Central Administrative Tribunal - Ernakulam
P I Thankappan vs The Assistant Registrar Income Tax ... on 25 May, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00722/2018
Wednesday, this the 25th day of May 2022
CORAM:
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
P.I.Thankappan,
S/o.late Ikkoran,
Aged 70 years,
Senior Peon (Retd.),
Income Tax Appellate Tribunal,
Pazhayedath House, Kakkad Kara, Mamala P.O.,
Via Thiruvankulam, Ernakulam - 682 305. ...Applicants
(By Advocate Mr.C.S.G.Nair)
versus
1. Assistant Registrar,
Income Tax Appellate Tribunal,
1st Floor, Block C-I, Kendriya Bhavan,
Kakkand, Cochin - 682 037.
2. Pay & Accounts Officer,
Ministry of Law and Justice,
Department of Legal Affairs,
4th Floor, Janpath Bhavan,
New Delhi - 110 001.
3. Chief Controller of Accounts,
Central Pension Accounting Office,
Trikoot II Complex, Bhikaji Cama Place,
New Delhi - 110 066.
4. Chief Manager,
Centralized Pension Processing Centre,
State Bank of India, L.M.S. Compound,
Vikas Bhavan P.O., Thiruvananthapuram - 695 033.
5. Branch Manager,
State Bank of India, Thrivankulam Branch,
Ernakulam District - 682 305. ...Respondents
(By Advocates Mr.C.Rajendran, SCGC [R1-3]
& Mr.B.S.Syamanthak [R4-5])
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This application having been heard on 19 th April 2022, the Tribunal
on 25th May 2022 delivered the following :
ORDER
The applicant retired as a Senior Peon from the office of the 1st respondent (Income Tax Appellate Tribunal [ITAT], Cochin) on 30.04.2008 on superannuation after a qualifying service of 35 years 2 months and 10 days. He was issued with a Pension Payment Order (PPO) No. 314380800201 granting him a monthly pension of Rs.3126/- at that time. His pension has been revised from time to time based on the recommendations of the 6th and 7th Pay Commissions. The applicant has been drawing pension from the 5 th respondent (State Bank of India [SBI], Thrivankulam Branch, Ernakulam District). The applicant is aggrieved by the letter that he received from the 4 th respondent, Centralized Pension Processing Centre (CPPC), SBI, Thiruvananthapuram which indicates that the Fixed Medical Allowance (FMA) amounting to Rs.33780/- drawn by him for the period October 2008 to October 2016 would be recovered from his pension as the same was paid without authorization. A copy of this letter dated 15.11.2016 has been produced at Annexure A-2. It has been indicated in the letter that the Pension Disbursing Authority had no right to make any payment without the authorization from CPAO (Central Pension Accounting Office represented in the O.A as 3 rd respondent). The letter mentions that in a CPAO audit enquiry carried out in the CPPC, Thiruvananthapuram, it had been detected that the applicant had been unauthorizedly paid the medical allowance of Rs.500/- per month, which has totalled up to Rs.33780/- calculated from October 2008 to October 2016. It is also mentioned in the letter that as per the instructions from the -3- Reserve Bank of India the amount has to be recovered at one time. However, it has been decided by the CPPC/SBI to initiate a monthly recovery at the rate of Rs.3071/- for 11 months starting from November 2016.
2. The applicant had immediately submitted a representation against the above letter to the 3rd respondent, CPAO, a copy of which has been produced at Annexure A-3. A copy of this representation (dated 30.11.2016) was marked to all the other respondents in this O.A. In his representation the applicant stated that he had not adopted or accepted any alternative schemes like CGHS or ECHS and, as such, he was entitled to get medical allowance right from the beginning. The action taken by the authorities (SBI) regarding the recovery of Rs.33780/- paid to him towards medical allowance is termed wrong and erroneous. His PPO may be corrected if there are any errors and the concerned offices may be intimated. It appears that this representation was replied to by the 4 th respondent (CPPC/SBI) by letter at Annexure A-5. It was clarified therein that he had not been sanctioned the FMA in his PPO along with the pension and that he has been receiving the same only by submitting a declaration at the Branch that he has opted for FMA instead of CGHS. Since the State Bank of Travancore (later this was merged into State Bank of India, SBI) is only the disbursing agency, it has no authority to sanction the FMA. The CPAO officials had pointed out while conducting the audit that the payment of FMA was unauthorized and it should be recovered. However, it is also mentioned in the letter that if the CPAO sanctioned the FMA as sanctioning authority, it would be disbursed to the applicant.
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3. After receipt of the above letter from 4 th respondent the applicant made another representation, produced at Annexure A-7, addressed to the 2nd respondent (Pay & Accounts Officer of the Department of Legal Affairs) for grant of medical allowance with effect from the date of retirement (ie., from 01.05.2008). It is accepted in the representation by him that, though, he was entitled to draw medical allowance, his parent Accounting Organization had not formally granted medical allowance to him at the time of his retirement. Hence, he requested that necessary orders may be passed to include the entitled medical allowance with effect from 01.05.2008 in the PPO. He also certified in the representation that, after his retirement, he resides at Thiruvamkulam, Ernakulam which is an area not covered under the CGHS and that there is no dispensary/hospital under the said scheme. It appears that this representation dated 27.02.2017 was taken up by the Pay & Accounts Office of Department of Legal Affairs (2 nd respondent) with the CPAO (4th respondent). However, the CPAO returned the same to the ITAT, where the applicant had been working as Senior Peon before retirement stating that it has been returned by that office (CPAO) on 20.04.2017 with the remark that "amount of FMA may be given in Revision Authority". It was indicated that the same has not been since submitted back to the CPAO. This letter has been produced at Annexure A-10.
4. It appears that subsequent to the above correspondence the matter was clarified and action was taken by the concerned authorities. The Department of Legal Affairs (Pay and Accounts Office) wrote to the CPAO vide Annexure A-13 authorizing the applicant FMA at the rate of Rs.500/- with effect from 27.02.2017 (the date of application at Annexure A-7 -5- received from the pensioner) to 30.06.2017 and at the rate of Rs.1000/- with effect from 01.07.2017 till the further issuance of any order or until the pensioner resides in an area not covered under the CGHS. It appears that after this order was passed the concerned authorities have given FMA to the applicant with effect from 27.02.2017 as per his entitlement. However, the applicant's main grievance in this O.A is that he had been entitled for FMA right from the date of retirement and that the recovery made to the tune of Rs.33780/- from October 2008 to October 2016 from his pension was not correct. If there had been any lapse on the part of the 1 st, 2nd or 3rd respondents in not entering the approval to draw FMA in the PPO, he should not be penalized at this late stage for the same. He contends further that following the orders of the Hon'ble Supreme Court in State of Punjab & Ors. vs. Rafiq Masih (White Washer) in Civil Appeal No.11527/2014 arising out of SLP(C) No.11684/2012, the Government has issued orders, as per Annexure A-20, prohibiting recovery from pension. Thus, he contends that the amount of Rs.33780/- recovered from him has to be refunded to him, with interest, as he was entitled for FMA right from the date of retirement and the recovery made is illegal. The relief sought by him is as follows :
1. To declare that the applicant is entitled for Fixed Medical Allowance (FMA) with effect from 01.05.2008 onwards.
2. To direct the respondents to grant FMA to the applicant at the appropriate rate with effect from 01.05.2008 onwards.
3. To direct the respondents to grant interest @ 12% p.a for the amount recovered from the pension of the applicant within a time frame.-6-
4. Grant such other relief or reliefs that may be prayed for or that are found to be just and proper in the nature and circumstances of the case.
5. Grant cost of this O.A.
5. In response to the Original Application, learned counsel for the respondents at Sl.Nos.4-5 (ie., the Chief Manager, CPPC/SBI, Thiruvananthapuram and Branch Manager, SBI Thrivankulam Branch, Ernakulam) has filed a detailed reply statement. In their reply the respondents have produced the true copy of the applicant's PPO No.314380800201 at Annexure R-4(a), in order to show that there had been nothing entered against the relevant point at Sl.No.14 of the PPO for payment of Fixed Medical Allowance by the Bank. It is also submitted that the applicant had not produced this part of the PPO at Annexure A-1 in the O.A filed by him and he has, thus, approached the Tribunal with unclean hands. However, it is admitted by the respondents that due to an inadvertent mistake, the bank branch had disbursed the FMA from May 2008 and that the same had been continued till October 2016. In October 2016, however, when the audit was done by the CPAO of the Government of India (3 rd respondent), it was detected that an erroneous payment was being made and the recovery of the same was advised. It was only under these circumstances that the bank issued the Annexure A-2 notice to the applicant intimating about the excess payment and the proposed recovery. It is also submitted that there is no illegality or irregularity in issuing the Annexure A-2 notice. Later when the applicant gave the representation at Annexure A-3, the bank had replied to him explaining the position vide letter dated 07.12.2016 produced at Annexure R-4(b). Finally, after the matter was once -7- again taken up by the applicant with the concerned authorities in the Government of India, a Special Seal Authority was received by the bank from the competent authority on 21.12.2017 for revision of the PPO, a copy of which has been produced at Annexure R-4(c). This authority issued by the CPAO to the SBI dated 21.12.2017 has allowed FMA to be paid to the applicant at the rate of Rs.500/- with effect from 27.02.2017 to 30.06.2017 and at the rate of Rs.1000/- with effect from 01.07.2017. As soon as the bank received these orders in January 2018, an amount of Rs.8036/- was paid as arrears. The bank is continuing to pay the FMA ever since that time.
6. It is submitted in the reply that the bank can act only in accordance with the orders issued by the Pension Sanctioning Authority. The bank, as a Pension Disbursing Agency, has been paying pension to lakhs of pensioners and, sometimes, mistakes in calculation and disbursal of pension occur in individual cases. It is submitted that if the bank is not permitted to recover such excess payments it would severely affect public interest as a chain reaction as precedent. Further, it is submitted that the bank had been authorized by the pensioner/applicant to make recovery of any excess payment made to him. In this connection, a Letter of Undertaking executed by the pensioner/applicant has been produced at Annexure R-4(d). It is also submitted that the Hon'ble Supreme Court in High Court of Punjab & Haryana & Ors. v. Jagdev Singh, AIR 2016 SC 3523 has held that the authorities can recover the excess payment made to an employee on the basis of the undertaking executed by them. Thus, it is submitted that the applicant is bound by the terms of Annexure R-4(d) undertaking and he cannot challenge the recovery proceedings initiated by the respondent bank -8- for recovering the excess payment made to him. It is reiterated that the respondent being only a Pension Disbursing Agency has to act as per the orders of the competent sanctioning authority and cannot go beyond the pension payment orders issued by the competent authority.
7. It is also submitted in the reply that the law laid down by the Hon'ble Supreme Court in Rafiq Masih (supra) is not applicable in the given facts and circumstances of this case. It is submitted that in Rafiq Masih (supra) the Hon'ble Supreme Court had considered an issue regarding the recovery of excess payment made by an employer to an employee and had laid down certain parameters to be considered while recovering the excess payment made to an employee. However, it is submitted that in this matter there is no 'employer-employee' relationship between the applicant and the bank and, thus, that the dictum laid down by the Hon'ble Supreme Court in Rafiq Masih (supra) is not applicable. On the other hand it is submitted that the relationship between the applicant and the bank is a 'customer-banker' relationship and, hence, by virtue of Section 171 of the Indian Contracts Act, the bank has got a right to exercise lien for the account of the applicant. The O.M issued by the DoP&T following the Rafiq Masih (supra), which is produced at Annexure A-20 by the applicant, is not therefore applicable in the facts and circumstances of the case. Since the bank can act only in accordance with the orders issued by the Pension Sanctioning Authority it can only take steps as per the authority granted; as in Annexure R-4(c), which has allowed the applicant to draw FMA with effect from 27.02.2017 onwards. The bank has accordingly paid the FMA with effect from 27.02.2017 in compliance to this authority. Further, the pension sanctioning -9- authorities/disbursing authorities are also duty bound to recover any amount received by the applicant without an authority of law, as per the judgment of the Hon'ble Supreme Court in Chandi Prasad Uniyal vs. State of Utharakhand, 2012 (8) SCC 417. Other decisions cited and relied on by the applicant are, therefore, out of context and not applicable to the factual matrix of the case. It is submitted that the Reserve Bank of India (RBI) has also issued orders vide Annexure R-4(e) that recovery from the pensioners may be effected as per the procedure laid down.
8. Learned counsel for the official respondents at Sl.Nos.1-3 has filed a separate reply statement. It has been accepted by the respondents that the 4 th respondent (CPPC/SBI) had issued a direction to recover the excess payment amounting to Rs.33780/- for the period October 2008 to October 2016, which had been paid without authority to the applicant. The recovery was made at the rate of Rs.3071/- for 11 months, starting from November 2016. It is also accepted that the officials of the CPAO (3 rd respondent), while conducting audit, had raised an objection to the payment of FMA to the applicant. The SBI, Thiruvankulam Branch, Ernakulam, being the pension disbursing agency, had therefore, taken necessary steps for the recovery. Instead of overburdening the applicant, the bank had decided to recover the stated amount of Rs.33780/- in equal instalments over 11 months. It is also submitted that the applicant in his letter dated 27.02.2017, produced at Annexure A-7, had accepted only then that he had not opted for CGHS and is entitled for FMA. Thus, this letter indicates that before his admission on 27.02.2017, the applicant had not intimated the pension sanctioning authorities about the non availability of CGHS coverage in the -10- area that he was staying after his retirement. It is clear that he had not reported this fact to the pension authorities under the relevant rules, which is a failure on his part. The audit objection which had arisen is, therefore, valid and operative and FMA cannot be claimed with retrospective effect as a matter of right. The respondents are duty bound to act according to the rules.
9. It is further submitted that in response to the representation by the applicant dated 27.02.2017 produced at Annexure A-7, the 2 nd respondent (Pay & Accounts Officer, Department of Legal Affairs) had considered the request of the pensioner/applicant in light of relevant O.M's of Department of Pensions & Pensioners' Welfare, Government of India, (DoP&PW) dated 19.12.1997, 30.12.1998 and 19.11.2014, produced along with the reply statement at Annexure R-1, Annexure R-2 and Annexure R-3 respectively. After examination the necessary authorization was then issued to grant the FMA with effect from 27.02.2017, ie., from the date of request made by the applicant. It is submitted that paragraph 3 of the O.M dated 19.12.1997 (Annexure R-1) and paragraph 6 of the O.M dated 30.12.1998 (Annexure R-2), clearly indicate that existing pensioners, as well as the about to be future retirees, have to exercise an 'One Time Option' to the effect that they will not be enroling for the facilities under CGHS in order to avail the FMA. The subsequent O.M dated 19.11.2014 at Annexure R-3 is only a continuation of the existing ones. Thus, it is submitted that in the present matter, the applicant/pensioner has exercised his option to get FMA only after action was taken for recovery of FMA drawn earlier, as the same was objected to by audit authorities since they had found that the disbursing -11- bank had paid the same without authorization. The authorities having found that the payment was a mistake, took action to recover the excess amount paid. Thus, the applicant has no right to claim FMA from the date of retirement since he had not exercised the Option at that time. As soon he exercised his Option vide letter dated 27.02.2017 (Annexure A-7), the Pension Payment (Sanction) Authority authorized the FMA with effect from the date of application. The Authority has thus considered the grievance under the relevant rules and, as such, the Government Order arising out of the Rafiq Masih (supra) case at Annexure A-20 dated 02.03.2016, has no relevance in this context.
10. These issues have been considered and I have also heard Shri.C.S.G.Nair, learned counsel for the applicant, Shri.C.Rajendran, learned SCGC for Respondent Nos.1-3 and Shri.B.S.Syamanthak, learned counsel for Respondent Nos.4-5. At the end of the day it is the applicant's contention that it was a lapse on the part of the authorities, particularly on the part of the 2nd and 3rd respondents, in not making necessary entries in the PPO, for which he cannot be punished at this stage. He, having retired at the level of Senior Peon, was not expected to be aware of the technicalities needed like taking his Option etc., for drawing the FMA. Further, learned counsel points out that the applicant has not received any amount in excess to which otherwise he would not have been legally entitled if he had completed the required formalities at the time of his retirement. On the other hand, the recovery made by the bank to the extent of Rs.33780/- from his pension is illegal and does not stand on any ground. It is contended that, pursuant to the judgment of the Hon'ble Supreme Court in Rafiq Masih -12- (supra), the Government had issued the O.M prohibiting recovery from pension at Annexure A-20. It is purely because of the illegal recovery action taken by the respondents that the applicant was forced to appear before the Tribunal. In addition to this during the oral arguments learned counsel for the applicant submits that the reliance by the Respondent Nos.4- 5 (SBI) on strictly and mechanically following the Letter of Undertaking given by the applicant at the time of payment of pension under PPO No.314380800201 cannot be accepted. This is particularly underpinned in the light of the Orders by the Hon'ble High Courts of Madhya Pradesh, Chhattisgarh and Punjab & Haryana and which have been produced by him. It is submitted that these orders have been passed by the respective Hon'ble High Courts after taking into consideration the orders of the Hon'ble Supreme Court in Jagdev Singh (supra). In W.P.Nos.5937/2016 & 13828/2016 - Rajendra Prasad Pandey v. the State of M.P & Ors. and Mohd. Shahid v. State of M.P & Ors., the Hon'ble High Court of Madhya Pradesh on 06.02.2018, after elaborately discussing the judgment of the Jagdev Singh (supra), had noted in that matter that the undertaking said to be given was in a proforma that simply mentions refund of over payments if any made on account of incorrect fixation. It was found that the undertaking is a part of proforma and it is well known that the persons belonging to lower posts put signatures on such undertakings without application of mind. In these circumstances, the Hon'ble High Court of Madhya Pradesh was of the considered opinion that cases of the appellants were required to be dealt with in accordance with the law laid down by the Apex Court in the case of Rafiq Masih (supra). Further, in the case of Shankar Narayan Chakrawarty vs. State of Chhattisgarh & Ors., in -13- W.P.(S) No.9716/2019 the Hon'ble High Court of Chhattisgarh on 30.01.2020 had also indicated that the ratio of judgment of Jagdev Singh (supra) would not be applicable to the case of the petitioner therein. It was indicated that the ratio decidendi when applied would show that the principles laid down in case of Rafiq Masih (supra) would be applicable to the facts of the case instead the case of Jagdev Singh (supra), which is particularly with reference to a special service rule and that the execution of the undertaking which was in its inception herein would not be applicable. It was indicated in paragraph 8 of the judgment as follows :
"8. Therefore, the ratio of judgment rendered in case of State of Punjab & Ors. vs. Rafiq Masih (supra) would be applicable. To conclude, it is observed that the undertaking given by an employee cannot be used uniformly when the recovery of dues is done after his retirement or otherwise there cannot be a straight jacket formula for such recovery. Rather, the execution of undertaking, the time when it was executed would be relevant factors to evaluate whether the State can be allowed to act upon on such undertaking. In the facts of this case, the undertaking given by the petitioner in the year 2017 cannot be allowed to stand to recover the dues for the payment made from 1986 to 2013."
11. Learned counsel for the applicant also points out that similarly, in a case relating to the Hon'ble High Court of Punjab & Haryana at Chandigarh, in the matter of S.S.Guraya vs. Union of India & Ors., in C.W.P.No.23915/2015, decided on 17.03.2017, it was found that the undertaking given in that matter was general in nature and not specific. It was found that there was no evidence produced on record or pointed out in the letter dated 15.03.2017 in that matter that the petitioner had given an undertaking in the year 1985 or at any time that excess payments credited into pensioner account can be recovered by the bank. It was found that no -14- such evidence has been produced before this Court to apply the principle of Jagdev Singh's case (supra) which is distinguishable on facts. In any case it was also laid down that it is far too long a time to lay a surprise on the 3 of 5 complacent petitioner who retired 33 years ago for sustaining recovery from pension. It was found that even the State cannot recover money after 30 years in view of article 112 of the Schedule to the Limitation Act, 1963 which bars the State from recovery of money after 30 years. It was found therefore in that matter that the direction (v) in Rafiq Masih's case (supra) clearly comes to the aid of the petitioner. The Hon'ble Supreme Court had carved an exception holding that, 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 then even the thought of recovery is ruled out. It was pointed out in the judgment that in Jagdev Singh (supra), the High Court employee had retired in 2003 and recovery was effected early from 2004 onwards and that is how the employee was pinned down to his undertaking given in the pension papers duly signed. Hence the letter dated 15.03.2017 in the matter was quashed to the extent it was adverse to the interest of the petitioner.
12. Drawing from the ratio decidendi in the above cited cases, learned counsel for the applicant seeks to establish that an Undertaking given by a pensioner/Government employee, even if available, cannot be mechanically or strictly applied in every case to aid recovery from salary/pension. It has to be viewed in the given facts and circumstances of the case, as well as in the nature of the relationship between the employer and the employee. The -15- length of time since the undertaking was given is also a relevant consideration. In this matter I find that the undertaking given by the applicant/pensioner to the bank, produced along with the reply statement of the Respondent Nos.4-5 at Annexure R-4(d), was signed on 31.05.2008. It appears that as per proforma indicated, the applicant/pensioner had agreed and undertaken to refund or make good any amount to which he was not entitled or any amount which had been credited to his account in excess of the amount to which he is/would be entitled. To me it appears that this Letter of Undertaking submitted by the applicant/pensioner to the bank is in a standard prescribed format, taken by the pension disbursing bank, before crediting the pension in the account. Perhaps, such an undertaking has to be signed by all pensioners before drawing pension from the bank which holds the pension account. As observed it is difficult to justify the legality of the recovery in this matter from the facts and circumstances based purely on this undertaking signed as it is signed with a pension disbursing authority and not with a pension sanctioning authority who provides the pension to the bank for disbursal.
13. I also find that there is also some justification in the view taken that the FMA which was paid to the pensioner without it being formally approved and indicated in the original PPO order can be termed as an error of omission. The FMA can be seen as otherwise legally due to him considering that he seems to not have claimed benefits under the CGHS or any other health scheme in force, as it has not been brought out by the respondents in their reply statements or otherwise to the effect that the applicant/pensioner was either a CGHS beneficiary or had been taking -16- benefits under some other health scheme. Thus, I would term it a involuntary omission on his part with much greater responsibility for the error on the Respondents at Sl.Nos.1, 2 & 3, that the formal Option to draw FMA in lieu of CGHS facilities was not taken from him at the time of retirement under the Annexure R-1 and Annexure R-2 rules. At the end of the day the applicant was a retired Senior Peon and was not expected to be conversant with all the rules and formalities. The responsibility for this thus largely lies with the Respondent Nos.1, 2 & 3 rather than the applicant/pensioner. This also has to be considered in the light that there has been no deliberate misrepresentation on the part of the pensioner/applicant when drawing the FMA. The disbursing bank too appears to be not having a system in place at that time to check whether the PPO entitled him to draw the FMA. Thus, whether it is justified that the pensioner/applicant must suffer recovery at this late stage after so many years is the moot question.
14. I find that the orders of the Hon'ble Supreme Court in Rafiq Masih (supra) are quite relevant in this matter given the above circumstances. Further, as indicated by the Government of India in the DoP&T's O.M dated 02.03.2016 (produced at Annexure A-20) there are some situations that the Hon'ble Supreme Court had identified in Rafiq Masih (supra) which appear to cover this matter. At paragraph 4 (ii) of the O.M dated 02.03.2016 it is noted that the recovery from retired employees, or employees who are due to retire within one year of the order of recovery would be impermissible in law. Further, recovery from employees where the excess payment has been made for a period in excess of five years before the order of recovery is -17- issued is also not permitted. Most importantly, at paragraph 4 (v), it is noted that if 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 for outweigh the equitable balance of the employer's right to recover the same is also impermissible in law. I find that the facts and circumstances in this matter are covered under these conditions in the O.M. It is quite iniquitous or harsh for the recovery to have been made on this low level pensioner, after such a long period. Moreover, the applicant/pensioner from all indications has not drawn anything which otherwise not entitled to him, if he had submitted the required option before retirement. Like earlier indicated, it was only a technical error which attracted an audit objection by the CPAO which led to the recovery. It also appears that the same DoP&T O.M allows Ministries to deal with the issues of waiver of the so called wrongful/excess payment made to the Government servants. I find that this is a fit case for consideration by the authorities under the O.M produced at Annexure A-20 for the waiver/refund of recovery as in fact in this case the recovery has already been made and the issue that remains is only for refunding the amount. I would also agree broadly with the position of learned counsel for the applicant that any undertaking given has to be viewed in the facts and circumstances of the particular matter and whether the recovery so made would be iniquitous or harsh or arbitrary. As noted this position has been outlined the orders of the Hon'ble High Courts earlier cited, who had taken into consideration the orders of the Hon'ble Supreme Court, both in Rafiq Masih (supra) as well as Jagdev Singh (supra).
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15. In view of the above, I, therefore, direct the concerned authority, particularly, the Respondents at Sl.Nos.1, 2 & 3 to take steps for following the provisions given in the O.M produced at Annexure A-20 and approve refund of the amount of Rs.33780/- to the applicant by the Bank, along with interest to be paid to him as per the prevailing long term Fixed Deposit rates at that time. This exercise should be completed by them within a period of three months from the date of receipt of a copy of this order. Further, I direct that if no orders are passed within the period of three months by the Respondents at Sl.No.1, 2 & 3, the respondent Bank (at Serial No.4 & 5) should in any case refund the amount recovered by them to the pensioner. The bank may also pay interest at the rate applicable for long term Fixed Deposits prevailing at the time the recovery was made for the intervening period from the date of the recovery till the date of refund of the same. Of course, the bank is at liberty to claim this amount paid from the Pension Sanctioning Authorities after crediting into the account of the applicant/pensioner.
16. The O.A is accordingly disposed of with the above directions. There shall be no order as to costs.
(Dated this the 25th day of May 2022) K.V.EAPEN ADMINISTRATIVE MEMBER asp -19- List of Annexures in O.A.No.180/00722/2018
1. Annexure A-1 - A copy of the Pension Payment Order No.314380800201.
2. Annexure A-2 - A copy of the letter dated 15.11.2016 issued by the 4th respondent.
3. Annexure A-3 - A copy of the representation dated 30.11.2016.
4. Annexure A-4 - A copy of the letter No.F.155-Ad/AT/PIT/Coch/2016 dated 06.12.2016 issued by the 1st respondent.
5. Annexure A-5 - A copy of the letter No.DGM/BOC/CPCC dated 07.12.2016 issued by the 4th respondent.
6. Annexure A-6 - A copy of the 15th page of PPO.
7. Annexure A-7 - A copy of the representation dated 27.02.2017 to the 2nd respondent.
8. Annexure A-8 - A copy of the letter No.F.155-Ad/AT/PIT/Coch/2017 dated 27.02.2017 issued by the 1st respondent.
9. Annexure A-9 - A copy of the letter No.F-1177/PAO-LA/2016-17 dated 10.04.2017 issued by the 2nd respondent.
10. Annexure A-10 - A copy of the letter CPAO/AI/2017/Vol. dated 19.09.2017 issued by the 3rd respondent.
11. Annexure A-11 - A copy of the letter No.F.155- Ad/AT/PIT/Coch/2017 dated 10.08.2017 addressed to the 3 rd respondent by the 1st respondent.
12. Annexure A-12 - A copy of the letter No.F.155- Ad/AT/PIT/Coch/2017 dated 23.10.2017 addressed to the 2 nd respondent by the 1st respondent.
13. Annexure A-13 - A copy of the letter No.PAO-LA/1177/2017-18 dated 30.11.2017 issued by the 2nd respondent.
14. Annexure A-14 - A copy of the Pension Slip for the month of November 2016 issued by the 5th respondent.
15. Annexure A-15 - A copy of the Pension Slip for the month of August 2017 issued by the 5th respondent.
16. Annexure A-16 - A copy of the Pension Slip for the month of September 2017 issued by the 5th respondent.
17. Annexure A-17 - A copy of the Pension Slip for the month of December 2017 issued by the 5th respondent.
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18. Annexure A-18 - A copy of the Pension Slip for the month of January 2018 issued by the 5th respondent.
19. Annexure A-19 - A copy of the Pension Slip for the month of February 2018 issued by the 5th respondent.
20. Annexure A-20 - A copy of the O.M.F.No.18/03/2015-Estt.(Pay-1) dated 02.03.2016 issued by the Ministry of Personnel, Public Grievances and Pension.
21. Annexure R-4(a) - A copy of the Pension Payment Order PPO No.314380800201.
22. Annexure R-4(b) - A copy of the reply dated 07.12.2016 issued by the Centralized Pension Processing Centre of State Bank of Travancore.
23. Annexure R-4(c) - A copy of the Special Seal Authority for Revision dated 21.12.2017.
24. Annexure R-4(d) - A copy of the undertaking executed by the applicant.
25. Annexure R-4(e) - A copy of the Circular No.RBI/2015-16/340 dated 17.03.2016.
26. Annexure R-1 - A copy of the Office Memorandum No.45/57/97- P&PW(C) dated 19.12.1997.
27. Annexure R-2 - A copy of the Office Memorandum No.45/57/97- P&PW(C) dated 30.12.1998.
28. Annexure R-3 - A copy of the Office Memorandum No.45/57/97- P&PW(C) dated 19.11.2014.
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