Recovery of overpayment from retired Group C employee's gratuity impermissible without notice if over 5 years old or per Supreme Court guidelines.

ORDER

(As per Hon’ble Dr. Lata Baswaraj Patne, Judicial Member)

Heard Mrs. G Manjula, learned Advocate, representing the applicant’s counsel, and Mr. M Brahma Reddy, learned counsel for the respondents.

2. By this Original Application the applicant is seeking the following relief(s):-

“to declare that the recovery of Rs.51,441/- towards overpayment of salary from the gratuity amount of the applicant on his retirement date on 30.06.2020 without issuing any notice or following the Judgement of the Hon'ble Supreme Court in the case of State of Punjab vs. Rafiq Masih (washerman) as illegal, unjust and arbitrary and consequently direct the respondents to refund the recovered amount of Rs.51,441/- with GPF interest rate from the date of recovery till refund and pass such other order or orders deemed fit and proper in the interest of justice.”

3. The brief facts of the case in a nutshell are as under:

The applicant herein joined as a Khalasi in the Railway Electrification Project on 01.01.1984 and thereafter moved to Over Head Equipment and Power Supply Installation wing in the 2nd respondent in Guntur. He was granted promotion and reached up to Senior Technician in the VII CPC Level-6. He retired from service on 30.06.2020 and the pension calculation sheet issued along with service certificate on 01.07.2020, an amount of Rs.51,441/- is recovered from the Gratuity amount showing overpayment of salary. Since no notice or information is given earlier to such recovery, he sought details of overpayment particulars. The 3rd respondent under RTI proceedings dt. 18.03.2021 issued due and drawn statement of salary of the applicant showing excess pay from 1992 till 2016 in different periods totalling Rs.51,441/- Aggrieved by the recovery applicant submitted a representation dt.25.03.2021 to the 3rd respondent requesting to refund the recovered amount as the recovery is ordered in violation of the Railway Board letter in RBE No.72/2016 dt.22.06.2016 enclosing the DOP&T OM dt.02.03.2016. In the said OM, relying on the Judgement of the Hon'ble Supreme Court in the case of State of Punjab Vs Rafiq Masih (white washer) recovery from employees belonging to Group C and D services, recovery from retired employees or due to retire within one year of the order of recovery and recovery when the excess payment has been made for a period in excess of 5 years before the order of recovery is held impermissible. Though the case of the applicant is covered by the Judgement of the Hon'ble Supreme Court, respondents are not taking any action in refunding the recovered amount. Being aggrieved, the applicant filed the present O.A.

4. After notice, the respondents have appeared through their counsel, filed a detailed reply and opposed the relief on the ground that the applicant remained unauthorized absent for a total period of 509 days in various spells from 1991 to 1996 and he was imposed penalty for 12 months (non-recurring) on 01.04.1993 and 24months (non-recurring) on 01.05.1998 vide Memorandum No. GNT/P- 420/Leave/Inc.Corrsp. The same was admitted by the applicant. In terms of proviso Rule 1302- R-II to “…...an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence". As per the above rule position, the applicant’s pay has been revised after deducting the unauthorised absence periods and an amount of Rs. 16,315 was found to be excess payment and the same was recovered towards over payment of pay. The applicant was granted 2nd Financial up gradation from Grade Pay Rs.1900/- to Grade Pay Rs.2000/- w.e.f. 25.11.2010 and his pay was fixed duly granting the incremental benefits as per pay fixat