SURJYA KALITA vs N.F.RAILWAY on 29 September 2026

ORDER

PER: RAJINDER SINGH DOGRA, JUDICIAL MEMBER: This application has been preferred to seek the following relief: “i) To set aside and quash the impugned order vide letter No. Z/VIG/289/03/02/2024 dated 04.07.2024 issued by the respondent No.5 (Annexure-A/11;

(ii) To set aside and quash the impugned order vide letter No. Ietters (Misc.)/Con/Estt/2024-25 dated 26.07.2004 issued by the respondent No.4 (Annexure-A/12);

(iii) To set aside and quash the impugned Office Order No. 129/2024 issued by the respondent No.2 (Annexure-1);

iv) To set aside and quash the impugned order vide letter dated 24.12.2024 issued by the respondent No.2 withholding DCRG of the applicant Rs.21,10,482/- (Annexure-A/17);

(v) To direct the respondent authorities to pay the DCRG Rs.21,10,482/- of the applicant with penal interest @ 18% from the date of retirement till payment;

2. Applicant joined the Railway service on 25.04.1989 as PWM/Grade-III under the Rangiya Division of N.F. Railway and superannuated from service on 31.07.2024. He is aggrieved with the impugned letter dated 04.07.2024 whereby the respondent No. 5 issued a letter to the respondent No. 6 to recover the TA/arrear TA of Rs.4,78,046/- for the period of January, 2017 to August, 2017

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along with conveyance allowance Rs.31,200/- for the period of Nov'22 to March'23 i.e. total Rs.5,18,246 from the last wages/final settlement dues of the applicant (Annexure-M 11).

He is also aggrieved with the impugned Order No.179/2024 dated 01.08.2024 cancelling the 2nd MACP benefits w.e.f. 18.04.2009 and fixed the same w.e.f. 01.09.2018 and directed to recover the said MACP benefits from the final settlement of the applicant. As a result of the impugned orders, the DCRG of the applicant Rs.21,10,482/- was withheld (Annexure-A/17).

3. Learned counsel for the applicant submits that respondents have alleged that the applicant has drawn TA/Arr TA through regular salary bill to the tune of Rs.487046/- w.e.f Jan'17 to Aug'17 without obtaining vetting of the TA journal from associate accounts and even without countersignature of the competent authority on the body of the TA journal. Further, it has also been alleged that the applicant has drawn Rs.31,200/- as conveyance hire through regular salary bill w.e.f Nov’22 to March’23 without

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supporting documents and even without any claim for the same resulting irregular payment/over payment to the tune of Rs.5,18,246/-. Accordingly, the respondent No.5 vide letter dated 04.07.2024 directed the respondent No.6 to recover the said irregular/over payment to the tune of Rs.5,18,246/- from the last wages final settlement of the applicant who was scheduled for retirement on 31.07.2024.

3.1. According to applicant, during the tenure of his service, he never submitted any false TA Bills to the Department. He worked at various sites of construction projects including the Haflong Section when a major landslide occurred in recent year. Due to the nature of duty, he had to move from one site to another and worked beyond 8 km of his station. Therefore, he prepared the TA Bill and submitted the same to the Account Section of the Agartala Office of N.F Railway and the bills were credited. He was not at all aware as to whether the TA Bills were vetted and countersigned by the competent authority. Vetting of the TA Bills is the responsibility of the account

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section and the same cannot be attributed to the fault of the applicant.

4. Sri M. A. Islam further submits that applicant was granted financial upgradation in Level-9 with effect from 16.05.2020 vide the aforesaid order dated 29.04.2024, but the said order was not implemented and the applicant was superannuated from service in pay Level-8. Contrastingly, the similarly situated employees of the applicant namely Razekul Haque who joined in the service as JE/Gr. III with the applicant under the Rangiya Division vide the common appointment Order dated 15.05.1990, was granted financial upgradation in Pay Level-9 with effect from 02.06.2020 vide Order dated 03.02.2022 issued by the DRM(P)/N.F. Railway, Rangiya.

5. Respondents have filed their reply wherein they have stated that, applicant was appointed as Appr. PWM (1400- 2300) on 19-04-89 and regularized on 16.05.90. He was given two (02) promotions (merged) as JE/II/P-way on 26.05.98 (5000-8000) & as JE/I on 01.11.2003 (5500-9000). Thereafter, he has got two (02) financial up-gradation under MACP

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Scheme. One (2nd) MACP was granted with GP-4600/-+ Scale-9300-34800/- (Level-7) w.e.f. 01.09.2008 & 3rd MACP with GP-4800/- Level-8 w.e.f. 18.04.2009, but 3rd MACP should have been w.e.f 01.09.2018 instead of 18.04.09 after completion of 10yrs. from 01.09.2008 (from 2nd MACP.) Rly. Board's Circular No. PC-V/2009/ACP/2, dated 10-06-2009 clearly mentioned that financial up-gradation under the scheme will be admissible whenever an employee has spent 10 yrs. continuously in same Grade Pay. Already Sri Kalita, was granted one level promotion as JE/II and two financial up-gradation under MACP. Therefore, no more upgradation benefit is eligible as per extant rule.

5.1. As per respondents, reference of Razkul Haque does not pertains to this office and hence no comments can be made now. However, a letter has been forwarded to DRM (P)/RNY on 15.05.2025 for clarify on what basis the up- gradation benefit was granted and including the reply of the same the MACP case of Sri Surjya Kalita, Ex.SSE/P- way/Con has been forwarded to Accounts Department for

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cross examination of the same which is under process for final remarks.

5.2. That, based on the letters issued by Executive Engineer, Const. Agartala dated-09.07.2024 & 30.07.2024 respectively to deduct irregular payment of arrear Pay & TA and other allowances of Rs. 5,18,246/- already drawn from the regular salary bills for final settlement of Sri Surja Kalita, SSE/P- WAY/Con/Agartala; the DCRG amount of Rs. 21,10,482/- is withheld due to Vigilance observation communicated vide L/No. Z/VIG/289/03/02/2024, dated-04-07-2024.

6. Learned counsel for the applicant avers that, in regard to the TA claim, subsequently, the respondent No. 6 issued a letter dated 18.10.2024 to the Sr. AFA/CON/ENGA/Estt, N.F. Railway, Maligaon and sent the TA journal of the applicant for post-facto vetting and informed that the said TA journals of the applicant were checked by the said authority and found ok by his office. Hence, they cannot withheld the DCRG on the pretext of overdrawing the TA and arrear including conveyance allowance of RS. 5,18,246/-, which is arbitrary and illegal.

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6.1. Learned counsel for the applicant vehemently argues that applicant worked for a total qualifying service of 35 years 3 months and 7 days. In view of the length of service, he was granted financial upgradation under MACP in Pay Level-8 with effect from 18.04.2009 vide Office Order No.246/2017 issued by the respondent authorities. But after his superannuation, the respondent No.2 issued the impugned Office Order No.179/2024 dated 01.08.2024 and illegally fixed the 2nd MACP benefits w.e.f. 01.09.2018 instead of 18.04.2009 and recovered the amount of the said MACP benefits paid to the applicant for the aforesaid period 18.04.2009 to 01.09.2018.

6.2. That, even assuming if there is any error in granting the said MACP w.e.f. 18.04.2009, the same was committed by the respondents and the applicant did not have any role therein. They have issued the impugned recovery order behind his back without issuing any notice and issued an order of recovery to the tune of Rs. 5,18,246 dated 30.07.2024 and withholding of DCRG Rs. 21,10,482 vide dated 24.12.2024 which is arbitrary and illegal and violated

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the guidelines laid down by the Hon’ble Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) AIR 2015 SC 696 The impugned orders deserved to be quashed and set aside.

7. We have heard the learned counsel for the applicant and learned counsel for the respondents and have gone through the pleadings and materials on records.

8. There are two issues involved in this case. First is regarding wrong fixation on grant of MACP and the other is payment of arrear pay and TA bill etc., amounting to Rs. 5,18,246/-. In the first issue, MACP was given to the applicant w.e.f. 18.04.2009, however, at a later stage, when the respondents detected the error/wrong fixation, that applicant ought to have been given MACP w.e.f. 01.09.2018 instead of 18.04.2009, they issued the impugned order dated 01.08.2024 cancelling the 2nd MACP benefits and directed to recover the said MACP benefits from his final settlement thereby withholding of Rs. 21,10,482/- from the DCRG.

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The second issue with regard to TA claim; respondents vide order dated 30.07.2024 issued an order of recovery with regard to irregular payment of TA & Contingent through regular salary bills and issued an order of recovery of Rs. 5,18,246. It can be seen from the communication dated 18.10.2024, Executive Engineer/Con/IC, N.F. Railway has written to the competent authority that the TA Bill was sent to the higher authority for post fact vetting. In the rejoinder also, the applicant has annexed a Sanction letter dated 20.102.2025 (A/1), where the TA claim of the applicant is found to be genuine and had been sent for vetting. Respondents have withheld the DCRG without any valid reason.

9. The Hon'ble Apex Court in State of Punjab Vs. Rafiq Masih (White Washer) AIR 2015 SC 696, while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law:

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“(i) Recovery from the employees belonging to Class III 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.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of 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."

10. Similar view was also taken by the Hon’ble Apex Court in the case of Thomas Daniel Vs State of Kerala & Others 2022 Live Law (SC) 438 by observing that relief against the recovery is granted not because of any right of the employees, but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered, particularly, when an employee had no role for the excess payment made to him by the employer.

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11. In the present case, he was given the benefit of MACP w.e.f. from 18.04.2009 and accordingly his pay was fixed, if there was any error in granting the said MACP, it was the fault of the department and the same cannot be attributed to the applicant after so many years and that too on the verge of his retirement and withholding of his DCRG is not permissible in law. In view of the settled position of law supra, when an employee had no role for the over payment made to him by the employer, recovery cannot be made at this stage. It is not the fault of the applicant nor did he misrepresented the fact.

12. The O.A is allowed. The impugned orders dated 04.07.2024, 26.07.2004, 24.12.2024 and 01.08.2024 (Annexure A/11/12/17 and Annexure A/1) with regard to recovery are quashed and set aside.

13. The respondents are directed to release all the dues including DCRG and admissible amount. Further, respondents are directed to pay interest at the rate of 4 per cent to the applicant for delay payment for

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deliberately withholding his DCRG, from the date of retirement till the actual date of payment. The entire exercise shall be completed within a period of 03 months from the date of receipt of certified copy of this order.

14. Pending M.A, if any, also stands disposed of. No costs.

(MALLIKA ARYA) (RAJINDER SINGH DOGRA)

MEMBER (A)

MEMBER (J)

SS Digitally signed by NENGDEILHEN SINGSIT