Union of India and Others vs Chunni Lal Purohit

Having heard the learned counsel for the parties and having perused the material placed on record, we are unable to find any reason to consider interference in the just and proper order passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (''the CAT'') in OA No. 06/Jodhpur/2012. The applicant-respondent retired as Head Clerk from the office of Chief Works Manager, North Western Railway on 13.07.1988. A revised PPO was issued pursuant to implementation of 6th Pay Commission recommendations putting him in the scale of Rs. 5000-8000. Subsequently, it was sought to be alleged that the applicant had been incorrectly fixed; and while reducing the pension, consequential deduction orders were immediately issued. Admittedly, such orders for reduction and deductions were made without any notice to the applicant-respondent.

In the OA filed by the applicant-respondent, the CAT considered the law applicable to the case that if deduction was at all to be made, a notice should have been issued to the applicant and he should have been given an opportunity of being heard. The CAT, accordingly, issued the following directions:

(i) No recovery should be made of the amount already paid as per Annex. A/3.

(ii) The respondents will issue a notice and given to the applicant of being heard in case it is decided that his pension is to be reduced which should be reduced from the date of the said notice.

The CAT further proceeded to clarify its order in the following:-

The learned counsel for applicant argued that the things are required to be clarified. It is further directed that the respondents will issue a show cause notice to the applicant within 15 days of this order and thereafter the applicant will get one months time to file reply and the matter will be decided by the respondents organization at the earliest possible date. The amount of recovery till the date of notice will stand refunded. The respondent organization will refund the amount to the applicant within a period of one month.

Questioning the order aforesaid, it is sought to be contended that pension could only be claimed as of right as per the entitlement; and any error in respect of fixation will not extend any substantive right to receive erroneously enhanced pension. It is also submitted that even when the directions were issued for affording opportunity of hearing, simultaneous directions for refund of the amount already recovered is not legally sustainable. The decision of the Hon''ble Supreme Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, has been referred.

Noteworthy it is that in Chandi Prasad Uniyal (supra), the Hon''ble Supreme Court referred to the following passage from the decision in Syed Abdul Qadir and Others Vs. State of Bihar and Others,

Undoubtedly, the excess amount that has been paid to the appellants teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.

Thereafter, the Hon''ble Supreme Court pointed out that such directions were given while keeping in view the peculiar facts and circumstances of that case since the beneficiaries had retired or were on the verge of retirement. The Hon''ble Supreme Court observed: -

We may point out that in Syed Abdul Qadir case such a direction was given keeping in view of the peculiar facts and circumstances of that case since the beneficiaries had either retired or were on the verge of retirement and so as to avoid any hardship to them.

The Hon''ble Supreme Court further observed that there could be exceptional cases, but the law has not been laid down in blanket form that recovery could be made only for mis-representation or fraud in the following: -

13 We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

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. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers, may be due to various reasons like negligence, carelessness, collusion, 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 paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

The facts of the present case are that the applicant-respondent is about 85 years of age and admittedly, the orders having civil and evil consequences of reduction and recovery were made in the name of so called mistake but without any notice to the applicant. The CAT has taken an overall view of the matter and has issued befitting directions that in case the pension is to be reduced, the present petitioners will issue a notice of hearing to the applicant and take a proper decision thereafter.

In the overall analysis, on the peculiar facts and circumstances where the respondent is a retired pensioner in 85 years of age; and where reduction of, and recovery from, pension was ordered by the petitioners without notice to the pensioner, the present case directly answers to the description of an exceptional case of hardship. In the circumstances of the case, the order passed by the CAT appears to be just and proper and does not call for interference in the writ jurisdiction.

It goes without saying that the petitioners are free to take recourse to the option left open by the CAT. Subject to observations foregoing, the writ petition stands dismissed.