Retired employees are protected from recovery orders made without prior notice and where no misrepresentation occurred.

ORDER

Present Original Application has been filed under Section

19 of the Administrative Tribunals Act, 1985 , seeking the following relief:-

“i. to issue an order or direction in the suitable nature quashing the impugned order dated 28.02.2024 issued from the office of Assistant Divisional Finance Manager North Central Railway- Prayagraj [filed as Annexure No.A-1 with Compilation-I to this original application].

ii. to grant such other and further relief(s) which this Hon’ble Court may deem fit and proper in the facts &

circumstances of the case;

iii. to award cost of the original application to the Applicant.”

2. Brief facts of the case are that the applicant was a permanent employee in the respondents’ department who retired on 30.06.2018. Then on 28.02.2024, all of a sudden the impugned order was issued from the office of respondent no.3 for recovery of an amount of over payment of Rs.1,31,785/- from the pension of the applicant. The applicant has challenged the same in this O.A.

3. Heard learned counsel for the parties.

4. Submission of learned counsel for the applicant is that the impugned recovery order has been passed after about six years of the retirement of the applicant without giving any prior show cause notice or opportunity of hearing to her. It is argued that the applicant never misrepresented before the office of the respondents in respect of any over payment whereas the office of respondents itself calculated and prepared the entire documents with regard to the post retiral benefits as well as determination of her pension. Thus, it is argued that the recovery order is against the principle of natural justice and also in violation of the judgement of the Hon’ble Apex Court in the case of State of Punjab & Ors vs Rafiq Masih (White Washer) [AIR 2015 SUPREME COURT 696] decided on 18.12.2014 and in the case of Thomas Daniel vs. State of Kerala & Ors (Civil Appeal No.7115 of 2010) decided on 02.05.2022.

5. Learned counsel for the respondents submitted that the applicant was granted 3rd MACP w.e.f. 01.09.2008 without completing 30 years of qualifying service and her pay was wrongly fixed as Rs.24,840/- due to which an excess payment of Rs.2,25,157/- was made to the applicant which was adjusted from difference of Leave encashment and DCRG as per rule 15(4)(b) of Railway Services Pension Rules 1993 and thereafter, vide letter dated 28.02.2024, the respondents advised the pension disbursing bank to recover the balance amount of Rs.1,31,785/- from the applicant.

Therefore, the recovery order has been passed as per the rules to recover the excess payment made to the applicant.

6. I have considered the rival submissions of learned counsel for the parties and perused the entire documents on record including the written submission filed by Shri Ashish Kumar Srivastava, learned counsel for the respondents.

7. In the case of State of Punjab & Ors vs Rafiq Masih (White Washer) [AIR 2015 SUPREME COURT 696] decided on

18.12.2014, the Hon’ble Apex Court has held as under:-

12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Re