 455-700/- (RS) at the time of promotion in terms of Serial Circular No. 179-81 and as such no recovery should be made from his retiral benefits. But his prayer was not acceded to by the Authorities and his representations/appeals were regretted having no merit, vide letter dt.
28.12.99 (Annexure-A). Hence the present application.
3. The respondents in their reply stated that the applicant on receipt of pay of Rs. 560/- in the scale of Rs. 425-640/- (RS) as on 1.2.84 was allowed promotion to the scale of Rs. 455-700/- (RS) on restructuring of cadre of SM/ASM w.e.f. 14.2.84. His pay was fixed at Rs. 600/- p.m.
Later on benefit in scale of Rs. 455-700/- (RS) was given w.e.f. 1.1.84 instead of 14.2.84 and his subsequent pays were allowed as per the above fixation. At the time of processing final settlement before the applicant's retirement, Accounts Department detected that his pay at Rs. 600/- as on 1.1.84 was erroneously granted, which should have been Rs. 580/- p.m. Accordingly, the error was rectified in July 1996. As a consequence, there was an excess payment of Rs. 23,508/- which was decided to be recovered. Hence office order dt. 18.7.96 (Annexure-C) was issued refixing his pay since 1.1.84 onwards for and recovery of the overpayment from his settlement dues.
4. Mr. A.K. Bairagi, learned Counsel for the applicant, during the course of hearing submitted that the applicant was allowed the pay of Rs. 600/- from 1.1.84, Rs. 620/- from 1.1.85 and Rs. 640/- from 1.1.86 as per office order dt. 25.2.87/6.4.87 (Annexure-B) and he continued to receive that pay along with time to time increments and other benefits on the basis of that pay till July 1996. While the applicant was to retire on 1.11.96, the office order dt. 18.7.96 (Annexure-C) was served on his. Accordingly, the applicant's pay was reduced and an amount of Rs. 23,508/- was recovered from his without any prior notice and without following due process of law/rules of natural justice and without giving him a chance of personal hearing in the matter, even though by that time he was allowed to continue with the pay scales as stated above April 1987 w.e.f. 1.1.84 till July 1996 for about more than 12 years. When the alleged error was said to have been detected after a lapse of 10 years of continuous payment, the department should not have reduced the pay unilaterally, without any notice to show cause.
5. In support of his contentions learned Counsel for the applicant cited the decision of Jabalpur Bench of this Tribunal reported in (1989) 10 ATC 90,Pushpa Bhide v. UOI and Anr. decision of the Hon'ble Apex Court reported in (1994) 27 ATC 121 = 1994(2) SLJ 99 (SC), Shyam Babu Verma and Ors. v. UOI and Ors. In the case of Puspa Bhide, it has been observed by the Tribunal at para 26 of the judgment as follows:- "After due consideration we are of the view that even if for arguments sake, the contention of the respondents is accepted that certain error place owing to oversight in giving higher seniority to the applicant, the matter is irreversible notwithstanding the contention of the respondents. It is not the case of the respondents that the initial appointment of the applicant was fortuitous or her promotion as Selection Grade Teacher in the cadre of Assistant Teacher was ad-hoc or temporary. Therefore, we find that the respondents are estopped after several years from correcting what they claim to be mistake committed by the respondents themselves and withdrawing the benefits given in the past to the applicant retrospectively at the expense of the applicant. We have also taken a similar view in the case of D.K. Verma v. Union of India, which was reported in (1987) 4 ATC 157.
6. In the above said decision the Tribunal also discussed the decision of the Principal Bench of the Tribunal in the case of C.S. Bedi v.Union of India and Ors., ATR (1988) 2 CAT 510, wherein it was held that the payments which were received by the applicant in that case on the basis of fixation of pay in 1981 on promotion to a higher post and the applicant continued to draw salary on that post until 1986 when the mistake was detected after several years were irreversible and any recovery of excess payments after a long lapse of time would be unjust, illegal and inequitable and the respondents were directed not to make any recovery.
A similar view has also been taken by the Principal Bench in the case of Chander Bhan v. UOI and Ors., (1987) 3 ATC 432. Finally, the Tribunal held that consequential fixation of pay and recoveries cannot be upheld and are quashed. It was directed that if any recoveries or adjustment of pay and emoluments etc., have been already made from the applicant, the same should be refunded.
7. In the case of Shyam Babu Verma and Ors., at paragraph 11 of the judgment the Hon'ble Supreme Court has been pleased to observe as follows:- "Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480/- in terms of the recommendations of the Third Pay Commission w.e.f. 1.1.73 and only after the period of 10 years, they became entitled to the to the pay scale of Rs. 330-560/- but as they have received the scale of Rs. 330-560/- since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1.1.1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." 8. Dr. S. Sinha, the learned Counsel for the respondents submitted that since the applicant was not entitled to the pay as was fixed under office order dt. 25.2.87/6.4.87 (Annexure-B), his pay has to be reduced, when it was detected and the applicant has to refund the amount which has been wrongly paid to him. As such recovery can be made at any point of time and hence the excess amount paid has been recovered from his DCRG. There was no irregularity or illegality in the action of the respondents in recovering the excess paid amount from the applicant, after the same was detected by the Department.
9. We have heard Mr. Bairagi, learned Counsel for the applicant and Dr.
(Ms) S. Sinha, learned Counsel for the respondents and gone through the pleadings and documents filed by the respective parties. The main point for consideration in this case is as to whether the office order dt.
18th July 1996 (Annexure-C) refixing/reducing the pay of the applicant about 10 years after it was fixed vide office order dt. 25.2.87/6.4.87 (Annexure-B) and directing recovery of the excess paid amount from his settlement dues on retirement, is sustainable in law and whether the applicant is entitled to get refund of the amount recovered from his retiral dues.
10. Now coming to the question of reduction of salary without any notice to show cause and without following due process of law i.e.
principle of natural justice. It is well settled that the salary of an employee during his course of employment and all retiral benefits as per his entitlement, which also includes the DCRG amount, after his retirement, are his main property, by which he maintains his entire family and the said property right of a citizen cannot be curtailed by the employer without giving him a notice to show cause/giving him a chance of hearing in the matter i.e. without following the due process of law/principles of natural justice. In case the procedures as stated above are not followed by the employer while any such action is taken, then it has to be set aside, declaring the same as violative of the constitutional rights guaranteed to an employee. In the instant case, it is an admitted fact that the pay of the applicant was fixed at Rs. 600/- from 1.1.84, Rs. 620/- from 1.1.85 and Rs. 640/- from 1.1.86 as per office order dt. 25.2.87/6.4.87 (Annexure-B) and the applicant was allowed to draw his salary accordingly from February 1987/April 1987 as per the fixation of his pay w.e.f. 1.1.84 till July 1996 - when the office order Annexure-C was issued i.e. after a period of about 10 years. The office order dt. 18.7.96 (Annexure-C) was issued reducing the pay and directing for recovery of excess payment without any prior notice to show cause to the applicant and thereby without following the principles of natural justice. It goes without saying that the benefit of fixation of pay under 'Annexure-B' was extended by the Authorities in favour of the applicant and this was done by the Railway Administration. The applicant had no contribution or involvement in the said fixation of salary or in the issuance of the said office order under Annexure-B. This was done solely by the administrative authorities taking into consideration the pay scale applicable to the applicant as per the prevailing service conditions. The applicant was allowed to enjoy the salary, as has been fixed by the respondents for years. As such the applicant had received the amounts towards his salary in the respective months beginning from February 1987 till July 1996 and utilised the same, accepting it as his legitimate dues. The office order dt. 18.7.96 (Annexure-C) reducing his salary with direction for recovery of the so called excess payment which was paid to the applicant since 1987 till July 1996, was issued by the Railway Authorities without any prior notice to the applicant and without determining the same in his presence by following the rules of natural justice. In the decisions cited by the learned Counsel for the applicant and also in a good number of cases, different courts following the principle settled by the Hon'ble Apex Court in this regard, have already settled the law on this point to the effect that any action that would adversely affect the accrued right of an official, cannot be cancelled or modified without following the principles of natural justice and also it is well settled that a benefit already extended to an official/employee cannot be withdrawn with retrospective effect (i.e. from the date it is given as in this case) without its proper determination in presence of the affected employee following the principles of natural justice. This settled principle of law still holds good in the field and is being followed by different Courts/forums till today. The respondents while passing the impugned order under Annexure-C in reducing the salary of the applicant and directing recovery have not determined the same following the process of law/principles of natural justice by issuing a notice to show cause and giving the applicant a chance of personal hearing and as such passed the impugned unilateral/illegal order.
11. In view of our discussions made above, the impugned office order dt. 18.7.96 seen at Annexure-C and the consequential order dt. 28.12.99 (Annexure-A) passed in the appeal of the applicant regretting the appeal, are hereby quashed/set aside. The respondents are directed to refund the amount of Rs. 23,508/- recovered from the applicant from his retiral benefits/DCRG amount towards overpayment and also pay him the balance amount of monthly salary from July 1996 till October 1996 i.e., till the date of his retirement along with all consequential benefits.
Since the applicant has retired on superannuation on 1.11.1996, his retirement benefits should be recalculated and amount becoming due should be paid to him along with interest at the rate of 9.5% per annum from the dates all the above stated amounts were due, till the date of actual payment, within 3 months from the date of receipt of a copy of this order.
12. The O.A. is accordingly allowed. However, there shall be no order as to costs.