Central Administrative Tribunal - Ernakulam
M.P. Sivasankara Pillai vs The Central Provident Fund ... on 25 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00741/2015
Thursday, this the 25th day of May, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
M.P. Sivasankara Pillai, Retired Section Supervisor,
Office of Regional Provident Fund Commissioner, Pattom,
Thiruvananthapuram - 695 004, Residing at Sopanam, RG 47,
Pongummoodu, Ulloor, Medical College PO,
Thiruvananthapuram - 695 011. ... Applicant
(By Advocate : Mr. Vishnu S. Chempazhanthiyil)
Versus
1. The Central Provident Fund Commissioner, Employees Provident
Fund Organization, Bhavishyanidhi Bhavan, 14-Bhikji Cama Place,
New Delhi - 110 066.
2. The Regional Provident Fund Commissioner-I, Regional Office,
Bhavishyanidhi Bhavan, Pattom, Thiruvananthpuram - 695 004.
3. The Branch Manager, State Bank of India, Pattom,
Thiruvananthapuram - 695 004.
4. The Chief Manager, Centralized Pension Processing Centre (CPPC),
LMS Compound, Behind Main Block, State Bank of India,
Thiruvananthapuram - 695 033.
5. The General Manager, State Bank of India, Local Head Office,
SS Kovil Road, Thampanoor,
Thiruvananthapuram - 695 001. ... Respondents
[By Advocates : Mr. N.N. Sugunapalan, Sr. along with
Mr. S. Sujin (R1&2) &
Mr. B.S. Syamanthak &
Ms. Bindumol Joseph (R3-5)]
This application having been heard on 15.05.2017, the Tribunal on
25.05.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
The controversy in this case is with regard to the steps taken by respondent Nos. 3-5 pension disbursing bank authorities for recovery of Rs. 1,74,900/- from the applicant vide Annexure A10 communication directing him to remit Rs. 1,56,700/- and informing him that Rs. 12,000/- per month will be deducted from his monthly pension. It is also mentioned in Annexure A10 that Rs. 18,200/- has already been deducted from his pension payment account maintained in the bank.
2. Applicant was working as Section Supervisor under respondent No. 2 Regional Provident Fund Commissioner, Trivandrum. He was superannuated on 31.7.2004. Respondent No. 1 is the pension payment authority and the pension is disbursed through the respondents Nos. 3-5. Applicant has been receiving Rs. 20,192/- per month from July, 2014 up to December, 2014. In May, 2015 it was noted by the applicant that there is no amount to his credit in the pension account. He was informed by the bank that there was no amount in his account, as credit balance has been changed by the bank towards 'delete hold' of Rs. 1,74,900/-. On inquiry the applicant was intimated that his pension was withheld on the basis of the instructions of respondent No. 2. As the applicant was not given any notice of recovering pension he sent Annexures A5 & A6 complaints to respondent No. 3 and respondent No. 2 respectively. Invoking the Right to Information Act he sought information from both the said respondents the details of the orders by which recovery was effected. In response to his complaint and RTI inquiry he was informed by the bank that the excess pension was paid to the applicant due to short recovery of commuted pension at the rate of Rs. 2,332/- with effect from January, 2009. It was informed that the respondent No. 2 has given instructions to stop pension till full recovery is effected. Applicant again submitted Annexure A12 complaint to the bank. Respondent No. 2 in response to his RTI queries supplied Annexures A15 & 16 communications. Applicant being a patient who had undergone pancreatic and liver transplant surgery sent a complaint to the Human Rights Commission. When the bank filed a statement indicating the recovery of pension as per the directions of respondent No. 2 the complaint was closed by the Human Rights Commission. According to him it was on the basis of the information received under the RTI Act he could get a reason for recovery i.e. excess payment given to him. According to him the excess payment is on account of the carelessness of the bank for which he shall not be penalised. He states that he is not responsible for any excess payment and therefore, in the light of the rulings of the apex court in Syed Abdul Qadir v. State of Bihar - (2009) 3 SCC 475 and in State of Punjab and Others v. Rafiq Masih - AIR 2015 SC 696, no recovery should be effected from him which causes hardship to the applicant and such recovery is impermissible in law. He prays for the relief as under:
'1. Call for the records leading to issue of Annexure A9, A10 and A20 by the 4th and 5th respondents and set aside Annexure A9, A10 and A20.
2. Call for the records leading to the issue of Annexure A15 and A16 and set aside Annexure A15 and A16.
3. Declare that actions on the part of the respondents in deciding to effect recovery from monthly pension due to the applicant, without notice to the applicant is illegal and arbitrary.
4. Direct the respondents not to effect any recovery from the monthly pension of the applicant.
5. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
6. Award the cost of these proceedings to the applicant.'
3. Respondents 1 & 2 filed a detailed reply statement pointing out that while in service the applicant was involved in a murder case and also had faced departmental proceedings following his arrest in the criminal case and in connection with two memos served on him on 11.1.2000 and 12.1.2000 proposing inquiry against him on the ground of grave misconduct. During the pendency of the disciplinary proceedings relating to the criminal case he was placed under suspension and while under suspension he retired on superannuation on 31.7.2004. Departmental proceedings initiated against him for misconduct were concluded in 2003 and 2006 and he was exonerated as the charge framed against him vide memo dated 12.1.2000 was not proved. However, the charge levelled against him vide memo dated 11.1.2000 was proved and a penalty of cut of 1% pension for a period of two years was imposed vide order dated 13.4.2006. The criminal case against him ended in acquittal on 28.11.2007 due to lack of evidence. His suspension was therefore revoked with effect from 29.10.2008 and the period of suspension was regularised. His pensionary benefits including the commutation were allowed on 1.12.2008 and the amended PPO (Annexure R1/A3) dated 8.1.2009 was issued. He was granted commutation of pension to the tune of Rs. 2,74,524/-. The bank was given instructions to make the deduction towards commutation with effect from January, 2009 as per Rule 6 of CCS (Commutation of Pension) Rules, 1981. The respondents 1 & 2 further state:
'13. Instead of releasing the pension after deducting commuted portion of pension as amended and forwarded to the Bank, the Bank has released the original full pension without any deduction. The respondents have supplied the copy of the letter dated 8.1.2009 to the applicant also. On having received copy of the said letter, the applicant ws aware that he was entitled for reduced pension for the next fifteen years. However, he had continued to receive full pension without any deduction and pretended ignorance of the receipt of the same. In fact the Bank has made a mistake by releasing the original pension without any deduction consequent on the commutation, totally ignoring the instructions issued by the 2nd respondent.
14. On verification of the payment scroll received from the Bank, it has come to the notice that the Bank has released revised pension without making the reduction in pension arising out of commuted value of pension. Instead releasing basic pension @ Rs. 6,456/- the Bank has released Rs. 8,788/- from January 2009 to March 2015. Thereby the pensioner was paid an excess amount of Rs. 1,74,900/- which was not due to be paid to him. On reconciliation of pension payment the 2nd respondent has noticed this anomaly of excess payment committed due to carelessness on the part of the Bank. If the instruction regarding payment of pension issued by the Office was properly complied with, by the Bank, this anomaly could have been avoided. EPFO has released full pension due to the applicant without any reduction or recovery and if any anomaly of excess payment is committed; the pension payee Bank, SBI, Pattom Branch is responsible for it. Therefore, the applicant cannot raise any grievance against the EPFO in the matter of payment of pension.
15. Therefore, the allegation that this office has reduced any portion of pension is without any basis and the payment of pension by this office to SBI, Pattom is reconciled and the amount has been fully debited from the pension account. At the outset it may be noticed that EPFO has no role in the matter of reduction of pension and this office has released full pension to the Bank without any kind of reduction or recovery from the inception of the payment of pension. Therefore, R1 and R2 are not at all responsible for any sort of recovery initiated by the payee Bank.'
4. Respondents 1 & 2 also states that applicant being a trade union official he is fully aware of the details of his pension. His wife is also a State Government pensioner. His daughter is a Government employee and his son is working in USA. According to the respondents 1 & 2 applicant is pretending ignorance of the excess payment made to the applicant on account of the non-deduction of the commuted portion of his pension. Although the respondent No. 2 had issued Annexure A15 letter to the bank to recoup the excess amount it specifically withdrew the directions given to the bank to stop pension and to effect full recovery of the excess amount. According to respondents 1 & 2 as the steps taken by the bank is on account of the mistake committed by it, it amounts to only recouping of the undue benefits already availed of by the applicant and the respondents have only recouped the public money taken by the applicant by way of a mistake.
5. Respondents 3&4 (the pension disbursing bank) filed a reply statement stating that the bank is only a pension disbursing agency of respondents 1 & 2 and it cannot go beyond the pension payment orders issued by the competent authority. The bank inadvertently omitted to recover Rs. 2,332/- per month towards the commuted portion of pension which resulted in excess payment to the applicant. According to them as per the discussions made with the respondent No. 2 it was decided to recover the excess amount at the rate of Rs. 12,000/- per month from May, 2015. The bank further states that applicant had given Annexure B1 undertaking authorising the bank to recover any excess or wrong payments. According to the bank the unjust enrichment by the applicant would be against public interest.
6. A rejoinder was filed by the applicant refuting the contentions made in the pleadings of respondents Nos. 1 & 2 and also of respondents Nos. 3 &
4. He produced Annexure A21 copy of the order of this Tribunal directing respondents 3 & 4 to take a decision on the regularisation of his period of his suspension and also Annexure A22 copies of the records of the hospital where he had undergone treatment in connection with liver and pancreatic transplant. He states that he was not aware at any point of time that he was being paid excess payment and that he is in financial difficulties for meeting the expenses of the treatment he is undergoing. He also points out in Annexure A16 communication from respondents Nos. 2 & 3 that the over payment was due to the carelessness of the bank. In the rejoinder to the pleadings of the bank the applicant denies the execution of Annexure B1 and contends that no amount is recoverable from him in the light of the decision of the apex court in Rafiq Masih's case (supra). According to him the amount of Rs. 12,000/- recovered after the interim order of this Tribunal has not been debited back to the account of the applicant.
7. Heard Mr. Vishnu S. Chempazhanthiyil, learned counsel for the applicant and learned Standing counsel for respondents 1 & 2 and Mr. B.S. Syamanthak, learned counsel appearing for respondents 3-5. Perused the record.
8. The common thread passing through the pleadings of the respondents Employees Provident Fund Organisation (hereinafter referred to as 'Organisation') and the respondents pension disbursing bank is that there has indeed been overpayment of pension to the applicant as the bank omitted to deduct the commuted amount of pension at the rate of Rs. 2,332/- per month with effect from 1.9.2009. The Organisation contends that the excess payment was detected by them on verification of the EPF staff pension scrolls and Annexure A15 letter was addressed to the pension disbursing bank with a direction to stop pension with immediate effect till the full recovery of the excess amount paid till then. According to the Organisation they have subsequently withdrawn the direction to recover the excess payments finding that the excess payment was due to the mistake committed by the bank. Pointing out the service track record of the applicant and his current affluent condition the Organisation contends that the applicant was consciously receiving the excess amount knowing fully well that his commuted value of pension was not deducted by the bank. Stating that the bank is only a pension disbursing agent of respondents Nos. 3 & 4 admit that the excess payment of Rs. 2,332/- per month was being made due to inadvertence.
9. It is now settled law in Rafiq Masih's case (supra) that from the retired officials no recovery is legally permissible. Therefore, as per the law laid down by the apex court the respondents cannot make any recovery from the applicant's pension.
10. Mr. B.S. Syamanthak, learned counsel appearing for the bank submitted that applicant had executed Annexure B1 authorising the bank to recover the excess payments. It appears from the arguments of the counsel that Annexure B1 undertaking was obtained by the pension disbursing bank on account of the instructions given by the Reserve Bank of India which oversees the pension payment system of the Government of India through specified banks as per a scheme framed by the Government of India. In this case respondents 3 to 5 admit that the respondents Bank is only a pension payment agency. Accordingly, it can be inferred that respondents 1 & 2 has delegated the statutory obligation of payment of pension to the bank mandating the bank to render accounts to the Organisation.
11. It is well settled law through various apex court rulings that pension is a Constitutional right of the pensioner under Art. 300A of the Constitution of India. In D.S. Nakara & Ors. v. Union of India - (1983) 1 SCC 305 a Constitution Bench of the Apex court held that the pension rules applicable to the Government pensioners have to invariably undergo the interpretative process in tune with Part IV of the Constitution of India. The pension disbursing banks being only the agents of the pension granting authorities the former are often unconnected with the Government administration. Being commercial banking institutions they tend to invoke the traditional banking practices including the instructions issued from the Reserve Bank of India from time to time. Unmindful of the constitutional protection given to the pension [see D.S. Nakara's case (supra)] the pension disbursing banks often treat the pension account as a just 'another bank account'and indulge in making recoveries from the pension account of pensioners whenever the bank makes inadvertent excess payment. Such actions of the pension disbursing bank are contrary to the law laid down by apex court pertaining to the legal status of pension and the constitutional rights of the pensioners.
12. Banks are familiar with the banking practices and the laws governing the banks only. It is with this mindset the pension disbursing banks place undue reliance on the printed stereotyped papers like Annexure B1 ( where the pensioners merely sign on the dotted line ) believing that it gives full freedom to them to recover the excess payment made by the banks - even by way of the mistakes committed by its own officials ! They are oblivious to the rights of the pensioner as laid down by the various rulings of the Supreme Court of India. As stated above, Rafiq Masih's case (supra) has given total protection to the pensioners from recovery of excess payments if any received by them. Therefore, this Tribunal is of the view that respondents in their capacity as the pension granting authority and the pension disbursing authority respectively are bound by the law laid down by the apex court in Rafiq Masih's case (supra).
13. In the light of the foregoing discussion this Tribunal is inclined to allow the OA. OA is allowed. The amounts recovered by the respondents 3- 5 pension disbursing bank shall be refunded to the applicant. As Respondent Nos.3 and 4 have expressed indignance in their pleadings about the loss of public money, respondents 3 to 5 may recover the excess payments from the bank officials who were responsible for the mistake and make good the amounts to the respondent Organisation. Parties shall suffer their own costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER ''SA''