Abdul Gaffar vs Union Of India & Ors.

Mohan Pyare, Member (A)

(i) Shri Vinod Kumar Jaiswal, learned counsel for the applicant and Shri K.K. Ojha and Shri Manoj Kumar Srivastava, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“ (i) Issued a writ order or direction to the respondents to pay the entire deducted amount of pension to the applicant and continue to pay the full pension to the applicant.

(ii) Issue any other relief to the applicant which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of this case.

(iv) Award the cost of the application to the applicant.”

The brief facts of the case are that the applicant was Train Driver and superannuation on 30.11.1988. He was getting pension till May, 2018 but in the month of June 2018, the Respondent No.2 deducted 50% of his pension (Annexure-A-1). The applicant met respondent No.2 regarding deduction of his pension and respondent No.2 replied that on the direction of respondent No.1 the pension amount has been deducted. He sent a representation dated 07.09.2018 and wanted to know the details and reasons for recovery. In response to R.T.I. query, the respondent No.2 replied that he has been paid excess pension (Rs. 11,54,409/-) and that’s why recovery of Rs.9,842/- per month is being made from his pension. The applicant further represented by a letter dated 04.03.2019 to respondent No.1. In reply to above representation the respondent No.1 informed that no instructions have been issued from his office regarding recovery of Rs.12 Lakhs (Annexure-5). The operating portion of the letter is reproduced below :-

The respondent No.2 has deducted from pension of the applicant without any direction from respondent No.1 which is violative of Article 14 of the Constitution. The applicant is entitled for 20% additional pension after attaining the age of 80 years, 30% on the attainment of age of 85 years and 40% after attainment on 90 years.

In their counter reply, the respondent No.1 and 2 have submitted that PPO No. 19887040700059 dated 18.02.2019 was issued in favour of the applicant and no letter for deduction of Rs. 12 Lakhs was ever issued to the Bank from the Railway Department. On completion of 80, 85, and 90 years of age, the additional pension 20%, 30% and 40% is payable to pensioner. It is further submitted that the relief sought by the applicant from Respondent No.1 and 2 is liable to be rejected.

In their counter reply, the respondent No.3 has submitted that the applicant is being paid pension through respondent Bank, the procedure for payment of pension is that the Bank received PPO from Railways and its copy to the applicant. The Bank makes the calculation and ensures disbursement of the same to the concerned retired employ. Due to the omission in Bank’s computerized system, amount of pension payable to the pensioner was wrongly calculated Rs.10531 in place of correct amount of Rs.6750/- payable to the applicant and accordingly Rs.11,54,409/-was paid to the applicant from 01.06.2006 to June 2018. As soon as the above omission was detected, the excess amount is being detected @ Rs.9842/- from the applicant as per the R.B.I. Guideline. The amount taken by the applicant in his OA as well as affidavit are frivolous and misconceived and not tenable in the eyes of law, hence the present OA is liable to be dismissed.

Heard learned counsel for the parties and perused the material available on record.

Learned counsel for respondent No.3 has submitted the R.B.I. Circular dated 13.03.2015 No.RBI/2014-2015/500 regarding overpayment of pension to the Government Account – Recovery of excess/wrong pension payments made to the pensioners. The operating portion of the aforesaid circular is reproduced as below :-

“ Whenever any excess payment of government pension is detected, the entire amount should be credited to the government account immediately.”

Learned counsel for respondent No.3 has submitted the R.B.I. Circular dated 17.03.2016 No.RBI/2015-2016/340. The operating portion of the aforesaid circular is reproduced as below :-

“ As soon as the excess/wrong payment made to a pensioner comes to the notice of the paying branch, the branch should adjust the same against the amount standing to the credit of the pensioner’s account to the extent possible including lumpsum arrears payment.”

Learned counsel for respondent No.3 has submitted the R.B.I. Master Circular dated 01.04.2021 No.RBI/2021-2022/08. The operating portion of the aforesaid circular is reproduced as below :-

“Whenever any excess/overpayment is detected the entire amount thereof should be credited to the Government account in lump sum immediately when the excess/overpayment is due to an error on the part of the agency bank. This action is independent of recovery from the pensioner. Agency banks are requested to seek guidance from respective Pension Sanctioning Authorities regarding the process to be followed for recovery of excess pension paid to the pensioners, if any.”

The applicant has submitted the judgment of Hon’ble Supreme Court reported in AIR 2015 SC 696 in the case of State of Punjab and ors. etc. Vs. Rafiq Masih (White Washer) etc. in Civil Appeal No.11527 of 2014 decided on 18.12.2014. The operative portion of the aforesaid judgment is reproduced below :-

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) Recovery in cases where an employee has 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.

We are informed by the learned counsel representing the appellant- State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery), shall be deemed to have been upheld, for the reasons recorded above.

The applicant has also submitted the judgment of Hon’ble Supreme Court in the case of Thomas Daniel Vs. State of Kerala & ors. In Civil Appeal No.7115 of 2010 decided on 02.05.2022. The operative portion of the aforesaid judgment is below :-

“It is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.

(15) Having regard to the above, we are of the view that an attempt to recover the said increments after passage of ten years of his retirement is unjustified.”

Based on the above two High Court and Supreme Court orders it is very clear that the applicant has not fraudulently obtained excess pension (even it has been credited to the account of the petitioner). The so-called excess credit has come due to the mistake of the Bank and the applicant is covered from the above two judgments as he is class C/D employee and retired long back (1988), hence, the OA is allowed. The respondents should make refund of the recovery from the applicant with 6% interest till the date of payment. No order as to costs.