Central Administrative Tribunal - Delhi
Gurdev Singh Minhas vs M/O Defence on 18 April, 2024
1
Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 1990/2018 with MA No. 2036/2023.
This the 16th day of April, 2024.
Hon'ble Dr. Anand S Khati, Member (A).
Gurdev Singh Minhas, Aged 73 years, S/o Sh. Lashkar Singh,
retired Assistant Engineer from MES, r/o B-157A, Gali No.
10, Sai Kunj, New Palam Vihar, Phase-III, Gurgaon-122017.
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Union of India, through the Secretary, Ministry of Defence,
Govt. of India, New Delhi.
2. The Chief Engineer, MES Head Quarter, Delhi Zone, Delhi
Cantt. 10.
3. The Principal C.D.A. (Pension) Ministry of Defence,
Allahabad.
4. The Sr. Branch Manager, Bank of Baroda, Vasant Vihar,
New Delhi.
...Respondents
(By Advocate: Mr. U. Srivastava)
O R D E R (ORAL)
In the instant OA, the applicant is seeking the following reliefs:
2Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 26.3.2018 (A/1) and declaring to the effect that the same is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to restored the earlier pension of the applicant with all the consequential benefits including arrears of difference of pension with interest.
(ii) That the Hon'ble Tribunal may graciously be pleased to pass an order directing the respondents to re-fix the pension of the applicant from the date of retirement as per the revised pay order dated 16.11.2017 with all the consequential benefits w.e.f. 1.1.2006 in Grade pay of Rs. 4600/ and not to recover any amount from the pension of the applicant in compliance of the impugned order and also refund the same if already recovered with interest.
(iii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. Facts in nutshell are that the applicant who was working with the respondents superannuated on 30.06.2004. In this OA the impugned PPO dated 26.03.2018 is challenged, whereby the respondents have revised pension of the applicant after 7th CPC w.e.f 01.01.2016, reducing the pension of the applicant from Rs. 44,493/- to Rs. 29,300/- and on the basis of which, the bank authorities without issuing any show cause notice have revised the pension of the applicant from Rs. 44,493/- to Rs. 29,300/- and started recovery of Rs. 10,000/- from the monthly pension of the applicant.
3Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
3. At the time of the retirement, basic pay of the applicant was Rs. 14,730/- and on the basis of this last pay, the competent authority fixed the pension of the applicant vide PPO No. C/CORR/ENG/08046/2004. Subsequent to 6th CPC, the pay of the applicant should have been notionally fixed in PB-II +GP 4600/-, which is the replacement scale of pay of Rs. 6500-10,500/-, but no such revised PPO was issued by the competent authority or atleast the same was not communicated to the applicant at any time as per the information given by the bank authorities. It is further contended in the OA that at the time of retirement, some litigation was pending regarding the pay of the Assistant Engineers and after disposal of the same, the competent authority vide order dated 16.11.2017 revised the pay of the applicant w.e.f 09.08.1999 and consequently revised the pay of the applicant to Rs. 11,300/- at the time of his retirement. In the order dated 16.11.2017, it is clearly stated that the retiral benefits of the applicant should be revised accordingly with benefits.
4. PCD (P) Allahabad, without considering the order dated 16.11.2017, issued a revised PPO dated 26.03.2018 of the applicant after 7th CPC w.e.f 01.01.2016, reducing the pay of the applicant from Rs. 44, 493/- to Rs. 29,300/-. and on the basis of which, the bank authorities without issuing any show cause notice has revised the pension of the applicant from Rs. 44,493/- to Rs. 29,300/- and started recovery of Rs. 10,000/- from the monthly pension of the applicant.
4Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
5. The applicant submitted representation to the bank authorities as well as to the PCD(P) Allahabad, but no appropriate relief was provided to him, hence this OA.
6. During the course of the arguments, the learned counsel for the applicant limits the relief to the extent that the recovery of any amount in compliance of the impugned order should be stopped and the already recovered amount should be refunded to the applicant.
7. The learned counsel for the respondents opposes it and highlights para 3 & 4 of the counter affidavit, wherein they relied upon the judgment of Hon'ble Supreme Court dated 29.07.2016, titled as High Court of Punjab & Haryana & Others Vs. Jagdev Singh, wherein the Apex Court held that the respondents are entitled to recover the excess amount from the pension of the applicant without any demur.
8. The learned counsel for the respondents also relies on the judgment dated 05.04.2016, in OA No. 290/00305/2015, CAT, Jodhpur Bench and the order dated 17.04.2015 in OA No. 060/00561/2014, CAT, Chandigarh Bench.
9. The learned counsel for the applicant vehemently opposes the arguments of the learned counsel for the respondents by relying on the judgment of this Tribunal in OA No. 3898/2016, decided on 12.01.2018 in the 5 Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
matter of Jyoti Nathani Vs. Ministry of Defence & Ors, highlighting para 11 & 12, which reads as under:
"11. It is seen that the order dated 09.08.2016 issued by the respondent-bank mentions about the excess payment of pension from the commencement of the pension accrued to the applicant. They have stated that the difference in basic pay with the respective DA arrived at Rs.8,54,791/- was erroneously paid to the applicant, which will be recovered from her monthly pension @ Rs.6,427 / - in 133 months from August, 2016 to August, 2027, which order has been impugned by the applicant in this OA. It is also seen that whatever fixation has been done, the same has been done by the respondents themselves, as it is their own calculation. The applicant, who has no role in the aforesaid calculation, has neither given any wrong or false information nor had she misrepresented anything to the respondents. Hence, there is no fault on the part of the applicant for which recovery proceedings of the alleged excess payment of pension can be legally initiated that too without issuing any show cause notice or affording any personal hearing. It is also well settled position that pension is not a bounty but a right of a government servant and it is in a character of property as envisaged in Article300A of the Constitution of India. Time and again through various judicial pronouncements of Hon'ble Apex Court, the pension has been given constitutional recognition by including the term 'pension' in the definition clause under Article 366 (17) of the Constitution of India and it has been held by the Apex Court that the pension is a constitutional right of the pensioner and it cannot be lightly interfered with and cannot be dealt with in a casual manner or in a manner not in accordance with the provisions of the Constitution of India. No doubt that the respondent-bank is working as an Agent or a middleman of the pension sanctioning authority for disbursement of pension to its employees and the said service of the respondent-bank is a statutory duty of the pension granting authority entrusted to the respondent-bank under the Government of India Scheme regulated by the Reserve Bank of India. Though it was argued that 6 Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
the regulatory instructions do not require any permission or mandate any notice to be issued before effecting the recovery but these instructions of the RBI for recovery of excess payment qua the matters of pension cannot be decided by adjustment as it will directly in the teeth of the decision of the Hon'ble Apex Court in State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. (supra) whereby recovery of excess payment from the pension of applicant by the respondent-bank is impermissible in law. Relevant portion of the decision is reproduced hereunder:
"18. 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, summaries 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.7
Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
(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 "
12. Clause (ii) of para 18 of the above decision categorically held that recovery from retired employees, or employees who are due to retire within one year, of the order of recovery is completely impermissible in law. Hence, that being the decision and observation of the Hon'ble Apex Court, it is the force of law in Article 14 of the Constitution of India and no authority has any power to ignore the law laid down by the Apex Court. Even the undertaking will not be of any help to the respondent-bank as it clearly mentions that the letter of undertaking is pertaining to the payment of pension under PPO."
10. The learned counsel for the applicant further draws my attention to the order of Hon'ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih( White Washer) Etc. [2015(4) SCC
334) decided on 18.12.2014, wherein in para 18, it has been held thus:
"18. 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, summaries 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).
8Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
(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 "
11. The learned counsel for the applicant states that clause 18 (ii) & (iii) are applicable in the case at hand and in view of the same recovery from retired employees or employees who are due to retire within one year, of the order of recovery or 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 is impermissible in law.
12. Perusing the pleadings available on record and the arguments advanced by the learned counsels for the respective sides and taking lead from the various ratios laid down by the Hon'ble Supreme Court and followed by this Tribunal, I am of the considered opinion that if any erroneous payment has been made to the applicant and the fault for making such payment entirely lies with 9 Item No. 21/ Court No. 5. O.A. No. 1990/2018 with MA No. 2036/2023.
the respondents and if any wrong fixation has been done which has resulted into excess payment of the pension to the applicant for which the applicant is not at fault, the respondents cannot make recovery of such payments from the applicant in view of the settled legal position in this regard. The respondents are not entitled to recover the excess payment made to the applicant.
13. In the light of above discussion, the error which has been committed by the respondents cannot be shifted to the shoulders of the applicant. No fault is made out on the part of the applicant and the entire fault lies with the respondents for the erroneous fixation and payment.
14. Accordingly, the OA is allowed. The respondents are directed not to make any further recovery from the applicant and also to refund the recovered amount to the applicant within a period of three months from the date of receipt of a certified copy of this order. The applicant will be entitled to the pension per the revised PPO. However, there shall be no order as to costs.
(Dr. Anand S. Khati) Member (A) /abhay/