Central Administrative Tribunal - Chandigarh
Bhagwan Devi vs M/O Defence on 27 May, 2024
1- O.A. No. 060/171/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/171/2021
Pronounced on:27.05.2024
Reserved on: 08.05.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Bhagwan Devi, Widow of late Shri Gajendra Singh (having Personal No,
M 363643, working with Garrison Engineer Chandigarh), Aged about 65
Years, Resident of Village Malgadi. Post Office Badiyar, District Tehri
Garhwal Uttarakhand-249161. Group C
....Applicant
(By Advocate: Mr. Aditya Narayan for Mr. Rahul Sharma)
Versus
1. Military Engineer Services, Garrison Engineer, 'N' Area Old Airport
Road, Chandigarh through the Executive Engineer.
2. State Bank of India, CPPC, 3rd floor, SBI Building, Chandni Chowk,
Delhi through its Chief Manager-110006.
3. The Manager, State Bank of India, Bidyar, District Tehri Garhwal,
Uttrakhand - 249161.
4. Union of India, Department of Defence, R. No. 206 E, E Block, New
Delhi - 110011 through its Secretary.
... .Respondents
(By Advocate: Mr. Sanjay Goyal, Sr. CGSC for R-1 and 4
Mr. Akshay Jain, for R-2 and 3)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
2- O.A. No. 060/171/2021
(a) To direct the respondents to reimburse the amount of Rs 2,56,000/- along with interest 18% per annum, which has been illegally deducted from applicant's saving bank account no 32161384597 with the State Bank Of India, Bidyar, District Tehri Garwal on 21.01.2020,
(b) To quash the reply dated 23.10.2020, Annexure A-5, given by the respondent-bank.
2. The factual matrix of the case is that the husband of the applicant, Late Sh. Gajendra Singh was working with Respondent No 1 having personal no MES-363643. After his retirement, he had been granted pension vide order dated 22.05.2012. He expired on 18.12.2019. Thereafter, the applicant started getting family pension. On 21.01.2020, the amount of Rs. 2,56,000/- was debited from the account of the applicant as per account statement (Annexure A-1), without any notice or intimation. Vide letter dated 05.02.2020 (Annexure A-2), it was informed by the Respondent No. 3 to the applicant through his son that there was some overpayment made to regular pension and the recovery of Rs.8,40,933/- created out of which Rs.2,56,000/- has been effected and the branch is advised for remaining recovery of balance of Rs.5,84,933/-. The applicant served a legal notice dated 12.10.2020 (Annexure A-3) to which respondent no. 1 replied that it has not passed any kind of recovery order and the same has been done by the bank only. The respondent bank also replied to the notice vide letter dated 23.10.2020 (Annexure A-5) stating that it had made excess payment to applicant's husband late Sh. Gajendra Singh, therefore, the recovery is effected.
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3. The contention of the applicant is the impugned recovery is illegal in view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab & Ors Vs. Rafiq Masih (White Washer), 2015 (4) SCC 334.
4. The responents no. 1 and 4 have filed short reply stating therein that neither any order of respondents no. 1 and 4 has been challenged in the present O.A., nor any relief has been claimed against the answering respondents. Therefore, the O.A. deserves to be dismissed qua respondents no. 1 and 4.
5. By filing additional affidavit, the respondents no. 1 and 4, contrary to its earlier stand in Annexure A-4 dated 04.12.2020 that they have neither initiated any case for recovery of family pension of applicant to PCDA (Pension) Allahabad nor to pensioner paying bank, defended the action of the State Bank of India i.e. Respondents No. 2 and 3 in effecting the recovery of excess payment made to the pensioner. It has been stated that the respondents no. 2 and 3 have effected recovery as per para 11 of the RBI Master circular dated 01.07.2015 (Annexure R-1). Reliance has been placed upon judgment of the Hon'ble Supreme Court in the case of High Court of Punjab and Haryana & Others Vs. Jagdev Singh (C.A. No. 3500/2006 decided on 29.07.2016) and a decision of Jodhpur Bench of this Tribunal in the case of Umed Raj Singhvi Vs. U.O.I. & Others (O.A. No. 290/00305/2015 decided on 05.04.2016)
6. The respondents no. 2 and 3 filed reply contesting the claim of the applicant. It has been stated therein that the pension of the husband of the applicant commenced with effect from 01.09.2012 and 4- O.A. No. 060/171/2021 he died on 08.12.2019, pursuant to which the applicant applied for the family pension. The Pension Disbursing Agency (SBI) i.e. the answering respondents, while calculating the last drawn pay, noticed that the pensioner was paid an excess payment of Rs.8,30,694/-during the period from 01.09.2012 to 30.11.2019. The reason for excess payment was subsequent receipt of new PPO No.403201202758 (suffix 199) dated 30.10.2018 vide which the basic pension of the husband of the applicant was recalculated at Rs.16,650/- commencing from 01.01.2016, which previously was made at Rs.26,908/-. The Pension Disbursing Agency (SBI), as per the rules/practice, wrote a letter dated 04.01.2019 to Principal Controller Defence Account (Pension), Allahabad for confirmation. It was, thereafter, the pension was reduced to Rs.16,650/- and account statement was prepared. In this premise, it was noticed by the Pension Disbursing Agency (SBI) that an amount of Rs.8,30,694/- has been paid in excess to the husband of the applicant, which was sought to be recovered by the Pension Disbursing Agency (SBI). Therefore, they started the recovery of overpaid amount as per para 11 of RBI Master Circular dated 01.07.2015 (Annexure R-2/1).
7. It has been further submitted that the petitioner submitted an 'undertaking dated 19.12.2019 (Annexure R-2/3) at the time of commencement of payment of family pension, thereby authorising the Pension Disbursing Agency (SBI) to recover the excess payment of pension from his/her future pension payments and/or his/her any account maintained by the Pension Disbursing Agency and therefore, the recovery is permissible in view of the law laid down by the Supreme Court on this issue, in High Court of Punjab & Haryana Vs. Jagdev 5- O.A. No. 060/171/2021 Singh, (2016)14 SCC 267, holding Rafiq Masih's case, (2015)4 SCC 334, to be inapplicable. Relaince has been placed upon the judgment of the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012) 8 SCC 417.
8. I have gone through the pleadings, perused the material placed on record and considered the rival contentions of learned counsel for both sides.
9. The undisputed facts of the case are that the applicant's husband had been getting pension after his superannuation w.e.f. 01.09.2012 till his death on 18.12.2019. Thereafter, his widow i.e. the applicant herein started getting family pension. First time, vide letter dated 05.02.2020 the applicant was informed by the respondent Bank that due to some overpayment made to regular pension, a recovery of Rs.8,40,933/- has been created and out of which Rs.2,56,000/- has been deducted and the Branch is advised to effect the balance recovery of Rs.5,84,933/-
10. The argument of the applicant is that no show cause notice has been issued before effecting recovery, therefore, the impugned recovery is in violation of principles of natural justice. No reason, whatsoever, has been given by the respondents as to why they did not afford any opportunity to the applicant to show cause against the impugned recovery. Moreover, from a bare perusal of the order dated 05.02.2020 (Annexure A-2), it is noticed that the no details of over payment, reasons thereof or the period for which over payment was made, nothing has been explained in the said letter while informing the applicant about the huge recovery of Rs.8,40,933/-. And before giving the information about the excess payment, a recovery of Rs.2,56,000/-
6- O.A. No. 060/171/2021 had also been effected. I am of the opinion that the letter dated 05.02.2020 (Annexure A-2) is not in consistent with the instructions issued by the RBI vide its Circular dated 17.03.2016 which requires that the pensioner may also be advised about the details of over payment/wrong payment and mode of its recovery. The instruction (E) of O.M. dated 16.05.2018 stipulates as under:-
"The pensioner may also be advised about the details of over payment/wrong payment and mode of its recovery."
However, the letter dated 05.02.2020 (Annexure A-2) lacks all the important details about the excess payment, recovery and mode thereof, therefore, it cannot be allowed to sustain. The aforementioned instructions dated 17.03.2016 issued by the RBI in consultation with office of the CGA, Ministry of Finance, Department of Expenditure regarding recovery of excess payment made to the pensioners have been noticed by the Government of India while issuing O.M. dated 16.05.2018 in this regard (Annexure R-2/2) and the same has been placed on record by the respondents.
11. Secondly, though the respondents no. 1 and 4 have pleaded that they have no role to play in the excess payment and impugned recovery, but it is the case of the respondents no. 2 and 3 that they acted pursuant to the instructions issued by the PCDA (Pension). It has been averred by respondent no. 2 and 3 that they received a PPO dated 30.10.2018 vide which the basic pension of the husband of the applicant was recalculated at Rs.16,650/- commencing from 01.01.2016, which previously was made at Rs.26,908/-. After receipt of this letter, the respondent Bank got confirmed about the revised payment by writing a 7- O.A. No. 060/171/2021 letter dated 04.01.2019 to the PCDA (Pension) Allahabad and thereafter the pension was reduced to Rs.16,650/-. Neither the revised PPO dated 30.10.2018 nor the letter dated 04.01.2019 has been placed before me to ascertain as to who was responsible for wrong calculation/fixation leading to excess payment which could not be noticed during the life time of the applicant's husband. Even these material/documents were not supplied to the applicant in reply to the legal notice given by the applicant. Be it the fault of SBI or the employer department or the PCDA (Allahabad) Pension, the fact remains that neither the applicant nor the applicant's husband has any fault at all in wrong calculation or fixation of basic pension. Therefore, I am constrained to hold that the poor widow (senior citizen) of the deceased Group 'C' employee cannot be forced to pay the amount paid in excess to her husband during his life time, due to the fault of the respondents no. 2 and 3. The law settled in the case of Rafiq Masih (supra) is fully applicable in the peculiar facts of the present case which was delivered in favour of the poor pensioners against the recovery for excess payment made to them due to wrong fixation/calculation of pay/pension. The deceased pensioner had never mis-represented to the respondents for the excess payment credited to his account during his life time. Therefore, the action of the respondents effecting recovery from the family pension of the applicant is unjust and illegal. The applicant herein being a poor widow of the deceased Group 'C' employee getting meagre family pension deserves the benefit of the judgment rendered by the Hon'ble Supreme Court in the case of Rafiq Masih (supra).
8- O.A. No. 060/171/2021
12. From the perusal of records /Annexure A-5, which is the reply of the respondent no. 2 to the legal notice, it is noticed that the stand of Respondent no. 2 is self contradictory. On one side, the respondent no. 2 stated that in the matter of payment of pension, the role of bank is like an agent, who is bound to comply with the instructions of Pension Sanctioning Authority(PSA), though the PSA has not issued any instructions to respondent no. 2 and on the other side it is stated that they calculated the pension on the asking of PCDA, Allahabad. If I accept the version of respondents no. 2 and 3, then I find that they had failed in disbursing the exact amount of pension to the deceased employee during his life time for the period from 2012 to 2019 and thereafter, also failed to defend the recovery case before this Tribunal without producing the relevant documents on the records.
13. In the case of S.S. Chaudhary Vs. State of H.P. & Others (CWP No. 3145/2019 decided on 24.03.2022), the observations given by the Hon'ble High Court of Himachal Pradesh in relevant paras have been extracted as under:-
"12. It would be evident from the various judgments delivered by the Hon'ble Supreme Court from time to time that the facts and circumstances of every case have to be examined and appreciated on their own merit to discern whether the re- fixation and recovery in question was warranted or justified. Exceptional circumstances that call for complete justice must be taken note of while deciding the fate of the action initiated.
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9- O.A. No. 060/171/2021
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21. Accordingly, we are of the considered view that the observations made in in para 11 of the Jagdev Singh's case (supra) must be confined to Class-I/Group-A and Class-II/Group-
B Officers. Therefore, we are inclined to uphold that despite undertaking given by Class-III/Group-C and Class-IV/Group-D employee, recovery cannot be effected solely on the strength of Jagdev Singh's case.
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27. In Yogeshwar Prasad and Ors. vs. National Institute of Education Planning and Administration and Ors (2010) 14 SCC 323, the Hon'ble Supreme Court has opined that recovery should not be resorted to unless it was a case of misrepresentation or fraud by the employee concerned. The observations of the Hon'ble Supreme Court in the case of Col. B.J. Akkara (supra), were extracted to the effect that the restraint placed on recovery has its basis on the exercise of judicial discretion to relieve the employees from such hardship as will be caused by the recovery and not for the reason that the court believes that the employees have any vested right to the amounts that they have been paid in excess. Thus, the sine qua non for such recovery is the hardship caused to the employee and no other reason."
10- O.A. No. 060/171/2021
14. In view of the above, the action of the respondent no. 2 and 3 in effecting recovery from the bank account of the applicant for the excess payment made to her deceased husband is declared illegal. Even, no principle of natural justice has been followed by the respondent no. 3. The impugned order dated 05.02.2020 (Annexure A-2) is hereby quashed and set aside. The Original Application is allowed. The respondents are directed to refund the amount already recovered from the applicant amounting to Rs.2,56,000/- within a period of two month from the date of receipt of a certified copy of this order. No costs.
(SURESH KUMAR BATRA) MEMBER (J) 'mw'