Krishna Kumar Shukla vs Union Of India & Ors.

By Mallika Arya, AM

Through this Original Application, the applicant is seeking quashment of the order dated 24.03.2017 (Annexure A/1) for the recovery of Rs. 1,22,898/- from his pension and any amount recovered be refunded to him.

Briefly stating, the facts of the case are that the applicant was an employee of West Central Railway, Katni. He retired on 12.12.1991. A copy of the PPO is annexed as Annexure A/2. A letter dated 24.03.2017 (Annexure A/1) was issued by Respondent no.2 addressed to Respondent no.5 wherein it was mentioned that an amount of Rs.1,22,898/- which was paid in excess of pension to the applicant be credited in the Railway Account and respondent no. 5 may recover the said amount from the applicant in suitable installments. The applicant was entitled for Rs. 23,157/- as a monthly pension, while he was getting Rs.11,270/- after deduction. The statement of deduction from pension is annexed as Annexure A-3. Applicant is a retired Class III Employee and any recovery from the pension of the applicant will cause a great financial hardship to him. During his service tenure he did not mis-represent any fact and no fraud was committed by him contributing towards the excess payment of pension. The proposed recovery from the pension of the applicant is contrary to the decision of the Hon'ble Supreme Court in the case of State of Punjab & ors. Vs. Rafique Masih (2015) 4 SCC 334. In the said decision the Hon'ble Supreme Court has held that no recovery can be made from the employees belonging Class III & Class IV and also from retired employees or employees who are due to retire within one year of the order of recovery.

The respondents have filed their reply wherein it has been submitted that the Western Central Railway, Accounts Department, Indira Market, Jabalpur vide letter dated 08.02.2017 (Annexure NA/1) informed respondent no. 5 that two officers will visit the Bank Branch for verification of the documents of the pensioners and family pensioners. Upon verification, in many cases, some discrepancies were found. In the matter of the applicant, it was found that he had been given additional pension of Rs. 2266/- per month. As per PPO, his date of birth was shown 07.12.1943. Therefore, he was not entitled for additional 20% pension but he was being overpaid the additional pension since October 2013. Thereafter, respondent No. 5 issued a letter to the applicant wherein he was informed with regard to payment of additional pension and he was requested to deposit the amount of Rs. 1,22,898. In response to the same, the applicant submitted letters dated 09.03.2017 and 15.03.2017 (Annexure NA/3), whereby he requested for deduction of Rs. 3,000/- per month from his pension towards repayment of excess pension. Since an undertaking of authoritization dated 11.06.1992 (Annexure NA/5) was also given by the applicant to the respondents, therefore, the respondents have the right to recover the overpayment.

The applicant has filed rejoinder to the reply filed by the respondents wherein it has been submitted that he never demanded excess payment from the Respondents. The Bank authorities (Respondent no. 5) paid the amount to the applicant on their own though by mistake. The proposed recovery from the retiral dues of the applicant is contrary to the decision rendered by the Hon'ble Supreme Court of India in case of State of Punjab and others VS Rafique Mash (2015) 4 S.C.C. 334.

We have heard the learned counsels for both the parties and perused the pleadings and the documents available on record.

The counsel for the applicant has submitted that the applicant retired in 1991. There was no fraud, misrepresentation, concealment or suppression of any fact on applicant’s part and the PPO was issued to him by the respondents/pensionary authorities. The alleged excess payment occurred solely because of an error on the part of the respondents.

The question which arises for consideration is whether recovery of an alleged excess amount from the pensioner is legally and equitably justified when the excess payment was not on account of any fraud, misrepresentation or misconduct on the part of the pensioner. We take note that the recovery for impugned sum of Rs. 1,22,898 has been stayed vide order dated 08.08.2017.

The Hon’ble Supreme Court in the case of State of Punjab & Ors. vs. Rafiq Masih (White Washer), (2015) 4 SCC 334, considered the question of recovery of excess payments made due to the employer's mistake. The Hon’ble Supreme Court held that although it is not possible to prescribe every situation of hardship, recovery would be impermissible in certain categories including recovery from retired employees, recovery where the excess payment had continued for more than five years, and cases where recovery would be so harsh or inequitable as to outweigh the employer's right to recover the amount. The rationale of Rafiq Masih is particularly significant in the case of pensioners because pension constitutes their post-retirement financial support.

In the case of Thomas Daniel vs. State of Kerala & Ors., (2022) 1 SCC 260, the Hon’ble Supreme Court has dealt with the recovery of excess pension paid due to an error on part of the authorities. The Hon’ble Supreme Court has held that where the employee/pensioner was not guilty of any misrepresentation or fraud and the excess payment has resulted from an error attributable to the authorities, recovery of the excess pension would cause undue hardship. The Hon’ble Supreme Court has specifically observed that pensioners are in a more disadvantageous position than serving employees and has held that such excess pension should not be recovered in the circumstances of that case.

In the present case, there is no material on record demonstrating the fact that the applicant had furnished any false information or suppressed any material fact or even misrepresented his entitlement. The respondents in their reply have also not made any averment in this regard. On the contrary, the record indicates that the excess payment arose due to an error by the authorities concerned (Respondent No. 5). The pension to the applicant was sanctioned and disbursed by them on the basis of official records. In such circumstances, it would be inequitable to shift the entire financial burden of a departmental error on the applicant.

Upon consideration of the facts of the case and the settled legal position on the subject and the material available on record, the impugned order of recovery dated 24.03.2017 (Annexure A/1) is quashed and set aside.

Accordingly, this Original Application is allowed. No order as to costs.