Central Administrative Tribunal - Delhi
Rajinder Rathi vs M/O Defence on 10 October, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.3483 of 2016
Orders reserved on : 05.10.2018
Orders pronounced on : 10.10.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Smt. Rajinder Rathi, aged 70 years
w/o late Lt. Col., D.C. Rathi,
No.NCC/PC/12368
r/o : Flat No.605, Mass Society,
Plot No.24, Sec.10, Dwarka, New Delhi-110075.
....Applicant
(By Advocate : Shri Satyavan Kudalwal for Shri Randhir Singh
Kalkal)
VERSUS
1. Union of India
Ministry of Defence,
Through its Secretary,
South Block, New Delhi.
2. Director General NCC,
Govt. of India, Ministry of Defence,
West-Block-IV, R.K. Puram, New Delhi.
3. PCDA (P)
Droupadi Ghat, Allahabad, UP-211014.
.....Respondents
(By Advocate : Shri Vidya Sagar for Shri H.K. Gangwani)
ORDER
By filing this OA, the applicant is seeking the following reliefs:-
"(a) to Quash the letter dated 27.6.2016;
(b) Further Issuance of A order or Direction Directing the respondent to stop the recovery of any further amount from the pension account No.1610000400038441 of the applicant, further the respondent may kindly be directed to refund the amount of Rs.23,534/-, Rs.3,30,000/- Rs.10,000/-, and Rs.10,000/- which was recovered from the pension account of the applicant.2
(c) issue such further appropriate order/direction as this Hon‟ble Court may be deem fit and proper in facts and circumstances of the case."
2. Brief fact of the case are that the applicant‟s husband was retired from service on 1.11.1993 and he was granted pension for his service rendered by him in the NCC for the rank of Lt. Colonel. The husband of the applicant had received PPO No.C/MISC/CORR/108/2014 vide which pension of applicant‟s husband was revised as per 6th CPC.
2.1 The husband of the applicant unfortunately expired on 31.3.2016. After the death of her husband the applicant was granted family pension by the respondents being legally wedded wife. Suddenly, on 3.6.2016, the respondent had recovered Rs.23,534/- from the pension account of the applicant without any intimation to the applicant. On 28.6.2016, another amount of Rs.3,30,000/- has also been recovered from the account of the applicant by the respondent bank without any intimation to the applicant.
2.2 On 30.7.2016, an amount of Rs.10,000/- has also been recovered from the monthly pension of the applicant by the respondents and no explanation has been given to the applicant by the respondents.
2.3 The applicant sent a legal notice dated 2.8.2016 through her counsel for refund of the amount recovered and not to recover further amount from the pension of the applicant and placed reliance on the judgment of the Hon‟ble Supreme Court in the case 3 of State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. in Civil Appeal No.11527 of 2014 decided on 18.12.2014.
2.4 When no response received on her aforesaid legal notice, the applicant sent reminder through her counsel dated 23.8.2016 to the respondents.
2.5 The letter dated 23.8.2016 was received by the applicant in response to her legal notice from the PNB, Vikaspuri, New Delhi informing that "with reference to the above we may inform that recovery of pension is being affected as per CDA (Pension) Allahabad, letter dated 27.6.2016 regarding which the pensioner has been duly informed on 29.7.2006. However, applicant stated that no such document has been supplied to her prior to recovery of the amount from the pension account of a family pension holder.
2.6 On 15.9.2016, applicant filed Writ Petition (Civil) No.8515/2016 before the Hon‟ble Delhi High Court, which was dismissed by the High Court vide Order dated 26.9.2016 with liberty to file fresh before this Tribunal as the husband of the applicant was retired from NCC and this Tribunal has jurisdiction to decide the case. Hence, the present OA.
3. Pursuant to notice issued to the respondents, they filed their reply in which they stated that the cadre of Whole Time Officers (in short „WTO‟) created in 1963 to provide employment and rehabilitation to officers who were commissioned as Emergency 4 Commissioned Officers in the Army after their release so that they are suitably employed. The sanction for grant of NCC Commission was issued under Govt. of India letter dated 21.12.1963. The Emergency Commission Officers released from Army were provided suitable employment but their pay and allowances were never at par or equivalent to regular officers of the Armed Forces of the Union.
3.1 The Officers when appointed in NCC were called as NCC Commissioned Whole time Officer. However, they are not officer of Regular Army. Accordingly, husband of the applicant appointed as NCC Commissioned WTO under Section 13 of NCC Act, 1948 read with provision (iii) of Rule 16 of NCC Rules, 1948. Since the cadre was in a very nascent stage, the terms and conditions of service of WTOs were further modified vide Govt. of India letter dated 23.5.1980 vide which it was clarified that WTOs shall be junior to the regular Officers of the same Rank and will serve under them. It was also provided that Officers will be governed by CCS (Pension) Rules, 1972. The officers of WTO cadre were to perform duties as per the NCC Act 1948 and Rules made thereunder. 3.2 According to Section 10 of the NCC Act, 1948, these Officers (WTOs) were not liable for active military service, but subject thereto any such person shall be liable to perform such duties and discharge such obligations as may be prescribed. No person subject to the said Act shall by virtue of being a member of the crops be liable for active military service but subject thereto any 5 such person shall be liable to perform such duties and discharge such obligations as may be prescribed.
3.3 The duties, which are to be performed by the husband of the applicant after his appointment in NCC as WTO, have been prescribed in Rule 25 of the NCC Rules, 1948. As per terms and conditions of service, apart from other issues, the pensions of these officers were to be governed by CCS (Pension) Rules, 1972. The WTOs for the purpose of pension are included in category of „Defence Civilian‟ for their pension entitlements and they are not entitled to similar or same pension as admissible to Officer subject to Army Act. These types of pensioners are issued PPOs notified in "C" series.
3.4 After the acceptance of the 6th CPC‟s report by the Govt., detailed instructions were issued vide Govt. of India letter dated 11.11.2008 for the Armed Forces Pensioners only and this policy letter was not applicable for defence civilian pensioners. For the defence civilian pensioners‟ category PCDA (P) Allahabad issued circular dated 17.9.2008 giving out the instructions for the implementation of 6th CPC report for defence civilian pensioners (para 3.1 of the said circular lays down the instructions contained in the circular are applicable to the NCC WTOs). 3.5 The Govt. of India after acceptance of the 6th CPC‟s report further issued instructions that Officers of the rank of Lt. Colonel and equivalent ranks in the Armed Forces to be included in PB-IV (i.e. in the grade of Rs.37400 - Rs.67000) with a grade pay of Rs.8000/- only those officers who are holding combat or ready to 6 combat jobs. This pay scale was only exclusive for the Officers' in the rank of Lt. Col. Of Armed Forces and was not applicable to NCC WTOs.
3.4 To implement the above mentioned decision for Armed Forces Pensioners, PCDA (P) issued a circular no.412 dated 26.5.2009. The important issue to be seen in this circular is that was not applicable to Defence Civilian and particularly to NCC WTOs. It appears that pension disbursing authorities could not distinguish this fact and the pension of all WTOs was erroneously fixed as if they were officers retired from Armed Forces and came in the category of Armed Forces Pensioners. Due to this flawed interpretation, all WTOs were given the pension of Lt. col. in Pay Band-IV.
3.5 It is once again submitted by the respondents that WTOs could not be granted the Pay Band-IV because of statutory stipulation contained in Sec 10 of the NCC Act and Rule 25 of NCC Rules, 1948, wherein they were never required to perform active duties or combat duties, they could not be included in Pay Band-IV and their pension fixation by the banks was illegal and void ab- initio.
3.6 When this anomaly was noticed, PDCA (Pension) immediately vide circular dated 27.1.2010 gave clarification to all the pension disbursing authorities, which reads as under:-
"In this context it is clarified that G of I, Min.of Defence letter No.17(4)/2008(I)/D (pen/policy) dated 11.11.2008, circulated under this office circular No.397 dated 18.11.2008 relates to revision of Armed Forcs No. 7 17(4)/2008(I)/D (pen/policy) dated 21.05.2009, circulated under our circular No.412 dated 26.5.2009 is an amendment to letter of 11.11.2008 referred above, which is not applicable to NCC officers and MNS (Local) granted pension under „C‟ series PPO.
Extension of benefit of MOD letter dated 21st May 2009 circulated under this office circular No.412 dated 26.5.2009 to officers of NCC/MNS (Local) by some Pension Disbursing Authorities is resulting in overpayment of pension. It is, therefore, requested that all pension paying branches/treasuries/DPDOs/PAOs letter dated 21st May 2009 to the officers of NCC/MNS (Local) whose PPOs notified under "C" series.
They may further be instructed to review the cases of officers of NCC/MNS (Local) whose PPOs are notified under "C" series and if benefit of said MOD letter have been allowed to above category of pensioners, recovery be effected immediately."
3.7 They further stated that applicant was never entitled to be placed in Pay Band-IV but was erroneously receiving enhanced pension. In order to withdraw the excess amount paid, the bank authorities were also asked to correct the anomaly. In the meantime, in order to remove all doubts and to lay down clear and precise instructions, Govt. of India vide letter dated 13.1.2014 laid down in no uncertain terms that the NCC WTOs in the rank of Lt. Col. have been placed in Pay Band-III (i.e. in the scale of Rs.15600- 39100) with corresponding grade pay of Rs.7600/- for the purpose of pensionary benefits w.e.f. 1.1.2006.
3.8 They also stated that as per the circular issued by the Reserved Bank of India dated 17.5.2016 (Annexure R-VIII), it has been stated that if excess payment has been issued then it must be recovered. As the husband of the applicant was wrongly paid even after details instructions on the subject, excess amount so paid 8 was to be recovered by Bank in accordance with the guidelines issued by Reserved Bank of India.
3.9 In support of their stand, the respondents have placed reliance on the judgment of the Hon‟ble Supreme Court in the case of High Court of Punjab and Haryana and others vs. Jagdev Singh in Civil Appeal No.3500/2006 decided on 29.7.2016. 3.10 They also stated that pensioner Smt. Rathi is entitled for revised pension @ Rs.16,611/- per month w.e.f. 1.1.2006 vide PPO No.C/1044/93 on account of 6rhCPC revision whereas he was getting pension @ Rs.26,265/- per month resulting an over- payment of pension for Rs.17.54 lakh and the pension of the pensioner was required to be revised as per Para 3.1 of the Office Circular No.57 dated 17.2.2008.
4. The respondents have also filed an affidavit along with which they have annexed a copy of undertaking given by the applicant‟s husband to the bank through which he was receiving pension (translated in English), which reads as under:-
"In consideration of your having at my request agreed to make payment of pension due to me month by credit to my account with you, I the undersigned, agree and undertake to refund or make any amount to which I was not entitled or any amount which may be credited to my account in excess amount to which I am or would be entitled. I further hereby undertake and agree to bind myself heirs, successors, executors and administrators to indemnify the bank against any loss, (not readable) incurred by the bank in so-crediting my pension to my account under the scheme and to forthwith same to the bank and also irrevocably authorize the bank to recover the amount due by debit to account or any other account/deposits belonging to me in the possession of the bank."9
5. The applicant has not filed any rejoinder.
6. This Tribunal vide Order dated 16.11.2016, granted ad interim stay by directing the respondents not to make any further deduction from the family pension of the applicant till the finalization of this OA.
7. During the course of hearing, counsel for the applicant submitted that in view of the categorical observations of the Hon‟ble Supreme Court in the case of Rafiq Masih (supra) wherein the Apex Court specifically laid down the conditions in which the recovery is impermissible, the recovery as ordered by the respondents by the impugned order is liable to be quashed and the amount, which had already been recovered, may be refunded to the applicant.
8. Counsel for the respondents submitted that as explained by the respondents in their counter affidavit, applicant was never entitled to be placed in Pay Band-IV but was erroneously receiving enhanced pension. In order to withdraw the excess amount paid, the bank authorities were also asked to correct the anomaly. In the meantime, in order to remove all doubts and to lay down clear and precise instructions, Govt. of India vide letter dated 13.1.2014 laid down in no uncertain terms that the NCC WTOs in the rank of Lt. Col. have been placed in Pay Band-III (i.e. in the scale of Rs.15600- 39100) with corresponding grade pay of Rs.7600/- for the purpose of pensionary benefits w.e.f. 1.1.2006. He further stated that action had been taken by the respondents in compliance of RBI‟s 10 letter dated 17.3.2016 on the subject of recovery of excess payments made to pensioners which provides as under:-
"We have been receiving complaints from pensioners stating that the recovery of excess/wrong pension payments are being made in a manner that is not in keeping with the extant guidelines. In this connection, the instructions contained in circular Nos. CO.DGBA (NBS) No. 44/GA.64 (11-CVL) 90/91 dated April 18, 1991 and CO.DGBA (NBS) No. 50/GA.64 (11-CVL) 90/91 dated May 6, 1991 laying down a uniform procedure in consultation with the Controller General of Accounts and various non-civil Ministries for recovery are reiterated below:
a. 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. b. If the entire amount of over payment cannot be adjusted from the account, the pensioner may be asked to pay forthwith the balance amount of over payment. c. In case the pensioner expresses his inability to pay the amount, the same may be adjusted from the future pension payments to be made to the pensioners. For recovering the over-payment made to pensioner from his future pension payment in instalments 1/3rd of net (pension + relief) payable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher installment amount.
d. If the over payment cannot be recovered from the pensioner due to his death or discontinuance of pension then action has to be taken as per the letter of undertaking given by the pensioner under the scheme. e. The pensioner may also be advised about the details of overpayment/wrong payment and mode of its recovery.
The above uniform procedure may be strictly adhered to while effecting recovery of excess/wrong pension payments made to pensioners.
2. As regards the issue of refund of excess/wrong payments to the government, banks may be guided by the guidelines laid down in our Circulars Nos. DGBA.GAD.H-
10450/45.03.001/2008-09 dated June 1, 2009 and DGBA.GAD.H.4054/45.03.001/2014-15 dated March 13, 2015 which have been incorporated in our Master Circular on disbursement of government pension by Agency Banks dated July 1, 2015."
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9. After hearing the counsel for the parties and also perusing the pleadings on record, this Court finds that it is not disputed by the applicant that revision of pension of her husband in pursuance of recommendations of 6th CPC has not been wrongly fixed. The only contention of the applicant is that in view of the judgment of the Apex Court in Rafiq Masih (supra), the alleged recovery is impermissible.
10. So far as the contention of the applicant that the said recovery is not permissible in view of the judgment of the Apex Court in Rafiq Masih (supra), in the said judgment the Apex Court held 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."
12However, the aforesaid clauses are not relevant in the facts and circumstances of the present case, as the recovery which has been done from the pensioner‟s bank account in pursuance of Circular No.144 dated 27.1.2010, which was reiterated by the respondents while issuing impugned order dated 27.6.2016 which reads as follows:-
"During Audit of pension payment scroll by the test audit tea, it has been observed by that (i) Sh. Surendra Kumar, PPO No.C/1491/1992 and (ii) Sh. D.C. Rathi, PPO No.C/1044/1993, each are being paid @ 26,265/- per month which is overpayment according to his actual entitlement.
2. The case has been examined and it was observed that as per the above quoted PPOs for the respective pensioners
(i) Sh. Surendra Kumar, PPO No.C/1491/1992 is entitled for revised pension @ Rs.16711/- only per month and (ii) Sh.
D.C. Rathi, PPO No.C/1044/1993 is entitled for revised pension @ Rs.16611/- only per month w.e.f. 01/01/2006 on account of revision of pension as per 6th CPC orders.
3. The above named pensioners thus has been paid revised pension on higher side than the entitlements. Accordingly, approximately Rs.17.36 lakhs and Rs.17.54 lakhs respectively over payment has been made in both these w.e.f. 01/01/2006.
4. It seems that pension of the above named pensioners has been revised treating pensioners of the Armed forces. The pension of the pensioners was required to be revised as per para 3.1 of this office circular no. 57 dated 17/09/2008. This office circular no.144 (letter no. AT/Tech/VI CPC/349- III) dated 27/01/2010 has also been issued for precautionary measures in the matter to prevent the overpayment of pension by PDAs.
5. Therefore, you are advised that action for recovery of overpayment may be taken as per this office circular no. 141 dated 07/12/2009 and 172 dated 02/12/2014. A due drawn statement in the matter may also be forwarded to this office for our records.
6. However, if you have any PPO/Govt. Orders under which the above named pensioners are paid revised rates of pension by your Bank, a copy of the said PPO/Govt. orders may be forwarded to this office for further examination in the case.
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7. Hence, present position of these cases may be intimated to this office to enable us to inform the test audit regarding these cases. SB A/c no. may please be obtained/extracted from scroll."
(Emphasis supplied)
11. It is further relevant to quote the provisions of Rule 70 of CCS (Pension) Rules which reads as follows "70. Revision of pension after authorization (1) Subject to the provisions of Rules 8 and 9 pension once authorized after final assessment shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently :
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years from the date of authorization of pension.
(2) For the purpose of sub-rule (1), the retired Government servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment, shall be adjusted in instalments by short payments of pension in future, in one or more instalments, as the Head of Office may direct."
12. In the case of High Court of Punjab and Haryana and others vs. Jagdev Singh in Civil Appeal No.3500/2006 decided on 29.7.2016, the Hon‟ble Apex Court held as follows:-
"9 The submission of the Respondent, which found favour with the High Court, was that a payment which has been made in excess cannot be recovered from an employee who has retired from the service of the state. This, in our view, will have no application to a situation such as the present where an undertaking was specifically furnished by the officer at the time when his pay was initially revised accepting that any payment found to have been made in 14 excess would be liable to be adjusted. While opting for the benefit of the revised pay scale, the Respondent was clearly on notice of the fact that a future re-fixation or revision may warrant an adjustment of the excess payment, if any, made.
10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc., (2015) 4 SCC 334, this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer 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." (emphasis supplied).
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.
12 For these reasons, the judgment of the 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.
13 The judgment of the High Court is accordingly set aside. The Civil Appeal shall stand allowed in the above terms. There shall be no order as to costs."
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13. From the above it becomes amply clear that in view of the judgment of the Hon‟ble Supreme Court in the case of Jagdiv Singh (Supra), the said recovery is permissible and hence, the grounds taken by the applicant have no force in law.
14. In view of the above and for the foregoing reasons, the present OA is liable to be dismissed and the same is accordingly dismissed. Accordingly, ad interim order granted by this Tribunal vide Order dated 16.11.2016 stands vacated. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/