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Judgment
S.K. Mishra, J.
W.P.(C) Nos. 9028, 7699, 7698, 7811, 7812, 7813, 7814, 7815, 7816, 7817, 7818, 7819, 8386, 8387, 8388, 9718, 9903, 9904, 9906, 9908, 9909, 9910, 9912, 9913, 9914, 9923, 9924, 9928, 9929, 9931, 9932, 9933, 9943, 9953, 9954, 9955, 9957, 9964, 9971, 10592, 10593, 10594, 8519, 11621, 13577, 14543, 14544, 14545, 14546 & 14547 of 2010.
Heard Learned Counsel for the Petitioners & Learned Counsel for the Opp. Parties. In these bunch of Writ Petitions, retired employees working in the Energy Sector have assailed the orders passed by their respective employers for revision of commuted value of pension which is already granted to them & recovery of the same as "excess payment".
The employees, as workmen of the NESCO & WESCO, who have retired from service, at the time of retirement have commuted a portion of their pension, which is being recovered from them. When Opp. Parties claiming that excess payment has been made have issued orders for cancellation of commutation & recovery of the same.
Pursuant to tripartite settlement arrived at between the management of various unions & the Joint Labour Commissioner, Bhubaneswar, the existing scale of pay of the Petitioners were revised in the line of 6th Pay Commission Report. The companies are established by the State Government & are governed by the Government of Orissa Act & Rules. It is also pleaded that the companies (power distributing companies) are governed by various Government policies adopted by the Finance Department. At the same time, the distributing companies are governed by the Companies Act & Rules made thereunder as well as the Labour Acts & Rules.
Pursuant to the decision taken by the Management of different companies, the Management adopted the revision of pension & family pension of post 2006 pensioners/family pensioners. Accordingly, the Petitioners were getting revised pension. As per the specific orders passed in each case by the Management the Petitioner in each case got revision of commuted value of pension.
However, the cause of action arose when the Opp. Parties took a decision that the revised pension shall be withdrawn. The Petitioners have made several representations, but to no effect. The Opp. Parties relying on the Finance Department Notification No. 45319 (270) & OPTCL Letter No. 18795 dated 24.10.2009 gave clarification to the Petitioners to the effect that the cancellation of commuted value of pension has been done as per the Government of Orissa Finance Department Order No. 45391 (270) & the aforesaid letter issued by the OPTCL. Therefore, the Petitioners challenge the action of the Opp. Parties seeking direction to the Opp. Parties not to cancel the order in connection with revision of commuted value of pension & not treat the commuted value of pension issued in favour of the Petitioners as "excess payment."
It is not disputed by the Opp. Parties that the Petitioners were employees of the Companies. It is also not disputed that the Petitioners come under the category of non-executive employees & as per the settlement arrived at between the representatives of the Unions & the Management before the Conciliation Officer-Cum-Joint Labour Commissioner, Bhubaneswar, the revision of salary in respect of non-executive employees was effected from 1.4.2005 & the benefits accruing out of such revision of salary were extended to the Petitioners. The pay revision was made in pursuance of the 6th Pay Commission Report.
Pursuant to revision of pay scale, the OPTCL Issued Office Order No. AW-Pen-I-09/2009-9414 dated 18.6.2009 relating to adoption of the revision of pension & family pension of post 2006 pensioners/family pensioners which was adopted by the Opp. Parties as per their decision. At Clause-9 of the said scheme, the commutation of pension has been mentioned, which reads as follows :-
Commutation of Pension
As per Rule 5(1) of OCS (Commutation of Pension Rules, 1992, an employee/worker on retirement is entitled to commute for a lump sum payment of fraction not exceeding 1/3rd of his pension which is calculated in accordance the prescribed table of value. Now, as per the revised pension, an Employee/worker shall be entitled to commute for a lump sum payment up to 40% of his pension w.e.f. 1.12.2008. The existing table of commutation value for pension shall be substituted by a new table as at annexure-1 of this order. The provisions of Rule 5 of OCS (Commutation of Pension) Rules, 1992 shall stand modified to this extent.
As per Rule 7(1) of OCS (Commutation of Pension) Rules, 1992, the pensioner who have commuted a portion of their pension were entitled to have the commuted portion of their pension restored on the expiry of 12 years from the date on which the amount of pension was reduced on account of commutation of a portion thereof. Now, as per the revised provision, the commuted portion shall be restored on the expiry of 15 years from the date on which the amount of pension was reduced on account of commutation w.e.f. 1.12.2008. The provision of Rule-7 OCS (Commutation of Pension) Rules, 1992 shall stand modified to this extent. The employees/workers who have retired prior to 1.12.2008, the period of restoration of commuted portion of their pension shall be on the expiry of 12 years as per the pre-revised provision of Rule 7 of the OCS (Commutation of Pension) Rules, 1992.
The Opp. Parties plead that the Order Dated 11.8.2009 indicates that workers, who have retired within 1.4.2005 to 31.12.2005 shall also be guided by the order & revision of pension/family pension of non-executives w.e.f. 1.1.2006 & gratuity & commutation of pension w.e.f. 1.12.2008 shall be made in the manner indicated in the clauses of the order. Though the order was free from any ambiguity & had clearly mentioned that revision of pension/family pension was to be given effect from 1.1.2006 & gratuity & commutation of pension was to be given with effect from 1.12.2008 in the manner indicated in the order but due to misinterpretation on the part of the Opp. Party-company the Order Dated 16.12.2009 was erroneously passed without realizing the fact that the order provided for revision of pension/family pension but there was no revision of gratuity & commuted pension till 1.12.2008.
The Opp. Parties further pleaded that subsequent to passing of erroneous order, it came to notice to the Opp. Parties that Finance Department of the Government of Orissa has issued a circular bearing No. 45391 (270) dtd. 8.9.2009 clarifying the various doubts, which had been expressed in different quarters relating to certain provisions of its earlier circulars concerning the revised pension/family pension in respect of pre-2006 pensioners/family pensioners & the revised pension/family pension, gratuity & commutation of pension in respect of post-2006 pensioners/family pensioners. Paragraph-6 of the said circular clarified as to the method as to which to be followed while calculating the commutation of pension. Thus on the line of Government Circular, OPTCL issued the Office Order No. AW-PEN-I-9-09/18795 (120) dated 24.10.2009 clarifying the division of pension/family pension w.e.f. 1.4.2005 for non-executive pensioners/family pensioners. The said order was not communicated to the Opp. Parties prior to issuance of Office Order Dated 16.12.2009, wherein the revised commuted value of pension was ordered to be paid to the Petitioners on a completely erroneous grounds & it is, therefore, pleaded that the revised differential commuted value of pension was released in favour of the Petitioners. The Opp. Parties on obtaining a copy of the office Order Dated 24.10.2009 finding the gross mistake committed on its part forthwith issued the letter dtd. 29.3.2010 to all the concerned circles/divisions directing that in respect of the non-executive employees retired during the period from 1.4.2005 to 30.11.2008, the calculation of commutation of pension shall be based on the pre-revised pay/pension & the non-executive employees were eligible to commute a portion not exceeding 1/3rd of the monthly pre-revised pension which were to be calculated in accordance with the pre-revised pension which were to be calculated in accordance with the pre-revised table of commutation value which was in force prior to 1.12.2008. It is contended that the Opp. Parties have correctly issued the orders impugned & treated the differential payment as "excess payment" of commuted pension.
In course of hearing of these Writ Petitions, it transpires that the Petitioners are entitled to pension & they are also entitled to commute pension. The only difference is that the employees retiring prior to 1.12.2008 were eligible to commute 1/3rd of their pension & after twelve years the full pension was to be restored whereas in the revised pension scheme, which was to be applicable to the employees who retired after 1.12.2008, the retired employees were eligible to commute 40% of the pension in the revised scale of pension which was to be restored at the end of fifteen years. It is not disputed that though excess payment has been made to the Petitioners, the same is being recovered from the pension of the Petitioners within a period of fifteen years. Now the question arises whether the Opp. Parties should be allowed to recover those amount from the Petitioners by deducting the amount from their GPF, gratuity etc.
In course of hearing, Learned Counsel for the Petitioners drew attention of this Court to the reported case of Shyambbu Verma & Ors. Vs. Union of India & Ors.; 1994 SCC (L & S) 683 wherein the Supreme Court has granted relief against recovery of any excess amount, which has already been paid to the employees.
Similar question arose in the case of SYED ABDUL QUDIR & Ors. Vs. State of Bihar Commissioner; (2000) 3 SCC 475 wherein the Supreme Court in very clear terms laid down that in catena of decisions the Supreme Court has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, & (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation or rule/order, which is subsequently found to be erroneous. The Supreme Court further clarified that the relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. However, it is further ruled by the Supreme Court that if it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts & circumstances of & particular case, order for recovery of the amount paid in excess.
Coming to the case in hand, it is seen that the Opp. Parties admit that the excess payment in the shape of commutation of pension of 40% has been made on erroneous interpretation by the Opp. Parties. It is not the case of the Opp. Parties that the Petitioners have in any way misrepresented or played fraud on them. Though the error is detected in their time, this Court comes to the conclusion that the relief against recovery should be granted in this case keeping in view the hardship that will cause to the Petitioners if the differential commuted value of pension is recovered from them. Further more, there shall not be any loss to the Opp. Parties in the sense that the commuted value of the pension is always recovered by deducting instalments from the monthly pension paid to each employees. Accordingly, all the Writ Petitions are allowed. It is directed that the order passed by the respective employees against the Petitioners cancelling the revision of commuted value of pension to the employees & treating the differential amount as "excess payment" are hereby quashed. The Opp. Parties are restrained from recovering the differential amount of commuted pension from the Petitioners dues.
Urgent certified copy of this order be granted on proper application.