Central Administrative Tribunal - Ernakulam
Pushpavally @ Pushpa K vs The General Manager Southern Railway Hq ... on 17 November, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/0142/2020
Thursday, this the 17th day of November, 2022
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
Smt. Pushpavally @ Pushpa K
Aged 63 years, W/o. Krishnan T.
Thunnarukandi House, Ariyallur
Malappuram-676312. Ph: 9539910025 - Applicant
[By Advocates : M/s.Varkey & Martin]
Versus
1. Union of India represented by the General Manager
Southern Railway, Park Town P.O., Chennai-600003.
2. The Senior Divisional Finance Manager
Southern Railway, Palghat Division, Palghat-2.
3. The Assistant General Manager, Vijaya Bank
(Now Bank of Baroda) CPPC-CBD HQ
41/2 M.G. Road, Bangalore-560001.
4. Branch Manager, Vijaya Bank
(Now Bank of Baroda) Chalapuram
Calicut-673002. - Respondents
[By Advocate : Mr.S.R.K.Prathap, ACGSC for R1 and R2
Mr.Leo George for R4]
The application having been heard on 15.11.2022, the Tribunal on
17.11.2022 passed the following:
O.A.142 of 2020 2
ORDER
The short point arising for consideration in this Original Application is whether the respondents 3 and 4 are justified in proceeding against the family pension granted to the applicant for realising the excess payment made to her husband, in enforcement of the Banker's lien.
2. The applicant Pushpavally @ Pushpa is the widow of Krishnan T, a Railway employee, who retired on superannuation on 30.4.2006. He was granted pension under Annexure-A1, which stood revised from time to time. He died on 5/8/2018. Therefore, from 6/8/2018 onwards, the applicant is entitled to get family pension. The pension was being disbursed through the respondents 3 and 4 bank. When deley occured in granting the family pension, enquiries were made and then by Annexure- A2 order it was informed that the delay was due to a mismatch in the name and also that an amount of Rs.1,39,502/- was paid in excess to Krishnan towards Fixed Medical Allowance for the period from 1/7/2006 to 5/8/2018, which had to be adjusted. In Annexure-A2 communication, mention is also made about Annexure-A3 guidelines issued by the Reserve Bank of India on the recovery of excess payments made to pensioners. On getting Annexure-A2 communication the applicant caused to issue Annexure-A4 lawyer notice, which was not responded. Thus the applicant has approached this Tribunal seeking a declaration that she is entitled to receive family pension with effect from 6/8/2018 succeeding the date of O.A.142 of 2020 3 death of her husband and to direct the respondents to disburse the amount withheld, alleging over payment made to the pensioner.
3. On behalf of the respondents 1 and 2, the 2nd respondent filed a reply stating that the applicant is entitled for ordinary family pension of Rs.9,870/- with dearness relief with effect from 6/8/18, that Vijaya Bank, now Bank of Baroda is the pension disbursing Bank. According to them, they have not issued any communication regarding the over payment of pension made to Sri.Krishnan and recovery thereof, to the respondents 3 and 4. They have also averred that the applicant's husband had opted to avail Out Patient Department facilities instead of Fixed Medical Allowance. They also produced copy of the option given by Krishnan opting for Out Patient Department medical facility from Railway Hospitals/Health Units/Lock-up dispensaries. To their knowledge, the bank has paid pension arrears on 15/10/2019 vide Annexure-A2 communication.
4. On behalf of respondents 3 and 4 the Chief Manager of Bank of Baroda filed a reply stating that Krishnan was paid excess amount of Rs.1,39,502/- towards Fixed Medical Allowance for which he was not entitled. According to them, the deley occurred in disbursing the family pension was due to mismatch in the name of the applicant. On getting Annexure-R4(b) 'One and Same Certificate' that doubt was cleared and steps were initiated for disbursing the family pension. An amount of Rs.1,51,497/- is due to the applicant as family pension from 6/8/2018 till September 2019 which has already been credited in her account. But the O.A.142 of 2020 4 bank has a lien over Rs.1,39,502/- paid it excess to Krishnan which they are entitled to enforce in the light of Annexure-R4(e) undertaking given by Krishnan and Annexure-R4(f) undertaking given by the applicant. According to them, by virtue of Annexure-R4(g)/A3 communication of the Reserve Bank of India which has been reiterated by the Ministry of Finance through Annexure-R4(h), the bank is entitled to recover an amount of Rs.1,39,502/- over which it has a lien. So they prayed for dismissing the application.
5. I heard the learned counsel on both sides. According to the learned counsel for the applicant, family pension is not an intestate property of the pensioner and therefore the respondents are not entitled to effect any recovery, even assuming that excess payments were made to the deceased pensioner. In this connection, the learned counsel produced copy of orders passed by this Tribunal in O.A.358/2014 and O.A.526/2013.
6. According to the learned Standing Counsel for the respondents 1 and 2, deceased Krishnan was paid excess payment towards Fixed Medical allowances despite the fact that he did not opt for the same. Relying on the decision in Chandi Prasad Uniyal and others v. State of Uttarakhand and others [(2012) 8 SCC 417] and inviting my pointed attention to paragraph 16 of the judgment he said that the amount paid in excess, without any 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, O.A.142 of 2020 5 otherwise it would amount to unjust enrichment. According to the learned counsel it is public money which is liable to be recovered. According to him, in view of the fact that specific undertaking was given by the pensioner, the decision in State of Punjab and others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] is not applicable.
7. The learned counsel for the respondents 3 and 4 supported the arguments of the learned Standing Counsel for the respondents 1 and 2. According to him, Annexure-R4(e) undertaking given by deceased Krishnan is very clear by which he binds himself and his successors, executors and administrators to indemnify the bank from and against any loss suffered or incurred by the bank in so crediting his pension in his account. According to the learned counsel, the family pension due to the applicant has already been credited in her account but the bank has exercised lien over Rs.1,39,502/- which is due to it. It is an exercise of right under the Contract Act completely falling within the domains of the Contract Act. If the applicant has any right over the same, she should approach the civil court for recovering the same. Therefore, the exercise of right under the Banker's lien cannot be called in question. Even though Annexure-R4(c) communication was given with all details, intimating the excess payment made to her husband, no reply has been sent.
8. The facts are not in dispute. On the demise of the pensioner namely Krishnan, the applicant, the widow is entitled to get family pension at the rate fixed by the respondents 1 and 2. The revised family pension is O.A.142 of 2020 6 Rs.9,870/-, besides the dearness relief fixed from time to time. The applicant is entitled to get family pension with effect from 6/8/2018, the day following the death of her husband.
9. The philosophy of grant of family pension to a window need not be over emphasised. It is trite that pension is a property, which right cannot be taken away without due process of law as provided under Article 300A of the Constitution. In State of Jharkhand and others v. Jitendra Kumar Sreevasthava and another, [AIR 2013 SC 3383] the Supreme Court has made clear that any attempt to take away a part of pension or gratuity etc. without any statutory provision under the umbrage of administrative instructions cannot be countenanced.
10. In Poona Mal (Smt.) v. Union of India [AIR 1985 SC 1196], the Supreme Court has held that where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and dependent minors will equally be entitled to get the family pension as a matter of right. Similarly, as pointed out by the learned counsel for the applicant, the family pension is not a disposable asset in the hand of the deceased during his lifetime and could not be disposed of by the Will of the deceased. In Jodh Singh v. Union of India [AIR 1980 SC 2081] the Supreme Court has held as follows:
"Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever O.A.142 of 2020 7 form part of the estate of the diseased. If it did not form part of the estate of the diseased it could never be the subject matter of testamentary disposition."
The said proposition equally applies in the facts of the case. Here it is true that the deceased pensioner had not opted for Fixed Medical Allowance. But by a mistake he was paid such an allowance for the period from 1/7/2006 to 5/8/2018. While so, he died and automatically, by virtue of the operation of law, by virtue of her status, the applicant has become entitled to get family pension. The family pension due to her is the self acquired property which cannot be proceeded against for the amounts due from her deceased husband.
11. In my assessment, even in ordinary parlance, it is strange to contend that the asset of the applicant is liable to be proceeded against for the amounts due from her husband. If amounts are due to the bank, it is open to them to proceed against the property, if any, inherited by the wife and children and not against the self acquired property of the wife. Here the situation is worse. Family pension is granted to the wife by virtue of her status and no law permits to lay hands on her asset in the guise of enforcement of Banker's lien.
12. It is true that Annexure-R4(e) undertaking was given by the deceased pensioner but that cannot work against the family pension of the applicant. That undetaking cannot be stretched to enforce the Banker's lien against the applicant. Here the respondents 3 and 4 are intermediaries acting as the agents of respondents 1 and 2. There is no privity of contract O.A.142 of 2020 8 between the bank and the applicant so that, in the factual situation, Banker's lien cannot be enforced against her. If at all the bank has suffered any loss in the transaction, they have to work out their remedy under Section 222 or 223 of the Contract Act. Instead, it is inequitous to drive the applicant to the Civil Court.
13. It is not known as to how Annexure-A3/R4(g) or R4(h) would salvage the position of the respondents. Such instructions were issued by the Reserve Bank of India for recovering excess payments made to the pensioners. By the communication, a uniform procedure has been laid down as shown below:
"a) As soon as the excess/wrong payment made to a pensioner comes to the notice of the paying branch, the branch should adjust the same against the amount standing to the credit of the pensioner's account to the extent possible including lumpsum arrears payment.
b) If the entire amount of over payment cannot be adjusted from the account, the pensioner may be asked to pay forthwith the balance amount of over payment.
c) In case the pensioner expresses his inability to pay the amount, the same may be adjusted from the future pension payments to be made to the pensioners for recovering the over-
payment made to pensioner from his future pension payment in instalments 1/3rd of net (pension relief) payable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher instalment amount.
d) If the over payment cannot be recovered from the pensioner due to his death or discontinuance of pension then action has to O.A.142 of 2020 9 be taken as per the letter of undertaking given by the pensioner under the scheme."
(emphasis supplied) Here, it seems that the bank has been invigorated by the last clause. But, as already stated, it is illegal to proceed against the property of another for the amounts due from the deceased even if the former is the wife. The bank can, no doubt, proceed against the prperty inherited from the deceased and family pension does not fall in that category. The above communication in no way enables the respondents to deviate from the general law and proceed against the applicant for the amounts due to them from the deceased pensioner.
14. To sum up, the course adopted by the respondents 3 and 4 is illegal and unsustainable. It cannot stand judicial scrutiny. Therefore, the respondents 3 and 4 are directed to refund an amount of Rs.1,39,502/- to the applicant within one month from today with interest at the rate of 12% per annum from the dates the amount became due. It is made clear that this order will not stand on the way of the bank adopting common law remedy for recovering the amount due from the deceased pensioner.
The Original Application is allowed with cost, payable by respondents 3 and 4.
Dated 17th November, 2022 JUSTICE K.HARIPAL JUDICIAL MEMBER ds O.A.142 of 2020 10 Applicant's Annexures Annexure A1: True copy of the pension payment order. Annexure A2: True copy of the letter Ref No.HO/GBD/CPPC/TSK/97/2019 dated 19.10.2019 Annexure A3: True copy of the circular No.RBI/2015-16/340 dated 17.03.2016 Annexure A4: True copy of the lawyer notice dated 04.11.2019 Respondents' Annexures Annexure R1- True Copy of Pension Payment Order dated.01.05.2006 Annexure R2- R 2/2 True Copy of 7th CPC revised Pension Payment Order dated 27.11.2017 Annexure R3- True Copy of option submitted by the late employee opting for Out Patient Department facilities dated.21.04.1999. Annexure R4(a): A true copy of Pension Payment Order in respect of Sri. Krishnan. T dated 01.05.2006.
Annexure R4(b): A true Copy of the One And the Same Certificate in respect of the Applicant issued by the Thahsildar Tirurangadi dated 06.08.2019.
Annexure R4(c): A true Copy of the Communication issued by the Third Respondent to the Applicant along with enclosures dated 19.10.2019.
Annexure R4(d): A true copy of the communication issued by the Assistant Divisional Finance Manager Palakkad dated 14.02.2020. Annexure R4(e): A true copy of the Letter of Undertaking executed by Sri. Krishnan.T in favour of the Erstwhile Vijaya Bank Annexure R4(f): A true copy of the Letter of Undertaking executed by the Application in favour of the Erstwhile Vijaya Bank. Annexure R4(g): A true copy of circular bearing No. DGBA GAD.No.2900/45.01.001/2015-16 2016 issued by the Reserve Bank Of India dated 17.03.2016 Annexure R4(h): True copy of Office Memorandum issued by Ministry of Finance Government Of India bearing No. CPAO/IT&Tech/SCOVA/20(Vol-1)/2018- 19/26 dated 16.05.2018