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Judgment
Heard Sh. Suneet Bhardwaj, learned counsel for applicant Ms. Esha Mazumdar, learned counsel for respondents No.1 & 3 and Sh. Khaushal Mohal with Sh. S.C.Chawla, learned counsel for respondent No.4.
The applicant is a widow of one late Sh. R.B.S.Tyagi, who was a DANICS officer and retired from service on 30.11.2003 and was in receipt of pension. After his unfortunate death on 11.03.2004 his widow (the instant applicant) was in receipt of family pension w.e.f. 12.03.2004. This widow is the applicant in the instant OA, who is about 68 years of age and is a housewife. She has claimed that she has suffered from Osteoarthritis and has physical difficulty in movement.
The applicant pleads that she was in receipt of pension vide Pension Pay Order (PPO) No.669980500469 dated 09.05.2005 issued by Pay and Accounts Officers, Government of National Capital Territory of Delhi (GNCTD). As per this PPO her family pension was fixed at the enhanced rate of Rs. 8438/- w.e.f. 12.03.2004 to 30.11.2010 and at normal rate of Rs. 5063/- w.e.f. 01.12.2010. This pension was being credited by the State Bank of India to her pension account regularly. She pleads that with respect to 6th CPC recommendations, she started receiving a monthly pension amounting to Rs. 19,070/- p.m.. However, the revised PPO was not received. However, she received a letter dated 01.02.2016 issued by GNCTD to the Pay and Accounts Officer (PAO) with a copy to the paying Bank to the following effect:
"Please refer to your Pension Payment Order No.669980500469 dated 09/05/2005 in favour of Smt. Savita Tyagi w/o Late Shri R.B.S.Tyagi, DANICS retired on 30.11.2003. The family pension commenced w.e.f. 12.03.2004 due to death of Shri R.B.S.Tyagi on 11-03-2004. At the time of death family family pension was fixed at Rs. 8438/- at enhance rate and Rs. 5063/- at normal rate as per Vth CPC. The same was revised to Rs. 19070/- w.e.f. 01-01-2006 at enhance rate upto 23-11-2010 and Rs. 11443/- at normal rate w.e.f. 01-12-2010 as per 6th CPC.
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As per rule position indicated above family pension at enhance rate Rs. 19070/- was to be paid upto 23-11-2010, but the family pension paying branch of State bank of India, Rajpura Road, Delhi has been continuously paying the family pension at enhance rate Rs. 19070/-.
You are therefore, requested to look in the matter and take the necessary action under intimation to this office."
On receipt of this letter she had approached the relevant officer by GNCTD as well as the Bank in February 2016 to rectify the discrepancy and not to recover any amount already paid. The Bank, however, still continued to pay the pension @ Rs. 19,070/-until 09.05.2017, when she noted that an amount of Rs. 1,40,000/- has been debited by the Bank from her pension account, without any intimation to her. It was at this stage, that she received another letter on 22.05.2017 which was issued by Centralised Pension Processing Centre, State Bank of India (SBI) and addressed to the paying branch of SBI with a copy to the applicant. This letter reads as under:
"We would like to inform you that during the process of data purification, it is found that the above pensioner was being paid:-
1.) This is to inform you that as per CPAO letter dt 25/04/2017 above pensioner"s getting excess pension wef 1/12/2010 as per enhance rate which made recovery of Rs. 11,79,049/-out off which Rs. 1,40,000/- directly debited from CBS and balance amount feeded in pesnioin (sic.) software.
In this connection, we advise that:-
Since the recovery amount is fairly large, we have started the recovery of the above amount from the monthly pension of the customer @ Rs. 10000/- p.m. From next month till the full amount is adjusted. You are also requested to impress upon the pensioner for early lump sum adjustment of the excess pension paid to him/her and advise us to stop the monthly instalment of recovery which is being started from the next month.
If you find any discrepancy in calculation sheet please advise us immediately.
Please advise the pensioner at his/her present address accordingly."
It was at this stage that she came to know to her shock that total Rs. 11,79,049/- was paid to her in excess for the period from 01.12.2010 until 30.04.2017. The applicant pleads that the pension paying bank had already recovered an amount of Rs. 1,40,000/- on 09.05.2017 without any intimation and also started recovering Rs. 10,000/- p.m. w.e.f. May 2017. Subsequent to this, she noted that the pension paying bank had also deducted another amount of Rs. 19,000/- over and above the monthly deduction of Rs. 10,000/- p.m. on 19.11.2017. This deduction of Rs. 19,000/- was also without any notice.
Feeling aggrieved by the letter dated 16.05.2017, she had preferred a writ petition in Hon"ble High Court of Delhi vide No.7301/2017. This was decided on 23.08.2017 and she was directed to approach the Tribunal. The instant OA has been filed accordingly.
The applicant pleads that the revision in pension as per 6th CPC has been effected and paid to her by the respondents or the bank and at no stage had she made any representation or any misrepresentation whatsoever. She being a housewife is not conversant with the ways of the official matters and in the instant case no such revision of PPO for 6th CPC was ever received by her to know the revised pension or the period for which enhanced pension would be admissible or to know the quantum of enhanced pension or to know the revised rate of normal pension. She had all along believed that Rs. 19,070/- p.m. being credited to her pension account is her legitimate due.
Thereafter, she had made representation dated 23.05.2017 to stop the monthly recovery as well as to refund Rs. 1,40,000/-. She had also served legal notice dated 23.05.2017. The GNCTD replied to her vide their letter dated 07.06.2017 as under:
"In this regard it is brought to your kind notice that you were entitled for family pension at normal rate w.e.f. 01/12/2010 as per PPO issued by PAO-X on 12/07/05 (copy enclosed), but disbursing authority was paying family pension at enhanced rate for the reasons best known to them. The mistake was apparent from record, so the same was pointed as & when came to our notice. Disbursing authority realized their mistake of excess payment and took necessary action on their own."
The respondent, Central Pension Processing Centre, SBI also replied vide their letter dated 08.06.2017 which was in Hindi and its English translation is as under:
"In reference to the above letter, Shri Sunit Bhardwaj Advocate dt 23.5.2017 which has been received in our office on 26th May, 2017, in which make the complaint for doing recovery from your pension and the recovery of Rs. 140000 from your account make the demand to return back. But for this purpose he along with his letter did not annexed authority letter issued by you. Because the bank is liable to maintain privacy of their client, therefore we cannot provide this information to him therefore we are providing this information to you. In this regard want to narrate you.
Your pension data had been migrate to you by your pension payment branch in November, 2007 (as regular pension) and at that time original pension Rs. 5625/- + DP Rs. 2813/- @ Rs8438 was per month paying to you. According to the recommendation of 6th pay commission your as Rs. 12714/- (Rs. 5625/- x 2.26= Rs. 1714) and from the duration January 2006 to October, 2008 due remaining amount of Rs. 132439 paid in November 2008 and Rs. 81689 paid in the month of February,2009. But in the month of February, 2006 your original pension has been further am ended as Rs. 19070 (6438 x 2.26 = 19070) and the payment of remaining amount Rs. 110278 has been paid in the month of April, 2009.
Your husband late Shri R.B.S.Tyagi had expired on 11.03.2004. According to your PPO, your increased rate ( @Rs. 19070 per month - the payment of family pension was due up to 30.11.2010 and thereafter from 01.12.2010 the payment of your family pension was due @ Rs. 11443/-. But your pension due to payment your regular pension (as the pension of your husband upto April, 2016 has been paid @ Rs. 19070/- per month, therefore total Rs. 1179,049 has been paid excessive.
Your department/pension sanction authority vide his letter no.CCPAO/A-1/2017/Vol-109.P71 dated 25.4.2017 informed us that due to mistake the family pension is paying to you @ increased family member, while it is due @ general rate.
From your excess payment amount Rs. 140,000 has been received on 09.5.2017 from your account and recoverable arrears of amount Rs. 1039049 started recover from your pension @ Rs. 10,000 per month from the month of May, 2017, which will be completed in the month of December, 2025.
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In pensioner matter, the role of bank is like agent, who had to work on the direction of pension sanction authority officer. Because the payment is paid to the pensioner from the Government treasury, therefore it is the duty of the bank, in case of excess payment amount to the pension, in that condition to recover that amount from pensioner and to return back deposit in the Government treasury.
At the time of starting of pension, from the undertaking to be issued by the pension, the bank has right that he can recover excessive payment amount from the pensioner account. In this regard the bank has also obtained right according to the format issued by Reserve Bank of India."
The respondent pension paying bank has, therefore, taken the plea that they are only an agent and are following the directions given by the GNCTD and as per the undertaking given by the pensioner at the time of commencement of pension and relevant notification by Reserve Bank of India (RBI) issued on 01.07.2017 (refer para 19 below), the bank is having authority to make the necessary recoveries.
The applicant further pleaded that certain other letters dated 10.03.2017, 30.03.2017 and 25.04.2017, which are also being claimed to have been written by the respondents had never been received by her.
The applicant also drew attention to the following judgments wherein such recoveries from pensioners have been held to be not permissible:
(i) State of Punjab and others vs. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334 decided on 18.12.2014 by Hon"ble Apex Court.
(ii) S.S.Guraya vs. Union of India & oRs. , CWP No. 23915/2015 decided on 17.03.2017 of Hon"ble High Court of Punjab and Haryana.
(iii) Gouranga Prasad Das vs. State of West Bengal & oRs. , WP No.10204(W) of 2017 dated 12.07.2017 of Hon"ble High Court of Calcutta.
(iv) Kewal Singh vs. State of Punjab & others, CWP No. 26252 of 2013, decided by Hon"ble High Court of Punjab & Haryana.
(v) Mohd. Yusuf vs. Maharana Pratap Agriculture & Technology University, Udaipur - Civil Appeal (W) No. 349/2004 decided on 24.11.2016 by Hon"ble High Court of Rajasthan at Jodhpur.
(vi) Ravindra vs. State of Maharashtra, WP No. 5367 of 2016, decided on 18.07.2017 by Hon"ble High Court at Bombay Bench at Aurangabad.
(vii) Prakash Chandra Bothra vs. UOI, CWP No. 6387 of 2015, decided on 06.04.2017 by Hon"ble High Court of Rajasthan at Jodhpur.
(viii) Satish Manchanda and Another vs. State of Haryana and others, CWP No. 8534 of 2016, decided on 16.12.2016 by Hon"ble High Court of Punjab & Haryana.
(ix) Municipal Council Shivpuri vs. State of Madhya Pradesh - WA No. 74 of 2017, decided on 15.03.2017 by Madhya Pradesh High Court.
Several other judgments were also quoted by Applicant in support of her contention.
The GNCTD (Respondent No.1) and PAO, GNCTD (Respondent No.3) have submitted a joint counter and brought out as under:
"That the applicant visited GAD on 15/12/2015 and stated that she is not getting family pension as per recommendation of the 6th CPC. Accordingly, calculation of family pension was checked and found that she is drawing family pension as per 6th CPC recommendation at enhanced rates, whereas, the enhanced rates were applicable only up to 30/11/2010, as was clearly indicated in Pension Payment Order. The same was also verbally informed to the applicant herein. Hence, it was incumbent upon the Respondent No.4 to release pension dues strictly in terms of the Pension Payment Order. Copy of PPO dated 12/07/2005 is attached herewith as Annexure R-1."
It, therefore, emanates that it was only when the applicant had contacted the office of GNCTD that she was not getting family pension as per 6th CPC that requisite checks were exercised and then it got detected that the enhanced rate of Rs. 19,070/- was applicable only upto 30.11.2010. The respondents also brought out as under:
"However, the excess amount was being paid to the applicant by the respondent No.4 without notice or intimation to the answering Respondent and in complete divergence from the PPO. The Respondent No.4 was never authorized or permitted to act beyond the terms of the PPO, the said violation of the terms of PPO were without any prior notice, intimation or approval of the answering Respondent. The moment the same came to the knowledge of the answering respondents, the answering respondents requested the PAO-X vide letter dated 01/02/2016 to check the payment of family pension being made at enhanced rates and to take necessary action."
As annexures to their counter reply, the original PPO dated 12.07.2005 and the revised PPO after 7th CPC dated 13.11.2017 have been attached. However, the PPO issued after 6th CPC came into being, has not been attached to this counter. As per these PPOs, the enhanced rate of Rs. 8438/- was applicable upto 30.11.2010 and the normal rate of Rs. 5063/- was applicable w.e.f. 01.12.2010. As per 7th CPC, the normal rate of pension is indicated to be Rs. 30,840/- w.e.f. 01.01.2016.
The Union of India, who are respondent No.2 have also submitted their counter and have brought out that they are not a necessary party and have pleaded their name to be deleted from the OA, they being a proforma party only. However, they had also brought out as under:
"It is stated that CPAO issued SSA No.669980500469/465670 dated 19.07.2005 addressed to The Manager, State Bank of India, Tis Hazari, Delhi-110054 for payment of family pension at enhanced rate of Rs. 8,438/- from 12.03.2004 to 30.11.2010 at normal rate of Rs. 5,063/- from 01.12.2010 onwards. Subsequently, SSA No.669980500469/2640667/A1 dated 19.12.2017 (Annexure R-2) was issued by CPAO to CPPC, SBI, Chandni Chowk, Delhi for revising normal rate of family pension to Rs. 30,840/- from 01.01.2016. No authority was issued by CPAO for revision of pension as per 6th CPC which might had been revised by the Bank.
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That in reply to the contents of corresponding para, it is submitted that excess pension was paid by the Bank. Date (30.11.2010) upto which enhanced family pension was payable to the applicant had been correctly mentioned by CPAO in SSA No. 669980500469/465670 dated 19.07.2005 (Annexure R-1) addressed to The Manager, State Bank of India, Tis Hazari, Delhi-110054. Therefore, it was responsibility of the bank to ensure that family pension at enhanced rate is paid to the applicant only upto 30.11.2010. Respondent No.2 never asked the bank to effect recovery from the applicant against overpaid paid pension of Rs. 11,79,049/-. Therefore, recovery of overpaid amount is a matter between Bank and the Applicant and as such CPAO is not at all responsible for recovery by bank from the applicant."
Centralised Pension Processing Centre, SBI, who are respondent No.4 have also submitted their counter and have brought out that the applicant had given an undertaking to the bank on 25.10.2006 to the following effect:
"2. In pursuance of the aforesaid Agreement, and in consideration of the premises I hereby covenant with the bank, its successors and assigns that my estate wheresoever situated and of whatsoever nature shall be liable to the Bank for indemnifying and making good so much of any money which may have been received by the Bank and credited to my account with the Bank as shall be in excess of the amount of the pension to which I would be entitled at the date of my death and any loss suffered by the Bank in that behalf and all costs, charges and expenses incurred by the Bank in connection therewith.
I agree that the bank will be at liberty to determine this Agreement on giving to me seven days notice in writing in that behalf, but nothing herein contained shall be deemed to exonerate or release me or my estate from liability under the covenant herein contained in respect of any such payments as aforesaid made prior to the date of the determination of this agreement."
The respondents have also pleaded that "it is to submit that recovery was affected after putting applicant to notice of this recovery". In addition, the respondents have also drawn attention to a Master"s circle on disbursement of Government agency banks issued by RBI on 01.07.2017 and drew attention to para 12 of this circular as under:
"Recovery of excess/wrong payment made to a pensioner
Details of the uniform procedure evolved for recovery of excess/wrong payments made to pensioners drawing pensions under the Scheme for payment of pension to Central/Civil/Defence/Railways pensioners through agency banks, are given below:
a) As soon as the excess/wrong payment made to a pensioners comes to the notice of the paying branch, the branch should adjust the same against the amount standing to the credit to the pensioner"s account to the extent possible including lump sum arrears payment.
b) If the entire amount of overpayment cannot be adjusted from the account, the pensioner may be asked to pay forthwith the balance amount of overpayment.
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 overpayment 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 overpayment cannot be recovered from the pensioner due to his death or discontinuance of pension then action has to be taken as per the letter of undertaking given by the pensioner under the scheme.
e) The pensioner may also be advised about the details of over payment/wrong payment and mode of its recovery."
Therefore, the respondents have pleaded that the applicant had given an undertaking at initial stage and was given a notice for recovery and it is only after the said notice that recoveries have been effected to and that they have the necessary authorisation to effect the said recoveries. The respondents also drew attention to certain judgments as under wherein the process of recovery by the disbursing banks has been upheld. One of these judgments is by Hon"ble Apex Court in High Court of Punjab and Haryana vs. Jagdev Singh, (Civil Appeal No.3500 of 2006, judgement dated 29.07.2016. The following observation in para 11 of this judgment sums up the position :
"11 The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
Respondents also relied on the case of Chandi Prasad Uniyal and oRs. Vs. State of Uttaranchal, (2012) 8 SCC 417, decided on 17.08.2012, wherein the Hon"ble Apex Court had made the following question for adjudication:
The question that arises for consideration in this appeal is whether over-payment of amount due to wrong fixation of 5th and 6th pay scale of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who are serving as teacheRs. The Division Bench of the High Court rejected the writ petition filed by the appellants and took the view that since payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judgment, this appeal has been preferred."
Thereafter, the Hon"ble Apex Court has decided as under:
"18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellant"s salary in twelve equal monthly installments starting from October 2012. The appeal stands dismissed with no order as to costs. IA Nos.2 and 3 are disposed of."
Respondents also relied on the judgment of High Court of Madhya Pradesh titled Ratan Bai Gehlot vs. State of Madhya Pradesh, WP No.3730/2009 decided on 22.03.2010. This judgment has also allowed the recovery of the excess payment.
Further, in the case of Lt. Col. R.C.Setia vs. State Bank of India, CWP No.4179/2016 decided on 08.11.2017, High Court of Rajasthan Bench at Jaipur has also allowed the recovery of the excess payment even if the recipient of excess amount has not played any part in such payment.
Reliance has also been placed on the order of Chandigarh Bench of this Tribunal titled Jaswinder Kaur vs. Union of India, OA No.060/00636/2015 decided on 23.05.2016 of Chandigarh Bench of this Tribunal and on Umed Raj Singhvi vs. Union of India, OA No.290/00305/2015 decided on 05.04.2016 of Jodhpur Bench of this Tribunal.
In all these cases, the recovery of excess payment was upheld even though the recepient was not at fault.
In the rejoinder to the counter submitted by respondent No.2, the applicant had brought out an office memorandum dated 14.10.2008 issued by Department of Pension and Pensioners Welfare in the wake of implementation of 6th CPC recommendations for revision in respect of pre-2006 pensioneRs. This circular had the following proviso:
"The undersigned is directed to say that in pursuance of Government"s decision on the recommendation of Sixth Central Pay Commission, sanction of the President was accorded to the regulation, with effect from 1.1.2006, of pension/family pension of all the pre-2006 pensioners/family pensioners in the manner indicated in this Department"s O.M. No. 38/37/08-P&PW(A) dated 1.9.2008. Clarifications on certain provisions were also issued vide O.M. No.38/37/08-P&PW(A) pt.I dated 3.10.2008.
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Wherever, the pension is disbursed through Public Sector Banks, the Banks will pay and disburse the pension and arrears in accordance with the ready reckoner and also the additional pension to old pensioners/family pensioners (wherever the date of birth is available in the PPO) within a week from the date of issue of this OM.
A revised concordance table (Annexure-I) of the pre-1996, pre-2006 and post-2006 pay scales/pay bands is enclosed to facilitate payment of revised pension family pension in terms of para 4.2 of the OM dated 1.9.2008 (as clarified vide OM dated 3.10.2008) in all cases where fixation of pension under that provision is more beneficial. Some illustrations for calculation of pension/family pension in terms of para 4.2 ibid have been given in Annexure-II. It will be the responsibility of the pension disbursing public sector banks to revise and disburse the enhanced pension and arrears in terms of para 4.2 of the OM dated 1.9.2008. ... ...
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CGA/CPAO will devise their own monitoring mechanism to ensure that enhanced pension and arrears are disbursed to all civil/pensioners/family pensioners by 30.11.2008 positively. ...
..."
In reference to above, the applicant pleaded that when the PPO after 6th CPC recommendations was not issued, it was enjoined upon the banks to make the correct revision at their end and disburse the pension. It was in compliance to these instructions that the pension paying bank had revised the pension and paid the same. Since the applicant at no stage had made any averments or made any application whatsoever and entire revision of the pension was by the respondents she is not at fault.
Further, a letter was issued by GNCTD on 01.02.2016, which indicated certain corrections to pension, but despite this the bank continued to pay pension at Rs. 19070/-p.m. up till 09.05.2017. Therefore, she had always assumed that pension being credited to her account is her legitimate due and she cannot be deprived of it. This has now been upheld by the Hon"ble Apex Court also in Rafiq Masih (para 12 supra) which has since been upheld in many other judgments also and accordingly, the applicant had sought following reliefs:
"i) To allow the present OA with cost.
ii) Issue order/s or direction/s for quashing/setting aside of order dated 16/05/2017 bearing No. CPPC/MISC/2017-18/7862, passed by the manager of respondent no.4, order dated 01/02/2016 bearing No. F.No. 41/213/82/(GAD)/Pt. File/02-04 and order dated 10/03/2017 bearing No. F.No. 41/213/82/(GAD)/Pt. File/205-206, both passed by the deputy secretary of respondent no.1.
iii) Issue direction/s to the respondents to restrain themselves from taking any further action or continuing any action for recovering the said amount of Rs. 11,79,049/- from the applicant which has been paid in excess to the applicant by respondents no.1,2 and 3, through respondent no.4, in the form of family pension w.e.f. 01/12/2010 to 30/04/2017.
iv) Issue direction/s to the respondents to refund to the applicant the above said amount of Rs. 2,19,000/- already recovered/deducted by respondents from said pension account and pension of the applicant for the recovery of the said excess pension.
v) Pass any other or such further order(s) as this Hon"ble court may deem fit and proper in the interest of justice."
The applicant had also sought interim relief, however, vide Tribunal"s order dated 21.12.2017 the Tribunal had decided that OA can be heard and decided on its merit, accordingly interim relief was not granted at that stage.
Matter has been heard at length. It is admitted that the instant applicant is a family pensioner who was to receive enhanced family pension @ Rs. 8438/- from 12.03.2004 until 30.11.2010 and thereafter normal pension @ Rs. 5063/- w.e.f. 01.12.2010 onwards. It was in between this period that 6th CPC recommendations were enforced, however, the revised PPO as per 6th CPC was not issued. Accordingly the plea of the applicant that the pension @ Rs. 19,070/- which she was receiving, she had assumed it to be her due pension stands to reason. In these circumstances, the plea of the applicant is acceptable in respect of the amount of pension and her assumption, though partly only.
The plea of the respondents that applicant was aware as to the period for which enhanced pension is payable and the date from which only normal pension will be payable is also acceptable. The dates are important in that the applicant was aware that pension amount will undergo a downward revision to normal pension w.e.f. 01.12.2010 onwards. She was getting enhanced pension of Rs. 19070/- p.m. as of November, 2010 and even though the amount of normal pension was not known but she knew that it has to reduce. Once this reduction did not happen, she could have raised the issue with concerned authorities and the bank. This was, however, not done and enhanced pension continued, leading to excess which is the grievance in this OA.
It is, however, very strange that despite warning sign having been raised by GNCTD on 01.02.2016, the enhanced pension continued to be paid up to May, 2017, leading to excess which is being sought to be recovered now.
It is admitted by the respondents that an amount of Rs. 1,40,000/- was deducted from her pension account when the factum of overpayment came to their notice. Thereafter monthly recovery @ Rs. 10,000/- p.m. has also been effected w.e.f. May 2017 in accordance with the relevant RBI circular dated 17.03.2016 and this is after giving intimation to the applicant. However, from the records presented to the Tribunal by the respondents, serving of such a notice to the applicant is not proven. It comes out nowhere from all the records submitted by the respondents either from their counter or during the course of arguments that any prior intimation was sent to the applicant indicating that certain excess amount has been paid which now needs to be recovered.
This averment on the part of the respondents that applicant was informed in advance is thus not accepted. In this connection, the relevant rules advised by RBI vide their directions dated 17.03.2016 are reproduced below:
"We have been receiving complaints from pensioners stating that the recovery of excess/wrong pension payments are being made in a manner that is not in keeping with the extant guidelines. In this connection, the instructions contained in circular Nos. CO.DGBA (NBS) No. 44/GA.64 (11-CVL) 90/91 dated April 18, 1991 and CO.DGBA (NBS) No. 50/GA.64 (11-CVL) 90/91 dated May 6, 1991 laying down a uniform procedure in consultation with the Controller General of Accounts and various non-civil Ministries for recovery are reiterated 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 installment amount.
d. If the over payment cannot be recovered from the pensioner due to his death or discontinuance of pension then action has to be taken as per the letter of undertaking given by the pensioner under the scheme.
e. The pensioner may also be advised about the details of overpayment/wrong payment and mode of its recovery.
The above uniform procedure may be strictly adhered to while effecting recovery of excess/wrong pension payments made to pensioneRs.
As regards the issue of refund of excess/wrong payments to the government, banks may be guided by the guidelines laid down in our Circulars Nos. DGBA.GAD.H-10450/45.03.001/2008-09 dated June 1, 2009 and DGBA.GAD.H.4054/45.03.001/2014-15 dated March 13, 2015 which have been incorporated in our Master Circular on disbursement of government pension by Agency Banks dated July 1, 2015."
A close reading of these instructions and specifically para (e) thereof, makes it compulsory for the paying bank to issue a prior notice to the applicant for any such excess payment made so as to affect recovery thereafter. In the instant case, this requirement has not been fulfilled.
Therefore, the action of the bank in making recoveries to the extent of Rs. 1,40,000/- in one instalment and thereafter Rs. 19,000/- in another instalment and monthly recoveries to the extent of Rs. 10,000/- p.m. cannot be accepted and are set aside.
The paying bank is directed to credit all these amounts recovered so far and any other amount recovered on this account of excess payment to the applicant"s bank account within a period of one week from the date of receipt of certified copy of this order. It is also directed that this amount will not carry any interest.
In respect of the excess payment, it is the Rafiq Masih (supra) judgment which has been relied upon in many other judgments.
This judgment has made very important observation in para 6 and 7 of the same. This is reproduced below:-
"6. In view of the conclusions extracted hereinabove, it will be our endeavour, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.
Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court."
The Hon"ble Supreme Court also expressed its concern for the employers, in case the monetary benefit has been wrongfully extended to an employee. In other parts of this judgment, it is also mentioned that directions issued in the interest of equity in exercise of jurisdiction under Article 142 of the Constitution of India cannot be treated as the basis in all such cases. As many as five instances where recovery is impermissible, were mentioned by Hon"ble Apex Court, and they were said to be not exhaustive.
In this context, it is the view of this Tribunal that even though there was absolutely no misrepresentation on her part, she was aware, as of 09.05.2005 itself when her PPO was initially issued, that pension amount should reduce w.e.f. 01.12.2010 w.r.t. what she would have been getting upto 30.11.2010, even though she did not know what this amount of normal pension would be (para 26 supra). Thus, the excess amount actually got paid and it is in the nature of unsolicited advance.
In instant case, three parties are presently before us, namely, the recipient pensioner as applicant, the paying department as respondent No.1 and the paying bank as respondent No.4. However, this Tribunal is aware that pressure on the public resources, from which such pensions are actually being paid, is also to be kept in view.
On consideration of the issues involved in this OA, it is felt that it does not fall into any of the five categories mentioned in the said judgment [Rafiq Masih (supra)]. Though the continued payment of higher pension to the applicant w.e.f. 01.12.2010 when it was supposed to be reduced, was not on the basis of any misinformation by the applicant, she cannot be permitted to enrich herself from the limited public resources. It is also noted that the difficulty, in the context of recovery from the applicant, is also substantially mitigated now on account of the fact that the pension payable to the applicant has been substantially increased in the recent past under the 7th CPC, which has come into effect from 01.01.2016.
In view of foregoing, this OA is disposed off with following direction:-
(i) All amounts recovered by bank, on account of excess under question, shall be credited to her account within a week of receipt of certified copy of this judgment.
(ii) The pension paying bank shall also pay an amount of Rs. 5000/- as compensation within eight weeks, for making deductions from her account without prior consent of applicant.
(iii) A detailed month-wise statement shall be issued by bank to applicant indicating "dues" and "drawn" and "excess", and also seeking her consent for recovery.
(iv) In case consent is not received within four weeks of having supplied statement as at (iii) above, the excess amount shall be recovered thereafter, in interest free easy instalments, not exceeding 20% of her current family pension, till it is fully recovered.
There shall be no order to costs.