Central Administrative Tribunal - Jabalpur
D.B. Somkuwar vs Union Of India on 9 December, 2015
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.477 of 2013
Jabalpur, this Wednesday, the 9th day of December, 2015
Mr. G.P.Singhal, Administrative Member
Mr. M. Nagarajan, Judicial Member
D.B. Somkuwar, S/o Late Bhagwanji Somkuwar,
Aged about 69 years, C/o Shri Rajat Bose,
Administrative Officer (Retd.)
168-A, Idgah Hills Bhopal 462001 (M.P.) - Applicant
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India, Through its Secretary
Ministry of Mines, Shashtri Bhawan, New Delhi
2. Pay & Accounts Officer, Central Pension Accounts Office,
Government of India, Trikoot-2 Bhikaji Kama Place, New Delhi 110 006
3. Sr. Accounts Officer, Pay & Accounts Office, Geological
Survey of India, GSI Complex, C-Wing, Seminary Hills,
Nagpur 440006 (Maharashtra)
4. Dy. Director General, Geological Survey of India, Operation,
M.P.-1, Bitan Market, E-5, Arera Hills Bhopal (M.P.)
5. Chief Manager, UCO Bank, Central Pension Processing Centre Branch
Somalwar Bhawan 1st Floor, Mount Road Extension
Nagpur 440 001 (Maharashtra)
6. The Branch Manager, UCO Bank, Malviya Nagar, T.T. Nagar
Bhopal (MP) -Respondents
(By Advocate Shri James Anthony for respondents Nos.1 to 4
and none for respondents Nos.5 & 6)
(Date of reserving the order: 07.12.2015)
ORDER
By G.P.Singhal, AM.-
By filing this Original Application the applicant has sought for setting aside of the order dated 21.5.2013 (Annexure A-1) by which it has been communicated to him that as per the revised Pension Order his basic pay should be Rs.8995/- and reduced basic pension should be Rs.6607/- instead of Rs.13493/- and Rs.11105/- drawn by him. Therefore, the pension payable and paid by bank has been calculated, which works out to overpayment of Rs.5,06,665/- to him with effect from 01.01.2006. Accordingly, an amount of Rs.4497/- per month has been directed to be recovered. He has further sought for direction to the respondents to refund the recovered amount of pension along with interest.
2. The learned counsel for the applicant submitted that the applicant was working in the Geological Survey of India and retired on superannuation on 30.09.2004. On superannuation basic pension of the applicant was fixed at Rs.5970/- with effect from 1.10.2004. On implementation of the recommendations of the 6th Central Pay Commission (for brevity CPC) his pension was revised to Rs.13,493/- which was as per Annexure-I to Department of Personnel & Training (for brevity DOPT) Office Memorandum dated 01.09.2008 (Annexure A-4). However, suddenly, without giving any opportunity of hearing the respondents have reduced his pension to Rs.8995/- and have started recovery of alleged excess payment of Rs.5,06,665/- at the rate of Rs.4497/- per month from his pension. Relying on the judgment of the Honble Supreme Court in the matters of State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, learned counsel for the applicant submitted that no recovery can be made from the applicant who is a pensioner.
3. On the other hand, learned counsel for the respondents Nos.1 to 4 submitted that applicants basic pension before 2006 was Rs.5970/-. This pension included dearness pay. Therefore, as per DOPTs OM dated 01.09.2008 (Annexure A-4) his pension should have been fixed at Rs.8995/-
However, the respondent-Bank wrongly fixed the basic pension at Rs.13,493/- presuming Rs.5970/- the pre-2006 pension, as without dearness pay. This mistake was corrected in 2012 as will be evident from the impugned communication dated 21.5.2013 and revised Pension Payment Order dated 14.12.2012 (Annexure A-2). Consequently, a recovery of Rs.5,06,665/- is being made, on account of excess payment of pension from 1.1.2006, in terms of the affidavit sworn by the applicant dated 15.12.2004 (Annexure R-2), wherein the applicant has stated that he would be responsible for returning all the amount which has been deposited in excess in his bank account. The respondents Nos.5 & 6 have also filed their reply on similar terms.
4. Heard the learned counsel for parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
5. On perusal of calculation sheet of pension filed by the applicant himself at Annexure A-5 it would be evident that for calculation of his pension 50% dearness pay was added to his basic pay drawn by him during the period 10 months prior to his retirement. Thus, the figure of Rs.5970/- per month was arrived after adding 50% dearness pay to the basic pay drawn by him at the time of retirement. Therefore, as per Annexure-I to the DOPTs OM dated 01.09.2008 (Annexure A-4) it is the figure of basic pension (pre-2006) with dearness pay which will be applicable for conversion to revised consolidated pension. Thus, the revised consolidated pension of the applicant shall be Rs.8995/- and not Rs.13,493/-, which was erroneously fixed by the respondent-Bank i.e. the Bank disbursing his pension. As per the instructions given in OM dated 01.09.2008 in para 8 it is provided that [A]ll Pension Disbursing Authorities including Public Sector Banks handling disbursement of pension to the Central Government pensioners are hereby authorised to pay pension/ family pension to existing pensioners/ family pensioners at the consolidated rates in terms of para 4.1 above without any further authorization from the concerned Accounts Officers/Head of Office etc..
6. Thus, the error in regard to fixation of pension at the stage of Rs.13,493/- was done by the respondent No.5 i.e. the Pension Disbursement Bank, and respondents Nos.1 to 4 had nothing to do about it. In these circumstances, recovery of excess payment from the applicant is being made by the Bank in terms of the affidavit sworn by the applicant and submitted before the Bank on 15.12.2004 wherein he has stated that he would be fully responsible for returning any amount deposited in his account in excess due to any reasons by the Bank. Thus, the matter of recovery is between the Bank and its customer and not between the Government and its employee. Therefore, the decision of the Honble Supreme Court in the matters of Rafiq Masih(supra) shall not be of any help to the applicant in the present case. We are fortified in our view with the decision of coordinate Bench of this Tribunal at Chandigarh in the matters of Surinder Pal Singh Vs. Union of India and others, Original Application No.060/00561/2014 decided on 17.04.2015, relevant paragraphs of the said order read thus:
(10). We have given our careful consideration to the matter. The learned counsel for the applicant has not rebutted the content of Annexure R-4/1 which is the statement regarding amount of pension payable to the applicant from 01.1.2006 and that actually paid. Hence his plea that he should be allowed original amount of pension without deduction is clearly inadmissible.
(11). So far as reliance is place on Rafiq Masih (Supra) it is observed that in that case the Apex Court has provided guidelines vide para 4 where payments that have mistakenly been made should not be recovered. Para 12 reads 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. This para apparently relates to recovery that had been ordered from an employee/ex-employee by the Government who is the employer. However, in the instant case, the recovery has been made by the Bank, which is only a pension disbursing authority, on account of excess pension having been paid to the applicant, against his entitlement as per PPO issued by the respondent Department. The Bank is merely a conduit of the pension amount and Government of India will release funds to the Bank only as per the entitlement of the pensioners. If excess payment is made erroneously by the Bank, the Government of India will not reimburse the Bank on this account. The Bank itself is the custodian of public funds by way of deposits by the general public and its clients and this is public money. Any loss on account of excess payment being made to pensioners by the Bank would therefore have to be charged by the Bank to its internal accruals and thus, it is the public which would pay for such errors.
(12). The number of Government employees is over 3 million and the number of pensioners is over a million. When pay/pension revision is effected for such a large number of employees mistakes may take place. Therefore, whenever revision of pay scales and pensions is effected as a result of recommendations of the Pay Commission being implemented usually with some time lapse, lump-sum arrears are often released to the pensioners and the revised pension is paid with prospective effect. At the time of release of such revised pay/pension, arrears and revision of pay/pension, the employee/pensioner is required to furnish an undertaking to the Government department in which he/she is working or to the Bank which is disbursing the pension that he/she shall be liable for recovery of any amount paid in excess to employee/pensioner. Such an undertaking has been signed and submitted by the applicant in the present case also after revision of his pension on the basis of 6th Pay Commissions recommendations. Hence liability of the applicant to repay the amount of pension paid in excess to him by the Bank cannot be ignored since ignoring this aspect could hit the Banks to the tune of several hundred crores as many cases of excess release of pension are coming to light. The public/tax payers should not be burdened on this account. In this matter we are guided by the judgment dated 17.08.2012 in Chandi Prasad Uniyal (supra) wherein it had been held as follows:
15. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy.
16. 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 over-payment 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 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 Taking a sympathetic view of the matter and keeping in view the fact that the applicant is now around 70 years of age and he is getting pension of around Rs.18,000/- per month the Bank should restrict the monthly deduction from his pension to an amount of Rs.2000/- only so that this recovery does not amount to an intolerable burden on the pensioner.
(13). The O.A. is disposed of with the above directions.
7. In the instant case, we find that the impugned recovery has already been stayed by the Tribunal vide interim order dated 15.7.2013, and thereafter more than three years have already elapsed. In this view of the matter, we are of the considered opinon that no further indulgence is required in the instant case.
8. Thus, having considered all pros and cons of the matter, we do not find any justification to grant any relief prayed for by the applicant in this Original Application.
9. In the result, the Original Application is dismissed. The interim order passed earlier stands vacated. In the facts and circumstances of the case, the parties are left to bear their own costs.
(M. Nagarajan) (G.P.Singhal)
Judicial Member Administrative Member
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Sub: recovery by bank from pension OA No.477/2013
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