IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11275 of 2009 Date of decision: 16th September, 2009 Union of India and others … Petitioners Versus Jagdish Lal and another … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Nitin Kumar, Advocate for the petitioners. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. This writ petition has raised two issues, which have been effectively and rightly dealt with by the Central Administrative Tribunal (hereinafter referred to as, ‘the Tribunal’). Firstly, employer is not entitled to recover the amount paid in excess, when there was no fault or misrepresentation on the part of employee. Secondly, in review petition also, while examining the accounts, employee has been held entitled to increment, as per rules. It was held that if employee is promoted to higher post in the same scale, one increment is admissible. Jagdish Lal respondent joined Indian Railway as a Shed Cleaner on 24th March, 1967. During his long career, spanning over 33 Civil Writ Petition No. 11275 of 2009 years, he earned various promotions. He was promoted as a Fireman Grade ‘C’ in March 1973, Fireman Grade ‘B’ in March, 1980, Fireman Grade ‘A’ on 1st June, 1981, as Shunter on 26th May, 1995 and thereafter as Goods Driver on 22nd November, 1996. On 1st January, 2003, he was promoted as Senior Goods Driver in the scale of Rs.5500-9000. He was further promoted as Passenger Driver in the same scale of Rs.5500-9000 on 30th March, 2004 and after 12 days of his promotion, he sought voluntary retirement and he was relieved from his duty with effect from 12th April, 2004 and his qualifying service was calculated and he was granted benefit of 33 years of service. At the time of retirement, in the pension payment order, basic pay of the respondent employee was noticed as Rs.6900/-. The respondent employee made a claim that with effect from 1st January, 2003, he was drawing basic pay of Rs.7075/- and his next date of increment fell on 1st January, 2004, therefore, his basic pay should have been recorded as Rs.7250/-. He further prayed that he was entitled to benefit of pay fixation due to his promotion in the higher grade in pursuance of order of promotion dated 30th March, 2004, whereby he was promoted as Passenger Driver. Another grievance made by the respondent employee was that due to wrong calculation of basic pay, a sum of Rs.63,971/- was wrongly deducted from his Death Cum Retirement Gratuity (hereinafter referred to as, ‘DCRG’) and he has been paid amount of Rs.2,10,920/- instead of Rs.2,74,981/-. In the written statement filed to the original application preferred by the respondent employee before the Tribunal, respondent employer Railways took a stand that after promotion as Fireman Grade ‘B’, the employee was posted as Adult School Teacher on a stationary job, therefore, he was not entitled to 30 per cent running allowance. When the employee earned various promotions as Fireman Grade ‘A’ and Shunter, 2 Civil Writ Petition No. 11275 of 2009 he continued to work as Adult School Teacher up to 25th May, 1995 on a stationary post and thereafter he was posted in the original job of his cadre. Thus, he was not entitled to the merger of 30 per cent running allowance when he was performing his duties as Adult School Teacher. It was further stated that respondent employee was promoted as Driver Goods on 17th May, 1999 but he has assumed duties as Driver Goods on 9th June, 2000 after a gap of six months. It was for these reasons that his basic pay was reduced to Rs.6900/- by giving a show cause notice on 15th December, 2000, with effect from 1st January, 2004. The respondent employee had raised a plea before the Tribunal that in view of the judgment rendered by Hon’ble Apex Court in “Sahib Ram v. State of Haryana” JT 1995(1) SC 574, as there was no misrepresentation or fraud on his part, no recovery could be effected from his DCRG. The Tribunal, instead of relying upon Sahib Ram’s case (supra), relied upon another decision of Hon’ble Apex Court rendered in “Col. (Retd.) B.J. Akkarar v. The Government of India and others” 2006 (9) JT 125 and held that the amount wrongly paid can be recovered. However, the Tribunal held that there was a delay in payment of DCRG and commuted value of pension and the employee is entitled to 6 per cent interest from the date he was relieved from his duties, that being 12th April, 2004. The employer Union of India challenged the decision of the Tribunal regarding award of interest on delayed payment by filing Civil Writ Petition No. 5410 of 2008. This Court upheld the judgment of the Tribunal and dismissed the writ petition preferred by the employer. The respondent employee thereafter, filed a review application stating therein that the Tribunal, relying upon a judgment of Hon’ble Apex Court rendered in Col. (Retd.) B.J. Akkarar’s case (supra), had upheld deduction of Rs.63,971/- from DCRG but has not applied its mind to the fact whether the petitioner 3 Civil Writ Petition No. 11275 of 2009 in fact had obtained running allowance twice or not. It was pleaded that the applicant to the review petition, in his rejoinder had taken a specific stand that as per Annexure A-7 dated 18th September, 1995, the employee was drawing the same pay which he was drawing as Adult School Teacher, even after repatriation as Shunter which was a running allowance post. The following specific averment was made in the review application: “Admittedly, the applicant was working in the running staff category when he was appointed in the railway and his pay was fixed after taking into account 30% of the basic pay which he continued to draw till he was adjusted as Adult School Teacher which was non-running allowance post called stationary post and while fixing the pay of the applicant, the same was required to be taken into consideration. Thus, there was no illegality and it was not a case of giving benefit of running allowance twice as stated by the respondents in the written statement. On repatriation of the applicant again to running allowance post i.e. Shuter, it was not the case of the respondents that applicant was again allowed 30 % while fixing his pay as Shuter. As per Annexure A-7 dated 18.9.1995 annexed with the rejoinder, applicant continued to get the same salary as he was getting prior to repatriation. Thus, this Hon’ble Tribunal over-looked the statutory rule position on the basis of which recovery for the sum of Rs.63,971/- was also made from the DCRG of the applicant.” In the review application, it was also stated that on the facts of the case, ratio of law laid in Col. (Retd.) B.J. Akkarar’s case (supra) was not applicable, as the judgment rendered in Col. (Retd.) B.J. Akkarar’s case (supra) is distinguishable and the case of the petitioner is covered by the ratio of decision of Hon’ble Apex Court rendered in “P.H. Reddy v. NTRD” 2002 (2) SCT 987. 4 Civil Writ Petition No. 11275 of 2009 The Tribunal directed the petitioner employee to show the original record with regard to the payment of 30 per cent running allowance to the applicant twice. After verifying the record, the Tribunal came to the conclusion that as per the calculations of the respondent employee, his basic pay was fixed at Rs.6900/- with effect from 1st January, 2004. Thereafter, he was promoted as Passenger Driver. By working out the calculations, the Tribunal came to the conclusion that since the employee was promoted as Passenger Driver in the same scale of Rs.5500-9000, which is drawn by Senior Goods Driver as per rules, he was entitled to one increment with effect from 1st January, 2003. Therefore, the employee’s pay was not fixed according to the rules and he was held entitled to grant of one increment at the rate of Rs.175/-. According to the Tribunal, there was no dispute about the fact that he was performing the duties of a higher post. It was further held by the Tribunal that instructions dated 4th June, 2004 cannot be applied retrospectively and fixation of pay was to be granted with effect from 1st January, 2003 and finally the Tribunal concluded as under: “10. On a query put up by the Court to the respondents’ counsel that after making fresh calculations, if any amount remains to be paid by the applicant, his reply is in negative. Thus, we find that on wrong fixation of pay by the respondents, applicant got less pay for about three years and even recovery from his DCRG was also made due to no fault on his part. Thus, we hold that he is entitled to interest on the amount which was paid less to the applicant.” This finding of the Tribunal is being assailed before us in the present writ petition. Counsel for the petitioner employer has stated that once it was held that the recovery could be effected from the employee, as he had drawn benefit of running allowance twice while working as Adult 5 Civil Writ Petition No. 11275 of 2009 School Teacher, the same could not be reopened in the review petition. It was further urged that in the review application while calculating the salary, claim of the respondent employee, that he was not granted Rs.175/- as increment on promotion, which was admissible to him as he was working in the same scale, could not be considered as it amounted to reopening the case and granting a relief for which no prayer was made in the original application. In the present case, the Tribunal had summoned the original record with regard to the entitlement of the respondent employee to determine whether he was paid 30 per cent running allowance twice or not. During the examination of record, it surfaced that one increment, to which the employee was entitled, had not been granted to him. Thereafter, fresh calculation was worked out. It was the counsel of the petitioner, who stated before the Tribunal that after grant of increment no amount is due. The Tribunal also gave a finding of fact that the employee got less salary due to wrong fixation of pay and there was no fault on his part. We are conscious that this Court, while examining the decision of the Tribunal, does not act as an appellate Court, therefore, we will be hesitant to tread on the path of re-evaluating the finding of fact recorded by the Tribunal. It has been held in ‘Union Territory, Chandigarh and another vs. The Central Administrative Tribunal, Chandigarh and others’, 2001(2) RSJ 723, as under: “8. Before adverting to the respective arguments, we consider it necessary to observe that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal acts illegally or improperly i.e. it decides a question without giving an opportunity to be heard to the party affected 6 Civil Writ Petition No. 11275 of 2009 by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal, as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. A finding of fact recorded by an inferior Court or Tribunal can be corrected only if it is shown that in recording the said finding the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari.” A Full Bench of this Court in “Budh Ram v. State of Haryana” 2009 (3) SCT 333 also examined the legal position whether any recovery can be effected from an employee, who was granted any monitory benefit, without any misrepresentation and fraud on his part. The Full Bench held that in case the employee is guilty of misrepresentation or fraud, the employer is entitled to recover the amount. Furthermore, where an employee has received windfall or bounty, to which he is not entitled and which as a prudent man he can decipher that the amount paid is not justifiable, then also the employer was held entitled to recover the amount paid in excess. But where a person like the respondent employee, who has been granted, any benefit, without any deception, misrepresentation or fraud on his part, due to some error in calculation, it was held that no recovery can be effected. 7 Civil Writ Petition No. 11275 of 2009 We are of the view that the law propounded by the Full Bench of this Court in Budh Ram’s case (supra) also weighs in favour of the respondent employee. Thus, no interference is warranted, as the decision of the Tribunal is just, fair and reasonable. Therefore, present writ petition is dismissed. We pass no order as to costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE September 16, 2009 rps 8