Samay Singh Sandhya vs Chairman Delhi Development Authority And Ors

The applicant Sh. Samay Singh Sandhya retired on 31.08.2009 as Assistant Director (Horticulture) Group "B" from respondent no.1. The Pension Payment Order (PPO) was issued but subsequently, his pension was wrongly re-fixed by respondent no. 3-Central Bank of India, which resulted in over payment of Rs.11,43,270/-. Respondent no. 1 vide letter no. F.2(177) 2005/PPO-4715/AO(P)I/6615 dated 06.04.2018 directed respondent no. 3 to recover the over payment. Respondent no. 3 vide letter dated 26.06.2018, indicating the over payment was Rs.11,43,270/-and started recovery of Rs.15,057/- from the pensioner"s Saving Bank Account in 79 monthly instalments. The two orders of recovery dated 06.04.2018 and 26.06.2018 have been challenged by the applicant who has stated that it is no fault of his that over payment has been made and he is covered by the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) in Civil Appeal No. 11527/2014 decided on 18.12.2014. The respondent no. 1 has stated that loss has been caused to him on account of negligence of respondent no. 3 by doing over payment. Accordingly, Deputy CAO (Pension), DDA of respondent no.1 organisation has asked respondent no. 3 to recover the amount from the applicant only from DA but respondent no. 3 has recovered it on the basis of undertaking given by the applicant to them.

Respondent no. 3 has emphasised that accordingly deductions/recovery of total excess amount paid has been correctly done since they were authorised by the respondent no. 1 vide letter dated 06.04.2018. They have stated that the applicant had given an undertaking that he will be liable for return of the amount, if any excessively received.

Heard Mr. J. S. Mann, learned counsel for applicant and Mr. Manjeet Singh Reen for respondent no. 1, Mr. Satish Kumar for respondent no. 2 and Mr. Anuj Jain with Mr. S. K. Tiwary for respondent no. 3.

Admittedly, there was an over payment of Rs.11,43,270/-. Respondent no. 3 has filed the undertaking given by the applicant dated 07.02.2006 (Annexure R/3) by which he has authorised respondent no. 3 to recover any excess amount by debiting amount or any other deposits belonging to him in the possession of the Bank. The said undertaking reads as under :-

"Reg : Payment of Pension under P.P.O. No. 4715 of Samai Singh dated ________________through your Br. In consideration of your having at my request agreed to make payment of pension due to me every month by crediting to my account with you, I, the undersigned, agree and undertake to refund or make good any amount to which I am not entitled or any amount which may be credited to my account in excess of the amount to which I am or would be entitled. I further hereby undertake and agree to bind myself and my heirs, successors, assignees, executors and administrators to indemnify, the bank from and against any loss suffered or incurred by the bank in so crediting my pension to my account under the scheme and to forthwith pay the same to the bank and also irrevocably authorized the bank to recover the amount due by debiting my said account or any other deposits belonging to me in the possession of the bank."

The applicant has relied on the case of Rafiq Masih (supra) wherein the Hon"ble High Court has carved out certain situation of hardships wherein recoveries should not be done, which are as follows :-

"12. 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."

However, counsel for respondent no. 3 has relied on the ruling given by the Hon"ble Supreme Court in the case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh in Civil Appeal No. 3500/2006, decided on 29.07.2016. The operative part of the said order reads as under :-

"11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.

For these reasons, the judgment if High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years."

It is claimed by respondent no. 3 that since in this case an undertaking had been given by the applicant he would be covered by the case of Jagdev Singh and the respondents can legally proceed for recovery against the applicant.

Respondent no. 1 cited judgment of the Jodhpur Bench of this Tribunal in Umed Raj Singhvi Vs. Union of India & Ors. (O.A No. 290/00305/2015 decided on 05.04.2016) wherein this Tribunal held that in the case of over payment a Bank can only recover over payment made and no interest as there is no fault on the part of the applicant and even then only in long instalments as the fault is fully on the Bank"s side.

In case of Surinder Pal Singh Vs. Union of India& Ors., (O.A No. 060/00561/2014 decided on 17.04.2015) wherein Coordinate Bench of this Tribunal allowed recovery of excess payment which had been made to the applicant as a result of re-fixation of pension, which is exactly similar to the present O.A. The relevant part of the order reads as under :-

"16. We are concerned with the excess payment of public money which is often described as "Tax payers money" which belongs neither to the officers who have effected over payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Questions to be asked is whether excess money has been paid on not may be due to a bona fide mistake possibility effecting excess payment of public money by Government Officers may be due to various reasons like negligence, carelessness, corruption, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount pay/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situation law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."

However, taking a sympathetic view of the matter and keeping in view the fact that the applicant is now around 70 years of age and he is getting pension of around Rs.18000/-per month the Bank should restrict the monthly deduction from the pension to an amount of Rs.2000/- only so that this recovery does not amount to an intolerable burden on the pensioner."

In the present O.A, the issues are exactly similar to the above case and are squarely covered. Further, since an undertaking has been given by the applicant to respondent no. 3, the ruling of the Supreme Court in the case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh will apply. The current matter is not covered by the judgment in the case of Rafiq Masih (supra).

I am of the view that in the light of the discussion above, recovery can be done by the respondents. As far as the quantum of the recovery is concerned, it should be in instalments, based on the paying capacity of the applicant and the amount to be recovered. As per the statement filed by respondent no. 3 at Annexure-1 the pension due to the applicant on 28.02.2018 was Rs.32,286/-. They are recovering as per respondent no. 3 order dated 26.06.2018 an amount of Rs.15,057/- which means that the total excess payment will be recovered in almost 6½ years. Deduction of almost half pension for overpayment is certainly excessive. Respondent no. 3 is directed to reduce and rework the monthly instalments such as the recovery is affected over a period of 10 years. No interest will be charged by the respondents on the overpaid amount.

With the above directions the O.A is disposed of. No order as to costs.