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2024 Supreme(Online)(CAT) 14355
CENTRAL ADMINISTRATIVE TRIBUNAL
Ramesh Singh Thakur, Judicial Member, Rashmi Saxena Sahni, Administrative Member
Harkesh Singh – Appellant
Versus
Union of India – Respondent
OA No. 060/441/2020
For the Appellants/Petitioners: Sh. Rohit Seth
For the Respondents: Sh. Sanjay Goyal
Ad hoc promotion pay in Construction Organisation reckonable for pension per RBE 85/2011; no recovery from Class III/IV employees after 25-year delay without hearing, absent fraud.
Headnote:(A) Railway Services (Pension) Rules, 1993 - Rule 49; Indian Railways Establishment Code Vol.-II/1987 - Rule 1303 [F.R.9(21)(a)(i)]; Railway Board circulars RBE No. 85/2011 dated 09.06.2011 and RBE No. 86/2011 dated 10.06.2011 - Ad hoc promotion in Construction Organisation - Basic pay drawn on ad hoc promotion in Construction Organisations to be reckoned as pay for calculating retirement/death benefits - RBE No. 85/2011 specifically provides that basic pay drawn by employee on ad hoc promotion shall be reckoned as pay in terms of Rule 1303 for emoluments under Rule 49 - RBE No. 86/2011 operates prospectively from 11.06.2011 and does not withdraw RBE No. 85/2011 - Pay fixation and pension based on last pay drawn in Construction Organisation upheld for promotion granted in 1994. (Paras 20-23)
(B) Recovery of excess payment - Principles of natural justice and equity - No recovery permissible from Class III/IV employees after long period (25 years) without opportunity of hearing, absent fraud or misrepresentation - Action violative of audi alteram partem and Article 14 - Recovery after prolonged delay arbitrary as employee cannot bear financial burden disrupting family sustenance - DoPT OM dated 02.03.2016 applying Supreme Court principles mutatis mutandis to railway employees. (Paras 24-28)
(C) Pension and retiral benefits - Last pay drawn - To be calculated on basis of pay actually drawn till superannuation in Construction Wing - Revised PPO, pension, gratuity, medical allowance, transport allowance with interest @ GPF rate directed. (Para 29)
Facts of the case:
Retired vehicle driver challenged refixation of pay reducing last pay from Rs.49,600/- to Rs.40,600/- w.e.f. 1994 on ad hoc promotion in Construction Organisation, consequent recovery of Rs.8,44,750/- from retiral dues including gratuity, and delayed pension settlement by parent division. Applicant joined as casual labour in 1981, received ad hoc promotions in Construction Organisation till retirement in 2019, lien in parent division.
Findings of Court:
PPO based on reduced pay quashed; pay restored w.e.f. February 1994; revised PPO and all retiral benefits including pension, medical allowance, transport allowance based on last pay Rs.49,600/- with GPF rate interest after adjustments; exercise within four weeks. (Para 29)
Issues: Whether ad hoc promotion pay in Construction Organisation reckonable for pension; validity of recovery after 25 years without hearing; applicability of RBE 85/2011 over RBE 86/2011.
Ratio Decidendi: Basic pay on pre-2011 ad hoc promotion in Construction Organisation counts for pension per RBE 85/2011; prospective RBE 86/2011 does not override; no recovery from lower cadre employees post long delay sans fault or hearing, per equity and natural justice.
Result: Original Application allowed.
| Table of Content |
|---|
| 1. applicant's service history and pay reduction grievance (Para 1 , 2 , 3 , 5) |
| 2. applicant's representations and respondents' recovery details (Para 4 , 13 , 14 , 15 , 16) |
| 3. respondents defend pay refixation and recovery rights (Para 6 , 7 , 8 , 9 , 10 , 11) |
| 4. tribunal notes admitted facts and rbe 85/2011 applicability (Para 17 , 18 , 19 , 20) |
| 5. rbe 86/2011 prospective; ad hoc pay reckonable for pension (Para 21 , 22 , 23) |
| 6. no recovery permissible without hearing after long delay (Para 24 , 25 , 26 , 27 , 28) |
| 7. restore pay, revise ppo with interest (Para 29 , 30) |
ORDER
Per: SH. RAMESH SINGH THAKUR MEMBER (J):
1. This Original Application has been filed under Section 19 of the A.T. Act, 1985 seeking the following relief(s):-
“8(i) Quash the PPO (Annexure A-10) based upon reduced pay of applicant of Rs. 40,600/- and not last pay drawn i.e. Rs. 49,600/- and pay re-fixation order by respondents (Annexure A-4 Colly) vide which the pay of applicant has been reduced and re-fixed w.e.f. February 1994 till date of his superannuation i.e. 30.09.2019 and in calculating recovery and effecting the same from the retiral dues of applicant while reducing his pension and retiral dues on the other hand while releasing them after a prolong delay for which there is no justification.
ii) Direct the respondents to restore the pay of applicant w.e.f. February 1994 and issue revised PPO, pension as well as all retiral benefits/dues including Medical Allowance and Retirement Composite Packing and Transport Allowance based upon the last pay drawn by the applicant @ Rs. 49,600/- with interest @ 12% from date the same became due till its actual payment and also grant interest @ 12% on all the delayed payments of pension, retiral dues etc. from date when the same were liable to be released consequent upon superannuation of applicant from service till its actual payment.
2. The facts as projected by the applicant are that the applicant joined service in respondent department on regular basis on 21.02.1981 as Casual Labourer/Khalasi. He was granted Temporary Status on 01.01.1986. He was promoted as Vehicle Driver (ad hoc) w.e.f. 01.03.1986 in the scale of Rs. 260-400 (Rs. 950-1500 after coming into force 4th CPC). The applicant was further promoted as HS Driver on ad hoc basis vide Dy. CE (Construction) notice dated 03.02.1994 (Annexure A-1) in the scale of Rs. 1200-1800 as approved by Chief Engineer, Construction GCII/K.Gate, Delhi which order is subsisting till date. The applicant was promoted in his parent Division in the pay scale of Rs. 3050-4590 vide order dated 16.05.2001 (Annexure A-2). The applicant was granted benefit of scale of Rs. 5200- 20,200 + Grade Pay 2000 from scale of Rs. 1200- 2040 under MACP Scheme vide order dated 06.04.2010. The applicant cleared trade test for promotion to the post of Vehicle Drier Grade-II in scale of Rs. 5200-20,200 + Grade Pay of Rs. 2400 vide order dated 07.09.2012 and was promoted Vehicle Driver Grade II on 17.12.2012. He was regularized Vehicle Driver (HS) on 01.07.2013. The applicant was promoted in pay scale of Rs. 5200- 20200+2800 Grade Pay as Tech-I/vehicle driver vide order dated 29.05.2015. The pay of the applicant was fixed at Rs. 44,100/- in scale of Rs. 5200- 20,200 + GP 2800/- w.e.f. 01.01.2016.
3. It is further stated by the applicant in the Original Application that the retirement notice dated 23.05.2016 (for the applicant who was due to retire on 30.09.2019) (Annexure A-3) was issued by the Executive Engineer/Construction-I, Northern Railway, Chandigarh. While granting pension and retirement benefits, the pay of the applicant had been considerably reduced w.e.f. 1994 till date by taking away the scale of Rs. 1200-1800 given to the applicant in Construction Organization while placing him in scale of Rs. 950-1500 as on 01.04.1994 thereby reducing his salary from Rs. 49,600/- to Rs. 40,600/- and consequently taking out a total recoverable amount of Rs. 8,44,750/-.
4. Aggrieved against the ac
