Central Administrative Tribunal - Ernakulam
T. Venugopalan vs Union Of India on 22 October, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00233/2014
Saturday, this the 22nd day of October, 2016
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
T. Venugopalan, aged 71 years, S/o. Late C.K. Ravunni Mennon,
Accountant (Retired), All India Radio, Ramavarmapuram, Trichur,
Residing at Ushus, Vyasagiri Post, Wadakkancherry RS.,
Thrissur - 680 623. ... Applicant
(By Advocate : Mr. Shafik M.A.)
Versus
1. Union of India, represented by the Secretary,
Department of Pensions & Pensioners Welfare,
Ministry of Personnel, Public Grievances and Pensions,
New Delhi - 110 001.
2. The Central Pension Accounting Office,
Government of India, Trikoot, 2-Bhikaji Cama Place,
New Delhi - 110 066.
3. The Divisional Manager, Central Pension Processing Cell,
Canara Bank, Head Office, Spencer Building, 86, MG Road,
Bangalore - 560 001.
4. The Manager, Canara Bank, Main Branch,
Round South, Trichur - 680 001.
5. The Pay & Accounts Officer, All India Radio,
Chennai, 7, Kamaraj Sala, Mylapore,
Chennai - 600 004. ... Respondents
[By Advocates : Mr. N. Anilkumar, Sr. PCGC B. (R1, 2 & 5) &
Ms. V.K. Hema (R3&4)]
This application having been heard on 17.10.2016, the Tribunal on
22.10.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant is a pensioner, aged 71 years, retired from All India Radio (AIR), Trissur as Assistant. His grievance is that the revised pension granted to him from November, 2011 onwards at the rate of Rs. 12,587/- has suddenly been reduced from February, 2014 to Rs. 8,392/- and the respondent No. 3 - the pension disbursing bank- has directed him to advise on repayment of the excess pension given to him. Applicant alleges that reduction in pension was a unilateral decision taken by the bank and the same is illegal, arbitrary and violative of natural justice as no notice was given to him before such decision. He states that the communications addressed to him subsequently reducing his pension to Rs. 8,932/- vide Annexure A1 addressed to him in his old address of AIR quarters, Trissur were behind the back with the malafide intention to harass him. He seeks relief as under:
' (i) To call for the records relating to Annexure A-1 to A-10 and to quash A- 1 and A-10 being illegal and arbitrary;
(ii) To declare that the applicant is entitled for the amount of pension sanctioned and drawn by him till December 2013 as per A-5 fixation chart and any further improvements on the same and to direct the respondents to grant pension at the rate of Rs. 12,587/- as has been drawn till December, 2013 immediately and to draw any arrears with 18% penal interest;
(iii) To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case;
And
(iv) To grant the costs of this Original Application. '
2. According to the applicant at the time of his retirement on 30.6.2004 his basic pay was Rs. 7,425/- and the average emolument was Rs. 11,138/- after merging 50% of the DA with the basic pay (basic pay Rs. 7,425/- + 50% DA ie. Rs. 3,713/- = total basic pay of Rs. 11,138/-). Pension fixed was 50% of Rs.11138/- i.e. Rs. 5,569/- in terms of Annexure A2 Office Memorandum (OM, for short) dated 1.3.2004 of Department of Expenditure. After the implementation of the VIth Central Pay Commission (CPC) recommendations no revised Pension Payment Order (PPO) was issued by respondent No. 2 Central Pension Accounting Office (CPAO) but a revised pension was sanctioned by the respondent No. 3 bank vide Annexure A3. As per Annexure A3 revised PPO dated 5.9.2008 the revised basic pension of the applicant was Rs. 5,569/- only. However, on coming to know of Annexure A4 OM dated 1.9.2008 issued by respondent No. 1 the applicant happened to see that the revised pension fixation for Rs. 5,569/- is Rs. 12,587/-. Annexure A5 pension fixation chart also showed that the revised pension corresponding to Rs. 5,569/- is Rs. 12,587/-. On seeing Annexure A5 pension fixation chart applicant submitted Annexure A6 representation to the Director (PP) of respondent No. 1. As there was no response he sent several representations to respondent No. 2 from 2009 onwards with copy to respondent No.3. Annexure A7 is the last representation so made by him on 15.11.2011. Annexure A7 representation was acted upon and his pension was revised from Rs. 8,392/- to Rs. 12,587/- from November, 2011 onwards. As the arrears of the revised pension from 1.1.2006 was required to be paid he again submitted representation to respondent No. 3 on 1.6.2002 and accordingly respondent No. 3 instructed the Trissur Main Branch of Canara Bank(Respondent No.4) to disburse the arrears with effect from 1.1.2006 vide Annexure A8. The applicant received Rs. 3,59,690/- by way of arrears of revised pension granted in his SB account on 19.6.2012. Applicant had approached this Tribunal earlier with OA No. 422 of 2010 on the issue of merger of DA and the entitlement of higher pension but he did not press the same as he was granted revised pension with effect from November, 2011. However, from February, 2014 his pension was reduced to Rs. 8,392/-. On submitting Annexure A9 representations to respondent No. 3 and respondent No. 2 by e-mail, respondent No. 3 sent Annexure A10 e-mail attaching a copy of Annexure A1 order and sought for his advice regarding the method of re-payment of excess pension. On 2.4.2014 when the applicant tried to withdraw his pension the transaction was declined by the bank ATM and the bank refused to permit him to withdraw any amount unless he repaid the excess amount.
3. When the OA came up for admission hearing this Tribunal granted an interim order staying the operation of Annexures A1 and A10. As the applicant has informed the Tribunal that the bank has not complied with the interim order a show cause notice was issued to respondents Nos. 3 & 4 whereupon the respondents 3 & 4 filed affidavits stating that after receiving the interim order dated 4.4.2013 the pension was released to the applicant and he had withdrawn the amount from the bank on 7.4.2013.
4. In the reply statement filed by the respondent bank it is stated that as per VIth CPC recommendations and in terms of paragraph 4(i) of Annexure A4 OM dated 1.9.2008 the pension of the applicant was revised to Rs. 8,392/- plus the dearness relief applicable with effect from 1.1.2006. But based on the representation Annexure A7 his pension was revised to Rs. 12,387/- with effect from 1.1.2006. Later the above mistake was rectified by the respondent No. 2 as per Annexure A1 revised PPO and accordingly the bank has updated the revision and requested the applicant to make good the excess pension disbursed for the period from 1.1.2006 to 31.12.2013 in terms of the undertaking [Annexure R4(3)] executed by the applicant wherein he has agreed to indemnify for overpayment.
5. Reply affidavit and additional reply affidavit were filed by respondent No. 3 also (the Central Pension Processing Cell, Canara Bank) on the same lines of the pleadings of respondent No. 4 - the pension disbursing bank.
6. In the counter affidavit filed on behalf of respondent No. 2 Central Pension Accounting Office it is stated that the role of respondent No. 2 is only to create central pension data and forward the pension sanction to the main branch of the pension paying bank. Respondent No.2 states that the pension sanctioning authority and the administrative authority under whom the applicant had last served in the present case is All India Radio, Trissur. The pension sanctioning order has to be issued by Pay & Accounts Officer of All India Radio at Chennai and based on such PPO respondent No. 2 maintains the data and forward the pension sanction order to the bank. Respondent No. 2 has no mandate to sanction or amend the rates of pension sanctioned by the pension sanctioning authority. It acts as intermediary link between the Pay and Accounts Office of Ministry/Department concerned where Government servant had served and the pension disbursing bank. Respondent No. 2 further states that in the instant case on receiving PPO from the Pay & Accounts Office (PAO) of All India Radio, Chennai respondent No. 2 conveyed the authority dated 16.12.2013 for Rs. 8,390/- as authorized by the PAO of AIR, Chennai. According to respondent No. 2 the basic pension of Rs. 5,569/- fixed by PAO, Chennai was after taking into consideration of 50% DA. The revised pension corresponding to Rs. 5,569/- is Rs. 8,392/- as per the pension fixation chart. Accordingly, respondent No. 2 also had issued revised authority dated 16.12.2013 of Rs. 8,392/- to the bank on the basis of revised PPO issued by PAO, Chennai. Respondent No. 2 points out that although respondent No. 3 had firstly revised the pension of the applicant as Rs. 8,392/- and later acting on the representation of the applicant and without taking up the matter with respondent No. 2 suo moto erroneously revised the applicant's pension to Rs. 12,587/- and paid excess amount of Rs. 3,59,690/- for which no authority was issued by respondent No. 2. According to respondent No. 2 the act of respondent No. 3 was wrong and contrary to the Government orders. Respondent No. 2 states that it was respondent No. 3 who initiated the steps for recovery.
7. After impleading the Pay and Accounts Officer, Chennai as additional 5th respondent vide MA No. 180/1295/2014, a reply statement was filed by that respondent stating that at the time of the applicant's retirement his last pay drawn was Rs. 9,975/- in the pre-revised scale of Rs. 5000-150-8000/- which included basic pay of Rs 6,650/- plus dearness pay of Rs. 3,325/- and accordingly his pension was fixed at Rs. 4,988/-. Subsequently the applicant's pay scale was revised to Rs. 5,500-175-9000/- with effect from 1.1.1996 and his pension was revised and the last pay fixed was Rs. 11,138/- which was of inclusive of the basic pay of Rs. 7,425/- plus dearness pay of Rs. 3,713/-. His pension was accordingly fixed at Rs. 5,569/- (i.e. 50% of Rs. 11,138/-). Applicant's pension was further revised to Rs. 8,392/- as per the recommendations of the VIth CPC after taking into account the element of dearness pay while computing the basic pension of Rs. 8,392/- as per the fitment table, a copy of this produced as Annexure MA-3. Respondent No. 3 further states:
'7. While so, the Pension Disbursing authority i.e. 3 rd respondent erroneously revised he pension to an alarmingly higher rate @ Rs. 12587/- without seeking any clarification/advise from the 5 th respondent as per the 6 th CPC & without taking into account the element of Dearness Pay which was already merged in the pre- revised pension of Rs. 8,392/-. In other works, the 3 rd respondent caused more havoc by increasing the revised pension to Rs. 12,587/- instead of his entitled rate @ Rs. 8,392/- as per the 6th CPC without verifying the admissibility of pension as per the 6th CPC with effect from 01.01.2006, either from the 5 th respondent or from other available sources of the banking/Government. Side, there by inflicting financial loss to the Government by way of over payment of pension to the applicant. The applicant is aggrieved and has filed this OA before the Hon'ble Tribunal to restore the pension of Rs. 12,587/- which was wrongfully calculated by the 3rd respondent and paid by the 4th respondent.
8. In reply to Para 2 of the Original Application, it is submitted that there is no logical truth in the contention of the applicant that this basic pension of Rs. 5569/-
prior to 6th CPC is without Dearness Pay and that the revised pension is to be fixed @ Rs. 12,587/-. His basic pension of (Rs. 55,699 pre-2006) is 50% of the last pay drawn among of Rs. 11,138/- which is the total emoluments on the basic pay of Rs. 7425/- with 50% DP of 3713. (7425+3713=11138/2=5569).
9. b�&....................Therefore, the responsibility for fixing the non-entitled amount of pension of Rs. 12,587/- to the applicant lies on the shoulder of the disbursing authority i.e. 3rd respondent and that 5th respondent is no way connected with the episode of short fall of pension to the applicant. The pension authorized by the PAO as per the pension calculation chart holds good for purpose of pension entitlement to the applicant .' (Italics supplied) According to the additional respondent No. 5, 3 rd respondent is solely responsible for the excess pension paid to the applicant.
8. In the rejoinder filed by the applicant refuted the contentions of respondent No. 4 and respondent No. 2 and claimed that as per Annexure A4 he is entitled to the revised pension of Rs. 12,587/-.
9. Heard Mr. Shafik M.A. learned counsel for the applicant, Mr. N. Anil Kumar, Sr. PCGC (R) appearing for respondents No. 1, 2 & 5 and Mrs. V.K. Hema, Advocate for respondents Nos. 3 & 4. Perused the record.
10. The pleadings of all the parties have been paraphrased above in extenso with a view to have a clear perception of their contentions. Applicant is heavily relying on Annexure A5 pension fixation chart which forms a part of Annexure A4 OM, in the form of a 'fitment table'. The mode in which consolidation of the pension of existing pre-2006 pensioners based on the recommendations of the VIth CPOC has been explained in Annexure A4 OM. Paragraph 4.1 of the Annexure A4 OM reads:
'4.1 The pension/family pension of existing pre-2006 pensioners/family pensioners will be consolidated with effect from 1.1.2006 by adding together:-
i. The existing pension/family pension.
ii. Dearness Pension, where applicable.
iii. Dearness Relief up to AICPI (IW) average index 536 (Base year 1982=100) i.e. @ 24% of Basic Pension/Basic family pension plus dearness pension as admissible vide this Department's OM No. 42/2/2006- P&PW(G) dated 5.4.2006.
iv. Fitment weightage @ 40% of the existing pension/family pension.
Where the existing pension in (i) above includes the effect of merger of 50% of dearness relief w.e.f. 1.4.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/family pension with effect from 1.1.2006. ' (Bolding supplied)
11. Therefore, it is clear that after the VIth CPC the government decision was to revise pension in respect of the pre-2006 pensioners after excluding the merged dearness relief of 50% from the pension. However, it appears that the applicant though relying on Annexure A4 as the basis of his claim of Rs. 12,587/- as his revised pension, he was oblivious of this aspect and has proceeded with his claim as if his pension fixed in March, 2004 i.e. Rs. 5,569/- was without merging 50% of the dearness relief granted w.e.f. 1.4.2004. This aspect has been made abundantly clear in the reply statement of the 5th respondent - the authority who fixed the pension of the applicant. Respondent No. 5 has produced Annexure MA-1 (at running page 64 of the paper book) pension calculation sheet in respect of the applicant at the time when his pension was fixed. It is worth extracting the contents of Annexure MA-1 pension calculation sheet of the applicant:
'ALL INDIA RADIO CHENNAI-600 004 PENSION CALCULATION SHEET NAME OF THE GOVT. SERVANT SHRI/SMT. T. Venugopalan DESIGNATION: Assistant STATION: AIR/ Thrissur DATE OF BIRTH : 15.6.1944 DATE OF APPOINTMENT : 27.8.1965 DATE OF RETIREMENT : 30.6.2004 SCALE OF PAY : 5500-175-9000 TOTAL QUALIFYING SERVICE : FROM 27.8.1965 TO 30.6.2004 YEARS 38 MONTHS 10 DAYS 5 LESS : EX.O.L 1 DAY 29.11.80 YEARS __ MONTHS__ DAYS__ ADD WEIGHTAGE : YEARS __ MONTHS __ DAYS__ NET QUALIFYING SERVICE YEARS 38 MONTHS 10 DAYS 4 Restricted to 33 years (OR) 66 HALF YEARLY PERIOD AVERAGE EMOLUMENTS FROM _______ TO _________ FROM _______ TO _________ FROM _______ TO _________ Pay DP FROM 1.9.2003 TO 30.6.2004 7425 + 3713 = 11138 BASIC PENSION 11138 X ___ = Rs. 5569
2 66 ROUNDED OFF TO RS. 5569 DCRG RS. 12363 X 66 = Rs. 203989.50 OR Rs. 203990/- Due 203990 Drawn 182688 21302 PAY : 7425 DP : 3713 DA 11%: 1225 FAMILY PENSION : LPD 11138 X 30% 3341 (OR) SUBJECT TO A MINIMUM OF RS. ___ ENHANCED FAMILY PENSION :
1) FAMILY PENSION RS. ___ x 2 = Rs. ___ OR ___
2) LAST PAY DRAWN RS. 11132 = Rs. 5569 OR ___
2
3) BASIC PENSION = Rs. 5569 OR ___'
12. It is clear from Annexure MA-1 that while arriving at the basic pension of the applicant the average emoluments from 1.9.2003 to 30.6.2004 was calculated as 11,138/- which consisted of the pay element of Rs. 7,425/- and dearness pay of Rs. 3,713/-. 50% of the aforesaid average emoluments is Rs. 5,569/- and that it was the basic pension received by the applicant up to 1.1.2006. After 1.1.2006 the aforesaid amount of pension underwent a revision in terms of Annexure A4 OM adverting to the recommendations of the VIth CPC. The table annexed to Annexure A4 shows separate columns for 'the pre-2006 basic pension without dearness pay' and 'the pre-2006 basic pension with dearness pay'. As the pre-2006 basic pension of the applicant i.e. Rs. 5,569/- was arrived at by taking into account of the merger of dearness pay with his pay, in terms of the aforequoted provisions of Annexure A4 OM the merged dearness relief of 50% has to be excluded from the pension. Accordingly, in terms of the fitment table annexed to Annexure A4 the pre-2006 basic pension of the applicant has to be treated as Rs. 3,713/- (i.e. 50% of the pay of Rs. 7,425/- as on 30.6.2004). As per the table annexed to Annexure A4 OM the revised consolidated pension for Rs. 3,712/- is Rs. 8,392/-. According to the respondent No. 5 the PAO had fixed the consolidated the pension of the applicant as only Rs. 8,392/-. Respondent No. 5 alleges that the 3 rd respondent wrongly revised the pension to a alarming higher rate of Rs. 12,577/- without seeking clarification or advice from the 5 th respondent and that the arrears of pension from 1.1.2006 also was wrongly paid by the 3 rd respondent, resulting in more havoc.
13. When the aforequoted provision in paragraph 4.1 of Annexure A4 OM clearly provides that the after the VIth CPC recommendations the effect of merger of 50% of dearness relief w.e.f. 1.4.2004 will be recalculated after excluding the merged dearness relief of 50% granted with effect from 1.4.2004, there is no basis for the claim of the applicant by merely relying on the revised pension as per the fitment table that is applicable to the figure of Rs. 5,569/-. As observed above, applicant has made Annexure A7 representation on the premise that his pre-1.1.2006 pension did not have the effect of the merger of dearness relief. However, Annexure MA-1 calculation sheet very clearly shows that his pre-1.1.2006 pension was arrived at on the basis of the average emoluments which consisted of both pay and dearness pay. It is worth noticing in the pleadings in the OA that the applicant has termed the 'dearness relief' element of his average emoluments as the normal 'dearness allowances '('DA)'. Thus, it is clear that it was on the basis of the wrong assumption that his pre-1.1.2006 pension of Rs. 5,569/- did not have the effect of merger of dearness relief, the applicant submitted Annexure A7 representation to respondents Nos. 2 & 3. It appears that respondent No. 3 was carried away by the arguments in his Annexure A7 representation without exercising due diligence to understand the effect of paragraph 4.1 of Annexure A4 OM in its entirety.
14. Shri. Shafik very strenuously argued to establish that Rs. 12,587/- sanctioned by the disbursing authority is the revised pension due to the applicant and that as per the instant law/rules the pension once sanctioned shall not be reduced to the detriment of the pensioner except in the manner as provided in Rule 8 of CCS (Pension) Rules. Quoting the full text of Rule 8 of CCS (Pension) Rules he argued that in the instant case while issuing Annexure A1 by respondent No. 2 the applicant was not given any notice or his versions were not heard. Shri Shafik therefore submitted that while issuing Annexures A9 & A10, the respondents have violated the principles of natural justice. This Tribunal is of the view that the above argument of Shri Shafik will not hold water in view of the circumstance that the revision of pension by enhancing to Rs. 12,587/- was done by respondent No. 3 not in consultation with respondent No. 2 or respondent No. 5. Respondent No. 5 makes it clear that respondent No. 3 never consulted respondent No. 2 when the former suo moto proceeded to grant a higher rate of pension to the applicant i.e. 12,587/- and also Rs. 3,59,690/- as arrears. On a perusal of Annexure A4 and the contentions of respondent Nos. 2, 3 & 5 it becomes clear that the revision of pension enjoyed by the applicant with effect from November, 2011 was founded neither on any rule nor on any authorization by the competent authority i.e. respondent No. 5 or by respondent No. 2. Therefore, the provisions of Rule 8 of CCS (Pension) Rules, relied on by the applicant are not become applicable to the fact circumstances in this case.
15. Respondent No. 3 does concede that error has occurred to him No. 3 in the matter of revising the pension of the applicant to Rs. 12,587/- and also in the matter of payment of arrears with effect from 1.1.2006 to 19.6.2012. Relying on the undertaking executed by the applicant in favour of the bank Respondents Nos. 3 & 4 plead that the applicant is obliged to reimburse the loss the bank has suffered on account of wrong or excess payment made by the bank.
16. Shri Shafik submitted that in terms of the Apex Court ruling in State of Punjab & Ors. v. Rafiq Masih (White Washer) - 2015 (4) SCC 334 the recovery from retired employees is illegal. However it has to be noted that the Rafiq Masih's decision of the Apex Court is prefaced with a rider contained in paragraphs Nos. 2 & 3 of the judgment. Paragraphs Nos. 2 & 3 of Rafiq Masih's decision reads:
'2. Another essential factual component in the bunch of cases is that the respondent employees were not guilty of furnishing any incorrect information, which had led the competent authority concerned, to commit the mistake of making a higher payment to the employees. The payment of higher dues to the private respondents, in all these cases, was not on account of any misrepresentation made by them, nor was it on account of any fraud committed by them. Any participation of the private respondents, in the mistake committed by the employer, in extending the undeserved monetary benefits to the respondent employees, is totally ruled out. It would, therefore, not be incorrect to record, that the private respondents, were as innocent as their employers, in the wrongful determination of their inflated emoluments.
3. The issue that we have been required to adjudicate is, whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. For the applicability of the instant order, and the conclusions recorded by us hereinafter, the ingredients depicted in the foregoing two paragraphs are essentially indispensable. '
17. In the instant case it can be seen that it is admitted cases of both parties that pension of the applicant has been revised to Rs. 12,587/- based on Annexure A7 representation made by the applicant himself. The discussion in the afore-going paragraphs of this order makes it clear that respondent No. 3 has acted on Annexure A7 representation by way of a mistake. Undoubtedly, the revision of pension had taken place on account of the representation made by the applicant, in fact, is a 'mis-representation' though it does not reach the realms of a fraudulent act by the applicant. The lack of due diligence on the part of respondent No. 3 is very patent in this case. Nevertheless, by taking a lenient view of the mater such misfeasance on the part of the respondent No. 3 can be treated as a 'mistake'.
18. In any view of the matter the amount of pension received by the applicant in excess of Rs. 8,392/- and the arrears to the tune of Rs. 3,59,690/- are undoubtedly undue benefits enjoyed by the applicant although it was the result of a mistake on the part of respondent No. 3. Nevertheless, it has to be observed that applicant too was instrumental in the commission of that mistake by reason of his Annexure A7 representation making a claim in terms of Annexure A5 fitment table and without noticing the full import of Annexure A.4 OM that he is not entitled to pension at the increased rate.
19. Shri Shafik learned counsel for the applicant submitted that applicant is 71 years of old and has suffered the loss of his two sons and is therefore leading a miserable life in the twilight days. He submitted that the amounts the applicant received were already spent for his own needs. However, considering the huge amount involved in this case which is from the public money, the sentiments expressed by the learned counsel for the applicant cannot have a mitigating effect. As pointed out above, the Rafiq Masih's decision also will not come to the help of the applicant because the excess payment was happened to be paid to him in an unauthorized manner by respondent No. 3 on the basis of the Annexure A7 representation made by the applicant. This Tribunal, therefore, feels that in terms of Annexure R4(3) letter of undertaking executed by the applicant in favour of the respondents Nos. 3 & 4 the latter can certainly take steps for realization of the excess amount paid to the applicant.
20. In the result, the Original Application is dismissed. Needless to say the interim order also has to be vacated. However, considering the family circumstances and advanced age of the applicant, this Tribunal is inclined to order the continuance of the interim order for a period of one month more from today in order to enable the applicant to approach the higher forum, if he is advised to do so. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER 'SA'