Ms. Richa Pandey, Ms. Neha Yadav, Advocates with Mr. Ashish Kumar, Legal Officer v. RANDHIR SINGH RETD. SSE/ HORT

Judgment

1. By the following order dated 19 January 2018, issued by the Divisional Personnel Officer, Northern Railway, the pay of the respondent, who was serving as Senior Section Engineer, and was due to retire 12 days thereafter on 31 January 2018 was downwardly refixed with effect from 27 December 2007: “Northern Railway L.No-726-E/16/1396/P-4 DRM Office Dated: 19.01.18 ADEN/Hort/NDLS New Delhi Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.02.2025 20:47:00 WP(C) 1301/2025 Sub: - Revised pay flxation of Sh. Randhir Singh S/o Sh. Surta Singh SSE/Hort/DKZ retiring on 31.1.18 Ref: - DFM/NDLSL. No DFM/DII/Pension/MISC dt 17.1.18 Sh. Randhir Singh S/o Sh. Surta Singh SSE/Hort/DKZ retiring on 31.1.18. His pay was wrongly fixed w.e.f 27.12.07 after making the necessary rectification his pay is being revised in the following manner: Grade From Pay Earlier Drawn (₹) 14930 Pay now revised (₹) 14930

01.07.07 9300- 34800+4200 9300- 34800+4600 As per 7th CPC

27.12.07. 16690 15780

01.07.08 01.07.09 01.07.10 01.07.11 01.07.12 01.07.13 01.07.14 01.07.15 01.01.16

01.07.16 01.07.17 17190 17710 18250 18800 19370 19960 20560 21180 55200 56900 58600 16260 16750 17260 17780 18320 18870 19440 20030 52000 53600 55200 Please make the necessary recovery under advised to Settlement Section P-13 directly. Sd/- For. Divl. Personal Officer New Delhi”

2. It is an acknowledged position that no show cause notice was issued to the respondent prior to the issuance of the aforesaid order.

3. Aggrieved by the aforesaid order, the moved Central Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.02.2025 20:47:00 WP(C) 1301/2025 Administrative Tribunal1 by way of OA 4691/20182.

4. The Tribunal has, by judgment dated 11 September 2024, under challenge herein, allowed the OA and has quashed the decision to refix the respondent’s pay as well as to effect recovery from him.

Aggrieved by the said decision, the Railways have approached this Court by means of the present writ petition.

6. We have heard Mr. Sushil Kumar Pandey, learned Senior Panel Counsel for the petitioner.

8. In our view, the judgment of the Tribunal is unexceptionable. There can be no downward refixation of pay of a government servant without notice to him, even if it is by way of correction of an error which had occurred in the past. This position is no longer res integra. The Supreme Court has, in Bhagwan Shukla v UOI3, exposited the law thus: “3. We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at ₹ 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to ₹ 181 p.m. from ₹ 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, 1 “the Tribunal” hereinafter 2 Randhir Singh v UOI 3 (1994) 6 SCC 154 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.02.2025 20:47:00 WP(C) 1301/2025 been a flagrant violation of the 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 (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25-7-1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17-9-1993 as well as the order (memorandum) impugned before the Tribunal dated 25-7-1991 reducing the basic pay of the appellant from Rs 190 to Rs 181 w.e.f. 18-12-1970.” (Emphasis supplied)

9. Moreover, in the present case, the error that was being sought to be corrected was of 11 years’ vintage. If the petitioner had continued with the error for 11 years, the least that was expected was a notice to the respondent before the error was corrected and his pay was downwardly refixed.

10. We, therefore do not find any cause to interfere with the judgment of the Tribunal in so far as it sets aside the petitioner’s decision to refix the respondent’s pay.

11. On the aspect of recovery, the case is squarely covered by para 18 of the judgment of the Supreme Court in State of Punjab v Rafiq Masih4, specifically clauses (ii) and (iii) thereof. Para 18 of Rafiq Masih reads: “18. 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 Signature Not Verified 4 (2015) 4 SCC 334 Digitally Signed By:AJIT KUMAR Signing Date:06.02.2025 20:47:00 WP(C) 1301/2025 of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: Recovery from the employees belonging to Class III (i) and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. in cases where an employee has (iv) Recovery wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” Thomas Daniel v. State of Kerala5 and Jagdish Prasad Singh v. State of Bihar6 reiterate Jagdish Singh.

12. Clause (ii), in para 18 of Rafiq Masih, proscribes recovery from persons who have less than a year left to retire. Admittedly, the petitioner was due to retire within 12 days after the passing of the order of recovery. The only caveat to the applicability of clause (ii) in para 18 of Rafiq Masih is to be found in paras 9 and 11 of High Court of Punjab & Haryana v Jagdev Singh7, which read: