- (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. 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. 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.
(3.) 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." 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." ;