H\g K ORDER FOR CONSIDERATION Sd/- ‘ Dhirendra Mishra I Judge S qw a, ¢ sw- R .L. JHANWAR Judgfr H POST ON g g‘HXPRIL‘ 2009 ' Sd/— Dhirendra Mishra ‘ Judge ON'BLE SHRI R.L. JHANWAR J - s K liandey VERSUS R RESPONDENTS Union of India and others HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION NO.2668 OF 2005 Division Bench: Hon’ble Shri Dhire_ndra Mishra & Hon'ble Shri R.L. Jhanwar, JJ Present: Mr. Pankaj Shrivastava, Advocate counsel for the petitioner. Mr. Abhishek Sinha and Mr. Ghanshyam Patel, Advocates for respondents No. 1 to 4. ORDER (Passed on Q%pril, 2009) The following order of the Court was passed by Dhirendra Mishra, J:- 1. This writ petition is directed against the order dated 11th January, 2005 passed by Central Administrative Tribunal, Jabalpur (in short “Tribunal"), whereby the Tribunal has partly allowed the original application filed by the petitioner and held that the petitioner is entitled for interest on the amount of Death-Cum-Retirement Gratuity (in short PETITIONER S.K. Pandey, S/o Late K.D. Pandey, Aged about 62 years, Retired L.I/CCC/BMY, Adarsh Nagar, Charoda, Bhilai, Distt. Durg, Chhattisgarh. VERsus RESPONDENTS l. Union of India, Through General Manager, South Eastern Central Railway, Bilaspur Zone, (Chhattisgarh) 2. Divisional Railway Manager, South Eastern Central Railway, Bilaspur Division, Bilaspur (Chhattisgarh) 3. Senior Divisional Personnel Manager, South Eastern Central Railway, Bilaspur Division Bilaspur (Chhattisgarh) Senior Divisional Mechanical Engineer, South Eastern Central Railway, Bilaspur Division Bilaspur (Chhattisgarh) 5. Central Administrative Tribunal, Jabalpur, MP. "DCRG”), which was actually paid to him at the relevant rates, as per GPF Rules. 2. Case of the petitioner, in brief, is that he joined Railway service in the year 1964 and was lastly promoted on the post of Loco Motive Inspector in the pay—scale of Rs.6500- 10,500/—. He opted for voluntary retirement from Railway service on 31“ August, 2001 on the pay-scale of Rs.10,500/- with full retiral benefits. After eight months of his retirement, pension payment order dated 9.5.2002 was issued and an amount of Rs.2,97,413/- was certified towards his DCRG by the Accounts Department. However, the petitioner was paid only a sum.of Rs.2,06,352/— in the month of June, 2002 towards DCRG and thus, an amount of Rs.91,061/- was paid less to the petitioner without assigning any reason. He was drawing salary of Rs.10,500/- per month on the datevof his retirement in the pay-scale of Rs.6,500-10,500/— and he was drawing the above salary for more than 20 months, therefore, his pension ought to have been calculated on the basis of average of ten months’ pay. However, the respondents took average pay of Rs.10,251/— for the purposes of fixation of his pension and he was also paid retirement gratuity at pay of Rs.10,300/- contrary to the rules. . The respondents, in their return before the Tribunal, stated that the petitioner was promoted as Passenger Driver from the post of Goods Driver on the pay-scale of Rs. 1600—2660/- (RPS) on ad hoc basis on 13.12.1990. Subsequently, he was again promoted as Traction Foreman Running (Ad hoc) w.e.f. 13.1.1991, and his pay-scale was fixed on the basis of promotion on the post of ad hoc Traction Foreman Running in the scale of 2000-3000 (RPS) w.e.f. 4.1.1991 at RS.2,825/-, whereas, his pay should have been fixed on the basis of substantive post of Goods Driver at Rs.2620/- as per rules. The petitioner .was, subsequently, regularized as Loco Running Supervisor on the pay~scale of Rs.2000~3200 (RPS) .27 . vide order dated 315t October, 1995 and this resulted in overpayment of Rs.48,861/— to the petitioner. The petitioner’s pay was accordingly re-fixed at Rs.2,625/- in place of Rs.2,825/- w.e.f. 4.1.1991 and overpayment of Rs.48,861/— was recovered from his DCRG. The respondents, in their return to the instant petition, have submitted that after retirement of the petitioner, his service sheet and leave records were sent to the Sr. Divisional Finance Manager, Bilaspur for review. On review, it was pointed out that the petitioner was firstly promoted as Passenger Driver on ad hoc basis in the pay-scale of Rs.1600-2660/— and subsequently, he was again promoted as Traction Foreman on ad hoc basis on the pay-scale of Rs.2000-3000/—. His pay—scale was fixed at the rate of Rs.2825/- w.e.f. 4.1.1991, whereas it should have been fixed on the basis of substantive pay as Goods Driver at the rate of Rs.2,625/-. He was regularized on the post of Loco Running Supervisor on the pay—scale of Rs.2000-3200/— (RPS) vide order dated 31.10.1995. The above wrong fixation of pay has resulted in overpayment of Rs.48,861/—. All settlement of payment has been arranged by taking last pay drawn by the petitioner at Rs.10,300/-‘. Thus, the overpayment made to the petitioner has been correctly recovered from his DCRG and the balance amount has been rightly paid. Mr. Pankaj Shrivastava, learned counsel appearing for the petitioner vehemently argued that deduction of Rs.91,061/- has been made from the DCRG without affording any opportunity of hearing to the petitioner, and his pension has been wrongly fixed by taking his last pay drawn at Rs.10,300/—, though he was drawing a salary of Rs.10,500/- during last 20 months of his service. The petitioner was promoted from time to time to higher post, which carried higher responsibility; therefore, the petitioner was entitled for the benefit of Rule 1316. (F.R.22C) of the Indian Railway Establishment Code (Volume-II), which reads as under: \_\ \ “131 6. (F.R.22C).-(1) Notwithstanding anything contained in these rules where a railway servant holding a post in substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or, officiating capacity to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notional/y arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued. Relying upon the judgments in the matters of Bhagwan Shukla Vs. Union of India and othersl, Sahib Ram Vs. State of Haryana and othersz and Kerala State Road v Transport Corporation Vs. K.O. Varghese and others3, it is argued that the respondents have reduced the petitioner’s basic pay after his retirement without any show-cause notice and without affording any opportunity of hearing to. him. Since the action of the respondents in re-fixing his pay—scale after eight months of his retirement involve civil consequences, principles of natural justice should have been followed. However, the tribunal ignoring the above aspect of the matter, has passed the impugned order, which cannot be sustained. On the other hand, Mr. Abhishek Sinha, learned counsel for the respondents contended that the ;petitioner's pay-scale was wrongly fixed at the rate of Rs. 2,825/— on the basis of his promotion to the, post of Traction Foreman w.e.f. 4.1.1991, whereas, his pay should have been fixed at Rs.2,625/- on the basis of substantive pay of Goods Driver. This mistake was, detected after his retirement and the same was subsequently rectified and overpayment of Rs.48,861/- was recovered on re-fixing of his pay-scale from the DCRG. The ground of violation of principles of natural justice is also not available to the petitioner as Rule 15 of the Railway Services (Pension) Rules-1993 (for brevity “the Rules, 1993") 1 AIR 1994 SC 2480 2 1995 Supp (1) scc 18 3 (2003) 12 scc 293 f empowers the Railways/respondents to recover overpayment and aHowances, leave saiary or other dues, such as overpayment on account of payment and allowances etc. from retirement, death, terminal or service gratuity, which are not subject of the Pension Act, 1871. Relying upon the judgment in the matter of State of Karnataka and another Vs. Mangalare University Non- Teaching Employees’ Association and Others", it was argued that violation of principles of natural justice may not be aiways a ground for striking down an order when the order is otherwise in accordance with law and no real prejudice is caused to the petitioner on account of not affording an opportunity of making representation. We have heard learned counsel for the respective parties and gone through the material available on record, including the order impugned. Undisputed facts that emerge from the pleadings of the respective parties, are that the petitioner was promoted on ad hoc basis on 13.12.1990 as Passenger Driver from the post of Goods Driver in the pay-scale of Rs.1600-2660/—. He was further promoted on the post of Traction Foreman Running in the scale of Rs.2000-3000 on 4.1.1991 and thereafter, his services were regularized on his promoted post as Loco Running Supervisor vide order dated 31.10.1995. The petitioner was promoted on ad hoc basis on the post of Passenger Driver, which carries greater responsibility. In rejoinder filed before the Tribunal, the petitioner had claimed the benefits of Rule 1316. (F.R.22C) of the Indian Railway Establishment Code (Volume-II), as he discharged, firstly the duties of Passenger Driver and thereafter, occupied the post of Traction Foreman Running, which carries higher responsibility than Passenger Driver. It is also not in dispute that re-fixation of the salary was done eight months after the retirement of the petitioner and his A . (2002) 3 8&2 pay-scale was reduced from Rs.2,825/— to Rs.2,625/— w.e.f. 4.1.1991. 10. In the matter of Bhagwan Shuklal, the petitioner’s salary was reduced retrospectively w~.e.f. 18.12.1970 on the ground that his salary had been wrongly fixed. The re-fixation was made in the year 1991 without any show-cause notice to the petitioner. The Tribunal dismissed the petition of the Railway employee. The Hon’ble Supreme Court allowing the appeal of the employee, quashed the order of the Tribunal and held that the order has been passed in flagrant violation of principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. The order of the Tribunal as well as the order (memorandum) impugned before the Tribunal reducing the basis pay of the appellant, was also quashed. In Sahib Ram’sz case also, excess payment was made to the appellant of upgraded pay-scale due to wrong construction of relevant order of the authority concerned without any misrepresentation by the employee. In these circumstances, it was held that the appellant cannot be held to be at fault and recovery of payment already made from the appellant was restrained. In Kera/a State Road Transport Corporation3, the recovery was sought to be effected from pension on the ground of wrong fixation pfpay having been fixed 26 years ago. The High Court held the recovery as inequitable, and order of the High Court was upheld in appeal by the Hon’ble Supreme Court. It is true that in all cases of violation of principles of natural justice, it is not necessary to exercise jurisdiction under Article 226 of the Constitution and set at naught the action 11. 12. 13. ,I ‘ g ‘rrv taken, as held in the matter of State of Karnataka and Another". In the aforesaid matter, the Hon’ble Supreme Court considering the fact that the university authorities themselves were espousing the cause of the employees while corresponding with the government in the matters of payment of HRA and CCA, held that no real prejudice was caused to the employees on account of not affording an opportunity of making representation. 14. So far as contention of learned counsel for the respondents that the principles of natural justice shall not be applicable in the present case as Rule 15 of the Rules, 1993 empowers the Railways to make recovery of government dues from the retirement, death, terminal or service gratuity, is concerned, it is settled law that where an act of judicial, quasi-judicial or administrative functionary ensues civil consequences, principle of natural justice has to be followed, even if the rule is silent in this regard. We also find force in the argument of the petitioner that he was promoted on the post of Passenger Driver on ad hoc basis and again on the post of Traction Foreman Running and thus, he occupied the post carrying higher responsibility, therefore, he was entitled for the benefit of Rule 1316. (F.R.22C) of the Indian Railway Establishment Code (Volume-II). 15. However, in the instant case, fixation of salary of the petitioner was done in the year 1990 and on the basis of same, he was paid salary up to the year 1995. Re-fixation was done after eight months of his retirement and the recovery was effected on the basis of such re—fixation. In these circumstances, the petitioner cannot be held responsible for overpayment of pay, therefore, we are of the considered opinion that the order of recovery to the extent of Rs.76,928/— made from the amount of DCRG of the petitioner, cannot be sustained. \' ., 1 to 4 are directed to pa interest @ 9% 17. No order as to costs. K 7 N / ,Ax ~ Sdl- Dhirendra Mishra Judge partly allowed. Respondents No. y Rs.76,928/- R .L. JHANWAR ‘ Judge Sd/—