Delhi High Court
Indira Dey vs Union Of India And Ors on 24 September, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th September, 2015.
+ W.P.(C) 6644/2015, CM No.12129/2015 (for stay) & CM
No19375/2015 (for amendment of petition and filing additional
documents)
INDIRA DEY ..... Petitioner
Through: Mr. Raghav Shankar with Mr. V.
Siddharth & Ms. Sonakshi Malhan,
Advs.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Rakesh Kumar, Adv. for R-1.
Mr. Himanshu Dubey, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the action of the respondent No.1 Union of
India (UOI) of stopping the pension under Swatantrata Sainik Samman
Pension (SSSP) Scheme, 1980 to the petitioner and also seeking to recover
back a sum of Rs.7,11,270/- alleged to have been wrongly paid as SSSP to
the petitioner and of which amount, a sum of Rs.3,60,000/- was recovered in
lumpsum from the pension account of the petitioner with the respondent
No.2 Bank of India, Green Park, New Delhi and the balance sum is being
recovered by deduction at the rate of Rs.15,000/- per month from the
Service Pension (IPS) of about Rs.25,000/- per month being received by the
W.P.(C) No.6644/2015 Page 1 of 11
petitioner on account of her husband‟s service as an Indian Police Service
(IPS) officer with the respondent No.1 UOI.
2. Notice of the petition was issued though no interim stay as sought,
granted. The counsel for the respondent No.1 UOI states that a counter
affidavit was filed in the Registry but the same was returned under
objection. The counsel for the respondent No.1 UOI has been permitted to
handover the said counter affidavit in the Court and the same is taken on
record. The counsel for the petitioner states that there is no need to file
rejoinder to the said counter affidavit. The counsel for the respondent No.2
Bank states that the respondent No.2 Bank has been acting as per the
instructions of the respondent No.1 UOI and thus there is no need to file a
separate counter affidavit. The counsels have been heard.
3. The position which emerges is that the husband of the petitioner viz.
Sh. Shanti Nath Dey was since August, 1980 being awarded the SSSP under
the Scheme which had then been floated by the respondent No.1 UOI. He
continued to receive the said pension till his death on 27 th October, 1989 and
whereafter the petitioner as his widow started receiving the said pension till
payment thereof was stopped in April-May, 2014.
4. The respondent No.1 UOI served a notice dated 30th January, 2015 on
W.P.(C) No.6644/2015 Page 2 of 11
the petitioner asking the petitioner to show cause as to why the amount
already drawn by her under the SSSP Scheme be not recovered from her,
because as per the revised Policy Guidelines dated 6th August, 2014, a
dependent pension is not sanctioned to a spouse of a freedom fighter if the
spouse had been receiving pension on account of previous employment of
the deceased freedom fighter and stating that since the petitioner was also
receiving the Service Pension (IPS), she was not entitled for SSSP.
5. The petitioner replied to the said show cause notice.
6. The respondent No.1, vide letter dated 26th February, 2015 stopped
the payment of SSSP to the petitioner and directed recovery of excess
amount received by the petitioner reasoning,
"(i) That as per the Ministry‟s letter dated 13th October, 2000
"regarding dependent family pension under the SSSP Scheme
to the widows of the deceased freedom fighter pensioners", the
claimant to pension has to fulfil that he / she does not have any
independent means of livelihood, and,
(ii) That since the petitioner had been also drawing Service Pension
(IPS) of her husband, she is not entitled to the pension under
the said scheme."
W.P.(C) No.6644/2015 Page 3 of 11
7. The petitioner was vide letter dated 13th March, 2015 of respondent
No.2 Bank informed of Rs.3,60,000/- out of her account having already been
remitted to respondent No.1 and the balance of the total excess payment to
the petitioner of Rs.7,11,270/- being recovered as aforesaid and impugning
which this petition is filed.
8. The counsel for the petitioner has contended:
(a) That the show cause notice was with reference to the revised
policy guidelines dated 6th August, 2014 and on the basis
thereof the pension paid earlier could not have been recovered
back and the petitioner could at best be disentitled from
receiving the said SSSP with effect from 6th August, 2014 only
and which in any case has been stopped with effect from April,
2014.
(b) That the decision pursuant to the show cause notice is however
based on a Ministry‟s letter dated 13th October, 2000 which did
not form part of the show cause notice.
(c) That even if the Ministry‟s letter dated 13th October, 2000 is to
be read, the same is for adoption "in all future cases" and
cannot have application to the petitioner who was since 1989
W.P.(C) No.6644/2015 Page 4 of 11
already receiving pension.
(d) That action on the basis of Ministry‟s letter dated 13th October,
2000 could not have been taken in the year 2014.
9. Per contra, the counsel for the respondent No.1 has contended that
since the petitioner with effect from 13th October, 2000 is not entitled to
pension, there is no error in the decision to recover back the amount,
erroneously paid to her and to which she was not entitled.
10. The counsel for the petitioner, in rejoinder, has confined the challenge
in this petition to the action of respondent No.1 of recovering back
Rs.7,11,270/- from the petitioner.
11. I have considered the material on record and the rival contentions.
12. I have enquired from the counsel for the respondent No.1 UOI,
whether there is any plea or allegation of any fraud, deceit or
misrepresentation having been practiced by the petitioner in drawing the
pension after 13th October, 2000 and to which now it is stated that she was
not eligible.
13. The counsel for the respondent No.1 UOI has fairly stated that no
such plea has been taken.
14. I have next enquired from the counsel for the respondent No.1 UOI,
W.P.(C) No.6644/2015 Page 5 of 11
whether any communication of the Ministry‟s letter dated 13th October, 2000
or of what is contained therein was sent to the petitioner and / or whether
any public notices were published informing the dependents / recipients of
the said pension of the change in policy.
15. The counsel has again fairly stated that there is nothing on record to
suggest the same. He however states that the copy of the said letter was sent
to the Reserve Bank of India with direction to send it to all the banks who
were disbursing pension, for compliance therewith. He further states that it
was the respondent No.2 Bank who was disbursing the SSSP as well as the
Service Pension (IPS) to the petitioner and the respondent No.1 UOI could
not have been in the know of the petitioner receiving the Service Pension
(IPS) also.
16. It therefore transpires that the petitioner, till April, 2014, cannot be
said to be aware of having become disentitled with effect from 13th October,
2000 to the SSSP. I have wondered whether without intimating the
petitioner so and without any fault on the part of the petitioner, the
respondent No.1 could recover back the payment in the nature of pension
paid to the petitioner, according to them erroneously, and for reasons
attributable to them only.
W.P.(C) No.6644/2015 Page 6 of 11
17. The counsel for the respondent No.1 UOI in this regard has drawn my
attention to the guidelines dated 6th August, 2014 to which reference was
made in the show cause notice also and which impose obligation on the
banks to recover back the pension paid to any pensioner which was not due.
18. However the fact remains that there was no direction to the banks as
on 13th October, 2000 and the direction came only with effect from 6th
August, 2014.
19. I am of the view that the payments in the nature of pension which
have an element of subsistence, are such which once paid cannot be
recovered back in the manner being done i.e. in a lumpsum and thereafter by
deducting a major chunk of Rs.15,000/- out of the Service Pension (IPS) of
Rs.25,000/- per month payable to the petitioner especially when there is no
knowledge least fault attributed to the petitioner for drawing the amount
which it is now alleged she was not entitled to draw.
20. The Supreme Court in Col. (Retd.) B.J. Akkara Vs. Govt. of India
(2006) 11 SCC 709 held that it has consistently granted relief against
recovery of excess wrong payment of emoluments / allowances from an
employee, if the following conditions are fulfilled:
(a) the excess payment was not made on account of any
W.P.(C) No.6644/2015 Page 7 of 11
misrepresentation or fraud on the part of the employee;
(b) such excess payment was made by the employer by applying a
wrong principle for calculating the pay / allowance or on the basis of
a particular interpretation of a rule / order, which is subsequently
found to be erroneous.
It was further held that such relief, restraining recovery back of
excess payment, is granted by Courts, not because of any right in the
employees, but in equity, in exercise of judicial discretion, to relieve
the employees from the hardship that will be caused, if recovery is
implemented. It was reasoned that an employee would spend
whatsoever emoluments he receives for the upkeep of his family and
if receives an excess payment for a long time, would spent it
genuinely believing that he is entitled to it. Any subsequent action to
recover the excess payment will cause undue hardship to him. It was
yet further held that on the same principles, pensioners can also seek a
direction that wrong payments should not be recovered, as pensioners
are in a more disadvantageous position, when compared to in-service
employees and any attempt to recover excess wrong payment would
cause undue hardship to them. The argument that the excess payment
W.P.(C) No.6644/2015 Page 8 of 11
made should be allowed to be recovered in easy instalments also did
not find favour. In fact, the payments made under orders of the Court
were also not directed to be refunded for the reason of the confusion
on account of the earlier interpretation by the employer itself.
21. The same principles were reiterated subsequently also by a three
Judges Bench in Syed Abdul Qadir Vs. State of Bihar (2009) 3 SCC 475.
22. Notice in this regard may also be taken of D.S. Nakara Vs. Union of
India (1983) 1 SCC 305 laying down that payment of pension is a social
welfare measure rendering socio-economic justice to those who in the hey-
day of their life ceaselessly toiled for the employer (in this case, for those
who fought for the freedom of the country) and thus the provisions with
respect thereto should be interpreted accordingly.
23. Not only so, I also find that all that was prescribed in the Ministry‟s
letter dated 13th October, 2000 was that for being eligible to draw SSSP, it
had to be certified that the dependent did not have any independent means of
livelihood. I have in this regard, enquired from the counsel for the
respondent No.1 as to what was the criteria to assess / determine
"independent means of livelihood"; whether the dependent receiving a
meagre amount from another source could be deprived of the SSSP for the
W.P.(C) No.6644/2015 Page 9 of 11
reason of receiving such meagre amount.
24. The counsel for the respondent No.1 states that no criteria, at that
stage, of independent means of livelihood was provided.
25. The counsel for the petitioner in this regard has drawn attention to the
Circular dated 6th August, 2014 which has clarified that recipients of service
pension would be considered as having independent means of livelihood and
the criteria inter alia of income of more than Rs.20,000/- per month was to
be considered as disentitling to the SSSP.
26. From the aforesaid, it is clear that in the year 2000, there was
ambiguity as to what was to be treated as an independent means of
livelihood. It was not provided in the terms of the Ministry‟s letter dated
13th October, 2000 that the dependent recipients of the SSSP should not be
receiving service pension or service pension in excess of any prescribed
amount. For the reason of the said ambiguity also and which has been
clarified vide Policy Guidelines issued only on 6th August, 2014, it is felt
that the respondents cannot recover back the amount already paid as pension
from the petitioner.
27. The counsel for the petitioner on his part has stated that the petitioner
will not be making any claim for receipt of SSSP in future.
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28. Accordingly, this petition is partly allowed. The respondents are
directed to, within 45 days hereof, refund to the petitioner all the amounts
recovered from her bank account / deducted from her Service Pension (IPS)
in pursuance to the decision dated 26th February, 2015 / 13th March, 2015
and to immediately stop making any deductions from the service pension
(IPS) or any other monies of the petitioner. If the amounts are not so
refunded within 45 days, the same will then attract interest at the rate of 9%
per annum from the date of realization and till the date of refund.
No costs.
RAJIV SAHAI ENDLAW, J.
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