Gujarat High Court
Bank Of India Through Officer vs Kunjvihari Rameshchandra Dixit Since ... on 13 July, 2015
Bench: Ks Jhaveri, G.B.Shah
C/SCA/1746/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1746 of 2015
====================================
BANK OF INDIA THROUGH OFFICER....Petitioner(s)
Versus
KUNJVIHARI RAMESHCHANDRA DIXIT SINCE DECEASED THROUGH
LEAGAL HEIRS & 3....Respondent(s)
====================================
Appearance:
MR NIRAV V JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR ANKIT SHAH, ADVOCATE for the Respondent(s) No. 2 4
NOTICE SERVED for the Respondent(s) No. 1
====================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 13/07/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this petition, the petitioner - original respondent No. 4 bank has prayed for the following reliefs:
"11(A) Your Lordship may be pleased to issue a Writ of Certiorari and/or a Mandamus and/or any other order or writ quashing and setting aside the order dated 30/10/2013 passed by the Ld. Central Administrative Tribunal, Ahmedabad Bench, in Original Application No. 183/2013 (Annex. "A") & Your Lordship may also be pleased to quash & set Page 1 of 11 C/SCA/1746/2015 ORDER aside the letter dtd. 2012014 sent by respondent No.3 instructing Petitioner to send D.D. in pursuant to the order of Central Administrative Tribunal, Ahmedabad Bench (Annex. "D").
(B) Your Lordship may also be pleased to stay the Order dated 30/10/2013 passed by the Ld. Central Administrative Tribunal, Ahmedabad Bench, in Original Application No. 183/2013 & Your Lordship may also be pleased to stay the Letter 20114 sent by respondent No.3 instructing Petitioner to send D.D. (Annex. "D") by way of adinterim relief during the pendency of the Petition.
(C) Any other relief may be granted."
2. Facts of the case of the respondent No. 1 - original applicant in Original Application No. 183 of 2013 was that he was a retired member of the Income Tax Appellate Tribunal (ITAT). He was aggrieved by the inaction on the part of the respondents therein in not reckoning the upgradation of the payscales of the members in the ITAT from payscale of Rs.73007600 to Rs.7300 7800 (prerevised) at par with the members of CEGAT and retaining them in the payscale of Rs.73007600 (prerevised) vide communication dated 06/10/1999. The original applicant Page 2 of 11 C/SCA/1746/2015 ORDER had also approached the Tribunal on earlier occasion with the same grievance in Original Application No. 253 of 2012, which was disposed of by the Tribunal directing the respondents therein to take a decision on the representation filed by the applicant on 09/04/2012 with a further direction that the respondents therein shall not effect any change or reduction to the pension of the applicant till the disposal of the said representation. The respondents, in the aforesaid Original Application, considered the representation of the applicant and issued communication dated 04/04/2013. By way of Original Application No. 183 of 2013, the respondent No. 1 - original applicant had prayed for setting aside the order fixing revised pension of Rs.29,947/ minus () the pension commuted on the basis of the pay band of Rs.67,00079,000. It was further prayed to quash and set aside Pension Payment Order and Reply received in response to his representation dated 09/04/2012 and further to restrain the respondent No. 4 bank from taking any steps for implementation of the aforesaid directions. The Tribunal, in conclusion, dismissed the said Original Application and it was ordered that respondent Nos. 1 and 2 therein shall conduct a special audit in respect of the pension amounts paid to the applicant by respondent No. 4 - bank and if excess amount was found to have Page 3 of 11 C/SCA/1746/2015 ORDER been paid by respondent No. 4 - bank to the original applicant, the same was ordered to be recovered from respondent No. 4 - bank without casting any burden on the applicant. It is against this order, the petitioner - original respondent No. 4 - bank has filed the present petition.
3. We have heard Mr. Joshi, learned advocate for the petitioner -
bank. The learned advocate appearing for the petitioner submitted that the Tribunal has committed error by issuing such directions as to recover the excess amount from the petitioner. He vehemently submitted that the petitioner being disbursing agency only such a direction should not have been issued by the Tribunal against the petitioner. Further, as per the affidavit filed by the respondent No. 2, excess payment is made to the petitioner and the petitioner bank cannot be saddled with the liability of such payment. Moreover, he contended that in view of the affidavit filed by the petitioner before this Court, wherein, in para 1 it is stated as under, pursuant to order passed by the Tribunal, the amount is recovered from the bank:
"At the outset, I respectfully say and submit that the petitioner Bank has received the communication dated Page 4 of 11 C/SCA/1746/2015 ORDER 15.10.2009 from the Department of Expenditure, Central Pension Accounting Office, Interim Central Record Keeping Agency, TrikootII, Bhikaji Cama Place, New Delhi - 110 066 along with the Annexure III, whereby, the present petitioner was requested by the concerned Department to pay the corresponding Pay Band and Grade Pay / Pay Scale w.e.f. 01.01.2006 in the Pay Scale of Rs.75,50080,000/ to the present respondent No.1. A copy of the communication dated 15.10.2009 issued by the Department of Expenditure Central Pension Accounting Office, New Delhi along with AnnexureIII is annexed hereto and marked as AnnexureI to this affidavit. In pursuance to the specific instruction by the communication dated 15.10.2009 made by the concerned Department, the present petitioner Bank has paid the amount to the present respondent No. 1."
3.1 Further, the learned advocate appearing for the petitioner submitted that such a direction would be treated as precedent and the petitioner bank will have to unnecessarily incur financial loss. Making above submissions, he submitted that the order of the Tribunal against the present petitioner - bank may be quashed and set aside.
4. We have heard the learned advocate appearing for the petitioner and perused the impugned order passed by the Tribunal so also Page 5 of 11 C/SCA/1746/2015 ORDER the documents on record. From the record, it appears that there was no such argument by the bank before the Tribunal. The Tribunal while considering the matter in detail, has observed in paras 14 to 20 as under:
"14. The crux of the contentions of the applicant is that while implementing the 6th Pay Commission recommendations for the pre2006 pensioners, his basic pay at the time of his retirement should not have been treated as Rs.73007600, but it should have been at the scale of pay of Rs.73007800. The applicant makes this contention on the basis of Annexure6 communication - a Presidential order upgrading the pay scale of the Members of the ITAT to Rs.73007800 making it at par with Members of CEGAT. As extracted above, Annexure - 6 clearly states that this upgradation of the pay scale is w.e.f. 0111996. The two pay scales mentioned in Annexure 6 viz. (i) Rs.73007600 and (ii) Rs.73008000 have been revised after the 6th Pay Commission as (i) Rs.67000 79000 and (ii) Rs.7550080000 respectively. The applicant states that when the revision in pension occurred in accordance with the 6th Pay Commission recommendations the respondents ought to have taken into account the revision took place in AnnexureA/6 and treated that the post of the Member of the ITAT was having a revised pay scale of Rs.7550080000 in Page 6 of 11 C/SCA/1746/2015 ORDER terms of Annexure6.
15. It appears that in the meantime the Registrar of the ITAT, Mumbai had written a letter dated 096 2009 to respondent no. 4 Bank informing that the applicant be paid a revised pension at 50% of the minimum of the scale of Rs.7550080000. It further appears that the respondent no. 4 has meekly followed the said letter and started paying the applicant a pension at 50% of the minimum of the scale of Rs.7550080000. The aforesaid communication written by the Assistant Registrar, ITAT, Mumbai can be seen at Annexure6(H) at page no.23 of the paper book of OA/253/2012. It further appears that Annexure 1 and 2 pension orders have been received by the Bank subsequent to it.
16. It is a well settled in the pension matters that a pension of a Government employee is determined on the basis of the qualifying service and also on the last pay drawn by him. Sometimes it will be the average of the pay drawn during a certain period prior to his date of retirement/ superannuation. "Last pay drawn" is very crucial for determining the Pension. Therefore, it is difficult to understand as to how the applicant can claim for a higher rate of pension on the basis of the salary in a scale of pay which he had never drawn or enjoyed. At the time of his retirement on 12 Page 7 of 11 C/SCA/1746/2015 ORDER 71992 his scale of pay was Rs.73007600. Annexure 6 order upgrading the pay scales of the Members of the ITAT came into the effect only from 0111996. By that time, obviously, the applicant had retired from service. No retrospective effect has been given to the Presidential decision in Annexure 6 so that the benefit of such upgradation of pay scale could be made applicable to the applicant, who retired about three years prior to 0111996. No representation was made by the applicant, in the meantime, for extending the benefits of Annexure 6 to him, either.
17. It is seen from the contentions of respondent nos. 1 to 3 that they are ready to pay 50% of the minimum of the scale of pay as per the 6th Pay Commission which was corresponding to the pay scale prevailing at the time when the applicant had retired from service. The argument of the applicant, that the respondents while fixing Annexure 1 and 2 pay scales ought to have taken into account of the AnnexureA/6
- Presidential Order by which the scale of pay of the Members in the ITAT was enhanced, seems to be too far fetched and ambitious.
18. After giving an anxious consideration of the grievances of the applicant - an octogenarian - who had appeared in person for ventilating his grievances before this Tribunal, I am unable to find any legal basis for his claims.Page 8 of 11 C/SCA/1746/2015 ORDER
19. Mr. Joy Mathew, learned counsel for the respondents submitted that the excess payment, if any, received by the applicant is liable to be recovered from him in the light of the decision of C.P. Uniyal's case (supra). At para14 in the judgment of C.P.Uniyal's case (supra), Hon'ble Apex Court observed:
"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 overpayment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. 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 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 Page 9 of 11 C/SCA/1746/2015 ORDER without 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."
In the instant case, it appears to me that the excess pension, if any, made by respondent no.4 was on account of the Bank's reliance on the aforesaid letter from the Deputy Registrar, ITAT, Mumbai. No such authorization was issued by the competent authority namely the respondent nos. 1, 2 and 3. I do not perceive any collusion or misrepresentation or fraud on the part of the applicant. Therefore, if at all any amount is found to be paid to the applicant in excess of his pension due as per Annexures 1 and 2, no such amount shall be recovered from the applicant. Respondent nos. 1 to 3 may recover such excess amount, if any, from the respondent no. 4 bank.
20. In the result, OA is dismissed. It is hereby ordered that respondent nos. 1 and 2 shall conduct a special audit in respect of the pension amounts paid to the applicant by respondent no.4 Bank. If any excess amount is found to have been paid by respondent no. 4 to applicant, the same shall be recovered from respondent no.4 Bank without casting any burden on the applicant, considering the fact that he is a Page 10 of 11 C/SCA/1746/2015 ORDER pensioner in his early 80s.
In the circumstances of the case, parties shall suffer their own costs."
5. Thus, considering the aforesaid observations made by the trial Court, more particularly, in paras 19 and 20, wherein, the Tribunal, taking into consideration the decision of the Hon'ble Apex Court in the case of C. P. Uniyal, has rightly observed that the amount should be recovered from the bank and in the considered view of this Court, no error has been committed by the Tribunal which requires interference at the hands of this Court. Accordingly, this petition having found without any substance, is dismissed in limine.
5.1 It is made clear that this order being passed in the peculiar fact and circumstances of the case, may not be treated as a precedent nor be cited in any other case.
[ K. S. Jhaveri, J. ] [ G. B. Shah, J. ] hiren Page 11 of 11