Hon'ble Manoj Misra,J.
1. We have heard Shri Prabhakar Singh, learned counsel appearing for the petitioners.
2. The Union of India, through the General Manager, East Central Railway, is aggrieved by the judgment of the Central Administrative Tribunal, Allahabad dated 30.8.2011 in Original Application No. 869 of 2010 (Uma Kant Pandey vs. Union of India and others), in which the Tribunal has found that the excess amount directed to be recovered from the applicant's pay is in violation of the principles of law laid down by the Supreme Court in Shyam Babu Verma vs. Union of India and others (1994) 4 SCC 521; Shahib Ram vs. State of Haryana 1995 Supp (1) SCC 18 and Col (Retd.) B.J. Akkara vs. the Government of India and others 2006 (11) SCC 709.
3. The claimant-respondent no. 1 filed the Original Application alleging that the department had erroneously fixed his pay at the time of calculating the benefits under the Assured Career Promotion Scheme. The error was not on account of any misrepresentation, fraud or collusion and thus the excess amount could not be recovered from him.
4. The Tribunal did not accept the defence taken by the petitioner-respondents, that the mistake had occurred at the time of fixation of pay on the recommendations of the 6th Central Pay Commission, and thus the undertaking given by the applicant as a condition of revision of pay in accordance with the recommendation of the 6th Central Pay Commission, that any amount erroneously paid can be recovered, would not bind him. The Tribunal found that the error had actually occurred at the time of fixation of pay on the grant of benefit under the Assured Career Promotion Scheme.
5. In paragraph-11 of the judgment, the Tribunal has observed as follows:-
"11. From perusal of contents of the counter reply, it is evident from para-5 that pay of the applicant under financial upgradation, was wrongly fixed due to clerical mistake. Hence, it is an admitted fact that mistake was committed at the time of granting benefit of financial upgradation under the ACP Scheme. It is an undisputed fact that the Sixth C.P.C. was made applicable w.e.f. 01.01.2006, and according to the respondents excess payment was paid to the applicant w.e.f. 31.7.2007 to 31.3.2010. The undertaking submitted by the applicant at the time of fixation of salary was effective regarding mistake in fixation as a consequence of sixth C.P.C. but, this undertaking shall not be considered effective at the time of granting financial upgradation under the ACP Scheme. Hence, the case of the applicant is covered under the judgment of the Hon'ble Apex Court. Firstly, I have decided above that there was a mistake in wrong fixation of salary of the applicant at the time of granting the financial upgradation under the ACP Scheme, and secondly, the respondents alleged that they are entitled to recover the entire excess amount paid to the applicant, in view of undertaking furnished by the applicant. But I have decided that this undertaking will be effective only in case mistake has been committed by the respondents in fixing applicant's salary as a consequence of implementation of sixth C.P.C. but as is evident from the facts of the case that mistake was not committed as a consequence of implementation of sixth C.P.C. but the mistake was committed at the time of granting the financial upgradation under the ACP scheme hence, in my opinion, that undertaking filed by the respondents, during fixation of salary of the applicant in consequence of sixth C.P.C., will not be of not help to the respondents. Under these circumstances, and in view of the law laid down by the Hon'ble Supreme Court in the cases cited above, I am of the view that excess amount already paid to the applicant, cannot be recovered from him."
6. Learned counsel appearing for the petitioners submits that the undertaking was applicable even to the grant of benefit under the Assured Career Promotion Scheme, and further that under Para-1013.B of the Indian Railway Establishment Manual Volume I Revised Edition, 1989, the over-payments made to the applicant could be recovered from him. Para 1013.B of the Indian Railway Establishment Manual Volume I Revised Edition, 1989 is quoted as below:-
"1013-B. Recoveries of Overpayment - All personal claims will normally be checked finally within one year of the date of payment, and if within this period an amount is discovered to have been paid erroneously through an oversight in the Accounts Office and not due to wrong interpretation of a rule or order it will ordinarily be recovered. When the amount so deducted can, without hardship to the party concerned, be recovered from a current bill, the recovery will be made by the Accounts Officer from such bill. If, however, the amount discovered to have been erroneously paid cannot be met from the amount payable in the current bill or is so large as compared with the person's pay that its recovery is, in the opinion of the Financial Advisor and Chief Accounts Officer, likely to cause hardship to the railway servant concerned, the amount will be held under objection and the drawing officer requested to take steps to recover the amount from the next bill or to obtain the sanction of the Head of the Department, Deputy Head of the Department, Divisional Railway Manager, Deputy Chief Mechanical Engineer or Works Manager in independent charge of workshops, as the case may be, to the recovery being made in a suitable number of instalments.
Note : Overpayment made to an employee on account of excess leave granted due to irregular postings in the leave accounts should be recovered from him/her in cash or excess leave allowed in the past, set off with the consent of the employee against future credits of leave earned. The amount excess paid to the staff in such circumstances should not be written off in any case."
7. The petitioners have not denied in the pleading, that the error in wrong fixation had not occurred at the time of revision of pay in pursuance to the recommendations of the 6th Pay Commission, but at the time of grant of benefit under the Assured Career Promotion Scheme. The undertaking annexed to the Writ Petition does not bear the date to verify that it will also extend to the fixation of pay on the ground of higher pay scale on the promotion of the applicant-respondent under the Assured Career Promotion Scheme.
8. Under Para 1013.B of the Indian Railway Establishment Manual, the Railways is authorised to recover the over-payments provided the claim is checked as a normal rule, within one year of the date of payment. Even if such mistake is detected, which may have happened erroneously or through an oversight, the Railway is required to find out whether the amount so deducted can be recovered without hardship to any party concerned, from his current bills.
9. We are of the opinion that the Rule in Para 1013.B of IREM is in consonance with the principles of law evolved by the Supreme Court, on equity and which have been explained in paragraphs 57 and 58 of the judgment in Syed Abdul Qadir and others vs. State of Bihar and others (2009) 3 SCC 475 as follows:-
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99."
10. The Supreme Court further explained the principle in paragraph-9 of the judgment in Registrar, Cooperative Societies, Haryana and others vs. Israil Khan and others (2010) 1 SCC 440, which reads as follows:-
"What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment."
11. For the aforesaid reasons, we do not find that the Tribunal has committed any mistake either on fact or in law in allowing the claim petition.
12. The writ petition is dismissed with observations that order of the Tribunal will not prejudice the rights of the petitioners to place the applicant in the correct pay scale to which he was entitled. The directions of Tribunal will be applicable only to the recoveries of the excess payment.
Order Date :- 24.1.2012 RKP