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Judgment
Present case depicts the pathetic tale of an 80 year old war veteran who has been compelled to knock the door of the courts time and again due to various acts of commission and omission by the Respondents.
The applicant who joined the Indian Army on 26.01.1964 was released from service on completion of 51 years of age after 26 years of qualifying service on 30.11.1989. During this period he sustained air burst shell injury in his left shoulder.
At the time of his release he was subjected to Release Medical Board which assessed his disability @ 30% for life. Since the legitimate dues were not paid to him, he filed CWP (C) before Honble Delhi High Court in 1998 wherein he was A, granted war disability element of pension @ z450/- per month instead of 225/- per month w.e.f. the date of retirement. On filing LPA he was also granted 10,000/- as compensation.
Subsequently, OA number 139 of 2009 was filed and Respondents were ordered to correct war injury pension of the petitioner along with 12% interest.
Later on, in view of the judgment passed by Hon'ble Supreme Court in Union of India &Ors. versus Ram Avtar (Civil Appeal No. 418 of 2012) decided on 10.12.2014, he filed OA number 662 of 2014 whereby the war injury disability percentage was broad banded from 30% to 50%.
Subsequent thereto, he filed OA number 119 of 2014 challenging certain recoveries made by the Respondents from his pension and he sought refund of the same along with compensation. Compensation of र15,000/- was awarded to him.
Present OA has been filed by him challenging the recoveries of र61,796/- and र129/- per month from his pension on the ground that same is against the verdict of Hon'ble Supreme Court in (Civil Appeal No. 11527/2014) State of Punjab &Ors. versus Rafiq Masih etc. and the payment of compensation amount of र15,000/- which was not paid despite awarded in O.A. no. 119/2014.
Respondent no. 1 in the counter affidavit has submitted that:
(i) e-PPO no. 131198900342 with suffix 0199 is a suomoto generated PPO and if any PPO is issued manually, then details of the same may not be reflected.At present, there is no software available with the Respondents to reflect PPO no. M/D1S//003076/2014. However, as and when the same becomes available the Respondents office will issue accordingly.
(ii) Disability pension was granted through manual PPO which is not updated in the master, hence, it was not mentioned in PPO no. 131198900342. However, for such cases, in order to avoid inconvenience to the pensioner, note no. 6 of e-PPO contains clear direction that 'in case of Disability Element or war injury element has been earlier notified but the same has not been revised in this PPO, the amount may continue to be paid and such cases may be referred to this office'.
(iii) As regards the basic pension mentioned in the PPO it was submitted that as per OROP circular No. 555 dated 04.02.2016 Lt. Col. (TS) with 26 years of service is entitled for basic pension of र32,813/- per month w.e.f. 01.07.2014 and accordingly the basic pension reflected in the PPO of the applicant is र84,330/- as on 01.01.2016.
(iv) Fixation of pensioner's pension from 01.07.2014 र33,225 by bank is wrong as this rate of pension is applicable for pensioners having 26.5-27 years of qualifying service.
(v) Recovery of र129/- per month from the pension of the applicant is effected as commutation amount credited in the account of the applicant by bank.
Respondent no. 2 (State Bank of India) in its reply submitted that:
(i) Recovery of र129/- per month is on account of commutation amount of 24,459/- received on 11.07.2014 by the applicant in his account no. 10829630233. This amount is deducted per month because aforesaid commutation amount was deposited in the account of the applicant on his request to the bank. This amount will be deducted per month from his pension from 11.07.2014 + 15 years.
(ii) Prior to receipt of PPO no. 131198900342 by the State Bank of India, CPPC, Chandni Chowk, Delhi, the bank was disbursing pension to the applicant by calculating his qualifying service as 28 years but in the month of May 2019, this error was rectified after receipt of PPO no. 131198900342 and the applicant started getting his pension as per his qualifying service as 26 years. Basic pension as on July 2014 should have been र32,813/- per month as per his qualifying service 26 years but due to human/typographical error he was receiving 33,225/- as per qualifying service of 28 years. After May 2019 the applicant has started getting his basic pension as per his qualifying service as 26 years.
(iii) This fact was very much within the knowledge of the applicant and he never objected to the same. It was only when State Bank of India, CPPC, Delhi came across this error in computing qualifying service of the applicant as 28 years instead of 26 years they started the process of recovery of T61,796/- from the pension of the applicant to which the applicant objected.
(iv) The order passed by Honible Supreme Court in Rafiq Masih's case is applicable where the employer has sought recoveries against his employee. Whereas in the present case State Bank of India is not the employer rather it is the pension disbursing Agency.Hence, the recoveries made by State Bank of India is in compliance to the letter of undertaking obtained by State Bank of India, CPPC, Delhi and in accordance with RBI circular dated 17.03.2016.
(v) Even the war injury element also required rectification and recovery of T40,424/- was calculated and this recovery was effected after intimating the applicant.
(vi) As regards, compensation of 15,000/- is concerned, it is submitted that it is to be paid by Respondent no. 1 as bank was not a party to those proceedings. It is submitted that direction given by the bank is not illegal or arbitrary; hence, OA is liable to be dismissed.
Applicant filed rejoinder to the reply filed by Respondent no. 1 and 2 wherein it was denied that the applicant requested the bank to deposit any commutation amount in 2014 in his account. The applicant retired w.e.f. 01.12.1989 and his authorized commutation amount was fully recovered on completion of prescribed 15 years i.e., in December 2004. It has not been explained as to why and on what authority the bank made alleged fresh commutation on 11.01.2014, 25 years after applicant's retirement.
It was further submitted that neither the Respondent No. 1 has sent any fresh PPO nor the bank informed the applicant that he was being paid pension on the basis of 28 years qualifying service before refixing his pension.
The undertaking cited by the respondents is invalid/obsolete and has no merit. Any recovery due to wrong fixation would cause extreme hardship to the applicant.
We have heard applicant in person, Shri Ashok Chaitanya, Advocate for Respondent no. 1 and Shri S P Sehrawat, Advocate for Respondent no. 2 and have perused the record.
It is urged by the applicant that action of the respondents in recovery of 61,796/- and deduction of fl29/- per month from his pension is patently illegal in view of the judgment passed by Hon'ble Supreme Court in Rafiq Masih's case (Supra).
He further submitted that it is alleged by Respondent no. 2 that a sum of र129/- per month is being deducted from his pension on account of commutation amount, however, the commutation amount was fully recovered on completion of 15 years, thereafter, he never requested the bank for any fresh commutation for which the alleged deduction is being made. Under the circumstances, it is submitted that respondents be directed not to deduct any amount from his pension and refund the amount so recovered.
Shri Ashok Chaitanya, Advocate for Respondent no. 1 submitted that so far as, Respondent no. 1 is concerned, no direction has been given to the bank to make any recovery or deduction from the pension of the applicant.
Shri S. P. Sehrawat, Advocate for Respondent no. 2, however, submitted that there is no recovery of 129/- from the pension of the applicant, in fact, it is a deduction on account of commutation amount of र24,459/- received on 11.07.2014 by the applicant and, therefore, deduction is being made.
So far as, recovery of र61,796/-, same is done because there was a miscalculation regarding the number of years of service rendered by the applicant. He was being paid pension on the basis of 28 years of service whereas he had rendered only 26 years of service and, therefore, when this fact came to the knowledge of the bank the recovery has started.
Counsel further submitted that the judgment rendered in Rafiq Masih is not applicable to the bank as bank is not the employer and the guidelines in Rafiq Masih's case were pertaining to the employer. As such, it is submitted that there is no illegality in the recovery/deduction which warrants interference.
We have bestowed our considerable thoughts to the respective submissions of learned counsel for the parties and peruse the material on record.
Bunch of appeals were filed before Hon'ble Supreme Court in Rafiq Masih's case. The issue involved before Hon'ble Supreme Court in this case related to receiptof excess payment made to private respondents in excess of their entitlement. The benefits flowed to them, consequent upon a mistake committed by the concerned competent authority, in determining emoluments payable to them. In certain cases, the mistake might have occurred on account of variety of reasons including the grant of a status, which the concerned employee was not entitled to or payment of salary in a higher scale, then in consonance of the right of the concerned employee or because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay scale or for having granted allowances for which the concerned employees were not authorised.The respondents in that case were beneficiary of a mistake committed by the employer, and on account of the said unintentional mistake, employees were in receipt of monetary benefit,beyond their dues.
Another important factor was that the employees were not guilty of furnishing any incorrect information, which had led the concerned competent authority, to commit the mistake of making the higher payment to the employees. The payment of higher dues to the private respondents in those cases was not on account of any misrepresentation made by them nor was it on account of any fraud committed by them.
Order of recovery of excess amount was made and, therefore, the same was challenged. After considering various earlier judgments passed by Hon'ble Supreme Court, in Para 12 of the judgment Hon'ble Supreme Court summarised few situations where recoveries by the employers would be impermissible in law. Same is reproduced as under:
"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."
Coming to the factual matrix of the case, Respondent no. 2 has started the process of recovery of 61,796/- from the pension of the applicant primarily on the ground that prior to receipt of PPO no. 131198900342 by the State Bank of India, CPPC, Chandni Chowk, Delhi the bank was disbursing pension to the applicant by calculating his qualifying service as 28 years but in the month of May 2019, this error was rectified after the receipt of PPO no. 131198900342 and the applicant started getting his pension as per his qualifying service as 26 years.
According to Respondent no. 2, as per his qualifying service of 26 years basic pension as on July 2014, should have been 32,813/- per month but due to typographical error he was receiving 33,225/- as per qualifying service 28 years. The only plea taken by Respondent no. 2 is that this fact was within the knowledge of the applicant, however, he never objected. Moreover, the bank is not the employer of the applicant and, therefore, this judgment is not binding on the bank. The recovery is being affected as per undertaking given by the applicant and RBI guidelines.
It is undisputed case of the parties that the applicant retired from service on 30.11.1989 after rendering 26 years of qualifying service. Since then he was getting pension. It is admitted by Respondent no. 2 in the counter affidavit that "feeding qualifying service as 28 years instead of 26 years was just an error committed in printing/ typing a material during a printing/ typing process. This term includes error due to mechanical failure or slip of the hand or figure." There was a typographical error in the PPO. In the earlier PPO wherein, his qualifying service was shown as 28 years, however, after the receipt of PPO no. 131198900342 it was revealed that his qualifying service is 26 years and, therefore, according to them applicant was getting more pension that what for which he was eligible.
It is not the case of the respondents that the applicant was in any way guilty of furnishing any incorrect information or made any misrepresentation or it was on account of any fraud played by him. If typographical error had occurred on the part of either Respondent no. 1 or Respondent no. 2, in view of the judgment passed by Hon'ble Supreme Court in Rafiq Masih's case, since the excess payment has been made for a period in excess of 5 years before the order of recovery is issued, therefore, the recovery is impermissible in law.
It is highly unfair on the part of the Respondent no. 2 to allege that since applicant is not their employee, therefore, they are not bound by this judgment. Respondent no. 2 is the Pension Disbursing Authority and is acting as per the PPO issued by Respondent no. I. If there is any mistake in calculating the number of years of qualifying service of the applicant by either of the respondent, the applicant cannot be held responsible for the same. In this regard, it would be apt to quote the observations of Hon'ble Supreme Court in Rafiq Masih's case:
"First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. Allarbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee."
Reverting to the case in hand, the applicant had served the Nation for 26 years, also sustained airburst shell injury in his left shoulder and seriously injured on the battlefield in Jammu 86 Kashmir in Kalidhar sector while fighting on the front with his unit against Pakistani Troops and is now, more than 80 years of age. If he is compelled to bear the financial burden of refund of payment received wrongfully for a long span of time due to mistake committed by the concerned authority and not because of any fault of his own, more particularly, when he is primarily dependant on the pension if such recovery after several years is allowed, same would be extremely iniquitous and not just and proper.
As such, the recovery of 61,796/- from the pension of the applicant is set aside. If any amount has been recovered from his pension, same be refunded to him within 45 days.
As regards, deduction of fl 29/- per month on the ground of commutation amount of र24,459/- is concerned, according to Respondent no. 2 this amount was received by the applicant and is being deducted on his request, however, this fact has been denied by the applicant in the rejoinder that any such request was made by him. As per record, original pension of 2,475/- was granted in 1989 with commutation amount of t1,064/-. This pension was revised in 2013 to र2,775/- and, therefore, commutation amount was increased to t1,193/-. As per Annexure B-1, a sum of र24,459/- was deposited in the account of the applicant in the year 2014. The difference in the commutation amount of t129/- per month is being deducted from the pension of the applicant. This cannot be termed as recovery of any excess payment. There was no need on the part of the applicant to give any consent for the same because upon revision of pension, commutation amount increased and was suo-moto credited in the account of the applicant by the Bank. Therefore, this deduction is valid. It is not the case of either of the parties that the Bank has recovered the difference of र129/- from the arrears of pension from 1989 to 2013 through due drown statement.
The applicant was awarded a sum of t15,000/- as compensation while deciding OA No. 119 of 2014 on 13.08.2018. The applicant has placed on record the copy of the letter vide which he requested the respondents to pay the said amount, however, it is his case that said compensation has not been paid to him till date. This compensation amount was to be paid by Respondent no. 1 who was the respondent in that OA. In their counter affidavit absolutely no averment has been made by Respondent no. 1 as to why this amount of compensation was not paid to the applicant till date.
This is a very shocking state of affair that for compliance of every order the applicant has to knock the door of the court.
Respondent no. 1 is directed to pay the said compensation amount of र15,000/- to the applicant within a period of 4 weeks from the date of receipt of the order, failing which, said amount be recovered from the salary of the defaulting official and be paid to applicant.
The applicant has also pointed out certain discrepancies in the PPO, Respondent no. 1 is directed to rectify the same and issue fresh corrigendum PPO to the applicant with copy to Respondent no. 2 within a period of 4 weeks.
With these directions, the OA is partly allowed and is disposed off accordingly. Pending MAs if any, also stand disposed off.
Pronounced in the open court on 5th day of April, 2022.