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2020 DIGILAW 921 (PNJ)

Dharam Pal Singh v. Union of India

2020-03-06

HARSIMRAN SINGH SETHI

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JUDGMENT : HARSIMRAN SINGH SETHI, J. 1. In the present writ petition, the grievance of the petitioner is that the respondents have passed a totally cryptic and non-speaking order, by which, the recovery of amount has been initiated from the pension of the petitioner on the ground that the excess pension has been paid to him over and above his entitlement and a sum of Rs. 2,03,517/- is liable to be recovered from the pension of the petitioner. 2. The facts as stated in the writ petition are that the petitioner retired from the Indian Army and was receiving the pension since July, 1983. In September, 2018, the respondents sent a letter (Annexure P-1) to the petitioner, wherein, it was mentioned that the petitioner has been paid the excess pension as the same was wrongly fixed, due to which, he has been paid a sum of Rs. 2,03,517/- over and above his entitlement, which needs to be recovered and petitioner was asked to file his objections, if any, to the said recovery. 3. After the receipt of the said letter, petitioner filed the reply to the same on 03.10.2018 (Annexure P-4), wherein, he has stated that no recovery can be done from a retired employee keeping in view the law laid by the Hon’ble Supreme Court in State of Punjab and Others vs. Rafiq Masih (White Washer), 2015 (4) SCC 334 and therefore, the recovery from him is impermissible and cannot be affected. After receiving the said reply, the respondents passed an order on 30.10.2018 (Annexure P-5), wherein, the petitioner was informed that keeping in view the RBI instructions, the recovery has to be affected. Challenge in this writ petition is to the order dated 21.09.2018 (Annexure P-1) as well as to the orders by which the objections raised by the petitioner in pursuance to order dated 21.09.2018 (P-1), has been rejected. Upon notice of motion, the respondents have filed the reply. 4. In the reply, the respondents have stated that the pension of the petitioner, at the time when he was discharged from service in the year 1983, was wrongly fixed and due to the said incorrect fixation, petitioner has received excess payment to the tune of Rs. 2,03,517/- therefore, as the same is public money, keeping in view the RBI guidelines, petitioner is liable to refund the said amount. 2,03,517/- therefore, as the same is public money, keeping in view the RBI guidelines, petitioner is liable to refund the said amount. It has been further stated that the judgment in Rafiq Masih (supra) is not applicable in the present case. 5. I have heard learned counsel for the parties and have gone through the record with their able assistance. 6. First of all, the impugned order, which has been passed by the respondents, is a totally cryptic and non-speaking order. Only a one line order has been passed by the respondents stating that the recovery is initiated as per the instructions issued by the RBI regarding the payment of pension. No reason has been given as to why the judgment in Rafiq Masih (supra) will not be applicable in the case of petitioner. In case, there was a cogent reason that the judgment in Rafiq Masih (supra) is not applicable, the same should have been stated in the impugned order so that the petitioner could know the exact reasons for not accepting the objection, which he had raised to the proposed recovery of the amount. Further, no details of RBI guidelines have been mentioned in the impugned order, according to which, even if an employee, who retired more than 30 years ago, can be made liable to refund the amount, in case, the same has been paid in excess and fault for the release of the excess amount lies with the respondents themselves. The impugned order which does not give any reason for affecting the recovery cannot be sustained in the eyes of law as all the authorities are under an obligation to support their decision with reasons. In the absence of the reasons for the decision arrived at by the executive the same is illegal and arbitrary. 7. Hon'ble Supreme Court while deciding M/s Kranti Associates Pvt. Ltd. vs. Masood Ahmed Khan, 2010 (9) SCC 496, held that the order of authority whether administrative order or quasi judicial must be a speaking order. The relevant paragraph of the said judgment is as under:- “51. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. The relevant paragraph of the said judgment is as under:- “51. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737) (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (1994) 19 EHRR 553, at 562 Para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires “adequate and intelligent reasons must be given for judicial decisions.” (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process.” 8. A Division Bench of this Court while deciding M/s Ram Rattan Aggarwal and Co. vs. State of Haryana, 1997 (1) RCR (Civil) 507 held that in case any order passed by an authority adversely affects right or interest of a person, the authority must give reasons to support the decision. The relevant paragraph of the judgment is as under:- “13. In addition to the observations made and the directions given in the various orders passed by this Court to which reference has been made hereinabove, we deem it proper to reiterate the well established principles of law that every quasi-judicial authority must give reasons in support of its order in case such order adversely affects the rights or interest of a person. The requirement of passing speaking order by quasi-judicial authorities has been recognised as a necessary concomitant of the requirement to comply with the rules of natural justice. The reasons are links between the maker of the order or the author of the decision and the order itself. They indicate the process of application of mind by the competent authority to the subject-matter which is under consideration before it and also provides an opportunity to the Court to find out whether any extraneous or irrelevant factor has been taken into consideration for arriving at a particular conclusion. They indicate the process of application of mind by the competent authority to the subject-matter which is under consideration before it and also provides an opportunity to the Court to find out whether any extraneous or irrelevant factor has been taken into consideration for arriving at a particular conclusion. In S.N. Mukherjeet vs. Union of India, 1991 (1) SCT 241 (SC) : 1990 (4) SCC 584, a Constitution Bench of the Supreme Court considered the issue at length and after making reference to the Indian, American, English and Australian laws on the subject, the apex Court has held that except in cases of express exclusion by statute or in cases where such exclusion can be inferred from the nature of power exercised by the quasi-judicial authority, every quasi-judicial authority must act in consonance of the principles of natural justice and must give reasons in support of its orders. Requirement of recording of reasons even in the absence of statutory provision has been held to be implied in Bhagat Raja vs. Union of India, AIR 1967 SC 1606 . In Travancore Rayon Limited vs. Union of India, AIR 1971 SC 871 and M/s. Mahabir Prasad vs. State of U.P. AIR 1970 SC 1031, the Supreme Court has held that the reasons should not only be recorded but must be communicated to the affected person.” 9. In the present case, the order passed by the respondents initiating recovery is totally cryptic and non-speaking. It has only been stated in the order that keeping in view the RBI guidelines, the recovery of the excess amount paid to the petitioner has to be recovered. No guidelines of the RBI have been reproduced in the order to support the said decision. Further, with regard to the judgment in Rafiq Masih (supra), it has only been stated that the same is not applicable without giving reasons as to how or on what account, therefore, the said order dated 30.10.2018 (Annexure P-5) is contrary to the settled principle of law and cannot be sustained. 10. Even otherwise, Hon'ble Supreme Court in Rafiq Masih (supra) has laid down the guidelines under which the recovery is impermissible from a retired employee. The relevant part of the said judgment is as under:- “12. 10. Even otherwise, Hon'ble Supreme Court in Rafiq Masih (supra) has laid down the guidelines under which the recovery is impermissible from a retired employee. The relevant part of the said judgment is as under:- “12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:- (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 11. A bare perusal of Clause (ii) of paragraph 12 of above judgment would show that no recovery can be done from a retired employee or an employee who has to retire within one year. Even as per Clause (iii) of paragraph 12, no recovery can be done in case an order, which remained in operation for a period of more than five years, is sought to be withdrawn. 12. In the present case, the claim of the petitioner is covered under Clause (ii) and (iii) of paragraph 12 of Rafiq Masih (supra) for the reason that he is a retired employee and further, the fixation of his pension was done in the year 1983, which remained in operation for more than five years and hence, the recovery of an amount, after withdrawing the order of fixation of pension as done in 1983, is impermissible. 13. 13. Learned counsel for the respondents has not been able to point out any differentiable fact so as to disentitle the petitioner to the benefit of the judgment of the Hon’ble supreme Court of India in Rafiq Masih’s case (supra). 14. The case of the petitioner is squarely covered in his favour by Rafiq Masih (supra) the effect that the recovery could not have been effected by the respondents after withdrawing the order of fixation of pension of the petitioner in any manner after the retirement of the petitioner. 15. Keeping in view the above, the action of the respondents in recovering the amount of Rs. 2,03,517/- from the pension of the petitioner is held to be contrary to the above settled principle of law and consequently, the orders dated 21.09.2018 (Annexure P-1) and 30.10.2018 (Annexure P-5) are set aside and the respondents are directed to refund the amount recovered from the petitioner within a period of two months from the date of receipt of certified copy of this order. 16. Present writ petition is allowed in the above terms.