AI Structured Summary
Not yet generated for this judgment
Judgment
Ram Surat Ram Maurya,Presiding Member
Heard Mr. Rajesh Kumar Gautam, Advocate for the petitioners and Ltd. Col. (Retd.) Rakesh Bansal, in person, the respondent.
This revision petition has been filed against the order of State Consumer Disputes Redressal Commission, Dehradun dated 13.03.2018 passed in First Appeal No.112 of 2016 (arising from the order of District Consumer Disputes Redressal Forum, Dehradun dated 27.4.2016 passed in CC No.239 of 2015), whereby District Forum has dismissed the complaint and State Commission has allowed the complaint and directed the petitioners to refund an amount of Rs.3,60,758/- deducted from the pension to the complainant.
Lt. Col. (Retd.) Rakesh Bansal (the respondent) filed Consumer Complaint No.239 of 2015, for (i) refund of Rs.1,05,000/- with interest @ 15% per month as deducted from his pension from 01.05.2015, (ii) to pay Rs.65,000/- as compensation, (iii) to pay the cost of litigation and (iv) or any other relief which the Forum may deem fit in the circumstance of the case be granted. It has been stated in the complaint that the complainant had retired with disability from the post of Lt. Colonel, in Indian Army in 1989. Disability was counted to 50%. On the basis of Pension Payment Order issued by Principal Controller of Defence Account (Pension), Allahabad, the complainant was receiving his pension through Punjab National Bank, Branch Karanpur, Dehradun, who was a service provider of the pension, where his Pension Account No.0616000300210601 was opened. Since then, the complainant was getting pension regularly through the bank. All of sudden, the pension of the complainant was substantially reduced with effect from 01.05.2015 as the pension of April, 2015 of Rs.31,133/- was only credited to his account. The complainant raised objection regarding deduction of the pension in his account before the officials of the bank, but they did not give any satisfactory reply. Then the complainant sent a notice to the bank then they informed that the deduction was being done @ Rs.15,000/- per month from the pension of the complainant as he was given excess payment due to wrong calculation done by the officials of the bank. The complainant raised an objection that the bank is merely a service provider of the pension and had no authority to make any deduction, but no satisfactory reply was given. When the matter was brought to Inspection & Audit Section of the Bank, then a letter dated 21.09.2015 was issued, stating that this branch of bank was falling under command area of the Circle Branch at Dehradun and deduction was being made under the guidelines of Reserve Bank of India, as issued for recovery of excess payment. The complainant has pointed out various judgments of the Hon'ble Supreme Court to the effect that no deduction from the pension can be made, but they went on deducting Rs.15,000/- per month. On these allegations, the complaint was filed on 09.11.2015.
Punjab National Bank contested the case and filed its written reply on 14.12.2015 in which it has been stated that on the basis of Government of India Notification No.412 dated 26.05.2009 certain benefits were given to the complainant with effect from 01.01.2006. While calculating the benefits and paying it, an amount of Rs.3,60,758/- was paid in excess to the complainant. Principal Controller of Defence Account (Pensions) Allahabad, U.P. issued a letter Corrigendum PPO No. M/CORR/6 th /CPC/013803/2014 dated 09.10.2014. In which, it has been mentioned that the revised rate of pension of Lt. Col. Rakesh Bansal was Rs. 21807/- w.e.f. 01.01.2006 and Rs. 22286/- w.e.f. 24.09.2012. Then, it was found that Lt. Col. Rakesh Bansal was given pension at the rate of Rs. 23366/- w.e.f. 01.01.2006 and Rs. 26265/- w.e.f. 24.09.2012 and total Rs.3,60,758/- was paid to him in excess. The Chief Manager of the bank issued a letter dated 21.02.2015 to the complainant giving the detail reason for deduction of Rs.15,000/- per month from his pension. Thereafter, from April 2015, Rs.15,000/- per month was being regularly deducted from the pension of the complainant. At the time of granting the pension, the complainant gave an undertaking dated 24.10.1989 that in case any excess amount is paid due to any mistake, then he would return or compensate that amount. Therefore, the complainant cannot raise any objection regarding deduction. Later on, it has been informed that during pendency of the complaint, the entire amount of Rs.3,60,758/- has been deducted from the pension of the complainant.
Before the District Consumer Forum, both the parties have adduced their documentary evidence and affidavit of evidence. District Consumer Forum by its judgment dated 27.04.2016 found that an excess payment of Rs.3,60,758/- was done to the complainant due to wrong calculation of the officer of the bank. Reserve Bank of India issued circular No.31/2016 by which it has been stated that 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 lump sum arrears payment. Section 72 of Indian Contract Act, 1872 provides that if a person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it. In view of the aforesaid provision, there is no illegality in recovering the amount of Rs.3,60,758/-, which was paid in excess during 01.01.2006 to November, 2014 due to wrong calculation of the bank official. On these findings, the complaint was dismissed.
The respondent filed First Appeal No.112 of 2016 before the State Commission, from the aforesaid order of the District Forum. The appeal was heard by State Consumer Disputes Redressal Commission, Uttarakhand, who by judgment dated 13.03.2018 found that Defence Pension Payment Instructions (Defence PPI), 2013 provides that recovery of excess amount could be made by the order of Principal Controller of Defence Account (Pensions), after 12 months of the excess payment. Admittedly, there was no order of Principal Controller of Defence Account (Pensions) for recovery of the excess payment from the pension of the complainant, therefore, the recovery of Rs.3,60,758/- from the pension of the complainant by the bank was unauthorised. On these findings, the appeal was allowed and the petitioners bank were directed to refund Rs.3,60,758/- to the complainant and pay Rs.1,00,000/- as compensation for mental agony and harassment. Hence this revision has been filed.
The counsel for the petitioners submitted that the respondent was a Government employee. The pension was being given to the respondent under the terms and conditions of the service, therefore, the respondent is not a consumer nor consumer complaint was maintainable. The order of State Commission is without jurisdiction. At the time of granting the pension, the respondent has given an undertaking on 24.10.1989, that in case any excess payment was made to the credit of his account, then he would return or compensate that payment. Otherwise also, Section 72 of the Indian Contract Act, 1872 provides that if any person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it, therefore, the deduction of excess money of Rs.3,60,758/- , which was paid to the respondent was being deducted by the bank. He submits that this money was wrongly paid to the respondent due to calculation, mistake committed by the officials of the bank while providing benefit to the respondent under Government of India Notification No.412 dated 26.05.2009. He relied upon the judgment of the Hon'ble Supreme Court in Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and others, (2012) 8 SCC 417 and stated Supreme Court has not appreciated unjust enrichment and has held that if any person has received excess amount due to wrong calculation, then he is liable to return it. He also relied upon the judgment of Supreme Cout in Jagmitter Sain Bhagat & Ors. Vs. Director, Health Services, Haryana & Ors, (2013) 10 SCC 136 and this Commission in Sub -Division Engineer (L&B) Telecom Distt. B.S.N.L. Adilabad Vs. Sh. M. Sambasiva Rao, 2015 SCC OnLine NCDRC 2529 , Sheo Muni Prasad Vs. General Manager, Northern Railway & others, 2015 SCC OnLine NCDRC 4171 and Savita Tiwari Bharat Heavy Electrical Ltd. and another, 2018 SCC Online NCDRC 2079 in which it has been held that a Government servant does not fall under the definition of a "consumer" and the complaint on their behalf is not maintainable.
I have considered the arguments of the counsel for the petitioners and examined the record. There is no dispute that the complainant was receiving pension under the order of Principal Controller of Defence Account (Pension), Allahabad, through Punjab National Bank, Branch Karanpur, Dehradun. According to the complainant the Bank is a service provider of the pension. The alleged excess payment was done by the Bank and recovery was being done by the Bank without an order of Principal Controller of Defence Account (Pension). Therefore, the dispute in this complaint is between the service provider bank and the pensioner. This Commission in Haridas Mandal Vs. Bank of India, 2019 SCC ONLine NCDRC 28 relying judgment of Supreme Court in Regional Provident Fund Commissioner Vs. Bhawani, (2008) 7 SCC 111 held that the pension is being paid to a Government employee from the Government. The concerned bank is merely a service provider. If there is any dispute relating to calculation of pension between the pensioner and the service provider bank, then such dispute falls within the ambit of Consumer Protection Act, 1986. As such, I do not find any substance in the preliminary objection raised by the counsel for the petitioners.
So far as the argument of the counsel for the petitioners based upon the judgment of the Supreme Court in Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and others (supra) is concerned, subsequent to this judgment, the matter was referred to three Judges Bench, realizing that there were contradictory ratio between Chandi Prasad Uniyal case (supra) and Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. (2009) 3 SCC 475. However, three Judges Bench in his judgment reported in State of Punjab Vs. Rafiq Masih, (2014) 8 SCC 883 held that there was no contradiction between judgments of Supreme Court and remitted the matter to the Division Bench for decision on merit. Later on, Division Bench of Supreme Court in its judgment dated 18.12.2014 reported in State of Punjab & Ors. Vs. Rafiqu Masih, (2015) 4 SCC 334 laid down various principles, inter alia, that if excess payment was not done due to any fraud/misrepresentation committed by the employee, then, it cannot be recovered from the pension of the employee or from an employee who is likely to retire within one year. The judgment of Chandi Prasad Uniyal (supra) and judgment of Supreme Court of three Judges Bench in Syed Abdul Qadir (supra), were considered and after consideration of earlier judgments this principle has been laid down. Therefore, the latter view has to be followed.
The counsel for the petitioners also relied upon Section 72 of Indian Contract Act, 1872. A larger Bench of Supreme Court in Mafatlal Industries Ltd. & Ors. Vs. Union of India & Ors, (1997) 5 SCC 536 has held the claim under Section 72 has to be made under the proceeding of the same Act, in which excess payment was made. No separate suit or writ petition is maintainable. Section 72 of Indian Contract Act, 1872 is always subject to law of limitation and principle of estoppel. Section 72 of the Contract Act, 1872 and the under taking given by the complainant are merely enabling provisions. The recovery has to be made under the legal procedure. In the present case, it has been stated that due to wrong calculation, the excess payment was made to the complainant. For recovery of any excess payment after 12 months from the pension, the Government of India has issued circular i.e. Defence Pension Payment Instructions (Defence PPI), 2013 under which the recovery from the pension after 12 months of the excess payment has to be made under the order of the Principal Controller of Defence Accounts (Pensions). Admittedly, there is no such order of Principal Controller of Defence Accounts (Pensions), prior to the recovery, which was started from April, 2015. The counsel for the petitioners has relied upon a subsequent letter dated 07.09.2015 issued from Controller of Defence Accounts Office, Allahabad, in which it has been stated that the action of the petitioners in realising the excess payment was correct. This letter is not an order of competent authority for recovery from the pension of the complainant. By that time, excess payment has already been realised. The finding of the State Commission that there was no order of the competent authority for recovery from the pension, therefore, does not suffer from any illegality.
ORDER
In view of the aforesaid discussion, the revision petition has no merit and is dismissed. The petitioners shall comply the order of State Commission, within one month from the date of producing a certified copy of the order before any of them.