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2025 DIGILAW 251 (KER)

GOVERNMENT OF KERALA v. BABY VALSALA T.

2025-02-12

AMIT RAWAL, K.V.JAYAKUMAR

body2025
JUDGMENT : K. V. JAYAKUMAR, J . Impugning the order of the Central Administrative Tribunal in O.A.No.352 of 2019 dated 01.01.2020, State of Kerala and its officers preferred this O.P.(CAT). First respondent/applicant, Smt.Baby Valsala T., is the applicant in O.A. Second respondent is the Union of India and respondent Nos.3 to 5 are the officers of the State Bank of India. 2. As per the impugned order, the Central Administrative Tribunal allowed the following claim of the first respondent/applicant. “i) Issue appropriate order or direction commanding the respondents not to effect any recovery/deduction of the family pension legally due to the applicant. ii) Issue appropriate order or direction commanding the respondents to return/disburse the entire amount of pension recovered/deducted from the pension account of the late husband of the applicant maintained with the 6 th respondent, with interest minimum at the rate of 9% per annum, forthwith. iii) Issue appropriate order or direction commanding the respondents to return/disburse the entire amount of family pension recovered/deducted from the family pension of the applicant maintained with the 6 th respondent, with interest minimum at the rate of 9% per annum, forthwith. iv) Issue such other appropriate direction or order as this Hon'ble Tribunal may deem fit and proper in the interest of justice.” 3. Facts in narrow compass are as follows: Respondent No.1/applicant, Smt.Baby Valsala T., is the wife of late Gopinathan, who retired from service while working as Conservator of Forest on 31.08.1997. On 19.08.2018, Gopinathan passed away. Late Gopinathan was drawing pension through the State Bank of India with effect from 01.09.1997. 4. The third petitioner, Senior Accounts Officer, issued Annexure A2 letter directing the District Treasury Officer, Kozhikode to recover excess pension disbursed to the late husband of the first respondent/applicant. The first respondent/applicant challenged the recovery of the excess pension of late Gopinathan on the premise that the recovery was ordered without observing the principles of natural justice, the monthly pension of late Gopinathan was reduced to Rs.30,964/- from the month of June, 2018 and an amount of Rs.4,72,847/- was recovered from the monthly pension by the Bank. After the death of the husband of the first respondent/applicant, the family pension of the applicant was reduced from Rs.28,445/- to Rs.18,971/- without any reason. 5. After the death of the husband of the first respondent/applicant, the family pension of the applicant was reduced from Rs.28,445/- to Rs.18,971/- without any reason. 5. The contention of the petitioners was that, the pension of late Gopinathan was erroneously fixed in the pay band of Rs.37,400-67,000 - plus Grade pay of Rs.8,700/- - by oversight, which resulted in authorizing the pension at the rate of Rs.23,050/- and family pension of Rs.13,830/- instead of the admissible amount of pension at Rs.16,355/- and family pension at Rs.9,813/- respectively. The erroneous fixation was noticed and the third petitioner intimated it to the District Treasury Officer, Kozhikode vide Annexure A2 letter. 6. The contention of the State Bank of India and its Officers/respondent Nos.3 to 5 herein was that, they are only the pension disbursing agency and cannot go beyond the pension payment orders issued by the competent authority, and bound to follow the instructions issued by the pension sanctioning authority. It is further contended that, late Gopinathan has given an undertaking to the Bank authorizing them to make recovery of excess payment, if any. The applicant is bound by the terms of Annexure R5(a) undertaking cannot challenge the recovery proceedings initiated by the Bank for recovering excess payment made to the deceased petitioner. 7. The Central Administrative Tribunal noticing the rival contentions of the counsel for the parties and placing reliance on decision reported in State of Punjab & Ors. v. Rafiq Masih (White Washer) & connected cases ( AIR 2015 SC 696 ) held that the recovery of the family pension of the applicant is impermissible. The relevant paragraphs of the order of the tribunal are extracted hereunder: “8. Further as regards the recovery part, we find that the Hon'ble apex court in Rafiq Masih 's case (supra) had set down the law and declared recovery as impermissible from employees under certain circumstances. The Apex Court ruled : "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. The Apex Court ruled : "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." In view of the apex court's decision in Ra Masih's case (supra) we find that the applicant's case falls within item No. (ii) wherein the apex court held that recovery from retired employees is impermissible. Moreover, it is duty of the respondents to pay the correct pension to the pensioner. Wefurther find that there was no misrepresentation or any fault on the side of the late husband of the applicant or the applicant while fixing the pension of the late husband of the applicant on implementation of the 6th and 7th CPC. Therefore, in view of the decision of the apex court in Rafiq Masih's case (supra) recovery from the pension of the late husband of the applicant and the family pension of the applicant is impermissible. Hence, the amount so recovered from the pension of the late husband of the applicant and from the family pension of the applicant may be refunded to the applicant within three months from the date of receipt of a copy of this order.” 8. Hence, the amount so recovered from the pension of the late husband of the applicant and from the family pension of the applicant may be refunded to the applicant within three months from the date of receipt of a copy of this order.” 8. Sri.K.V.Vipindas, learned Government Pleader submitted that the impugned order of the tribunal is illegal and unsustainable in law. The tribunal ought to have rejected the claim of the first respondent/ applicant in view of the decision reported in High Court of of Punjab & Haryana & Ors. v. Jagdev Singh (AIR 2016 SC 3523) 9. Per contra, learned counsel for the first respondent/applicant supported to the order of the Central Administrative Tribunal and submits that no interference is warranted in this matter. 10. The reasoning of the tribunal is that in view of clause No.(ii) of Rafiq Masih’s case (supra) the recovery from the retired employees or employees who are due to retire within one year of the order of recovery is impermissible. 11. We are unable to agree with the reasoning of the Central Administrative Tribunal in view of the judgment in Jagdev Singh’s case (supra) 12. The main contention of the I st petitioner/State of Kerala is that the dictum laid in Ra Masih ’s case (supra) was not applicable to the facts of the instant case, since late Gopinathan had given an undertaking to the Bank authorizing the authorities to recover the excess amount paid. 13. The undertaking given by late Gopinathan the husband of the applicant is extracted hereunder: “Letter of undertaking to be obtained from pensioners whose pension is paid by the Bank under the scheme for payment of pensions by public sector banks. The Branch Manager, STATE BANK OF INDIA Not to be attested CALICUT In consideration of the State Bank of India having agreed at my request to credit to my savings bank/current account in my single name the amount of pension, payable to me from time to time by the Government of India, as it falls due, under the Scheme for payment of civil pensions of Central Government pensioners by public sector banks, I the undersigned Shri P. GOPINATHAN. IFS(RTD), S/o Shri LATE M.SAN KARAN NAI Raged.......of....... . (address) 1/3954 Y am in i Eas t Hill Road calicu t-5.... IFS(RTD), S/o Shri LATE M.SAN KARAN NAI Raged.......of....... . (address) 1/3954 Y am in i Eas t Hill Road calicu t-5.... .agree and undertake to refund or make good to the Bank any amount to which I am not entitled or any excess amount which may be credited to my account over that to which I am or would be entitled. and agree that the amount of money when demanded by the bank from me us due and payable to the Bank in respect thereof shall be conclusive as to the amount and shall be binding on me, I also hereby so-as to bind myself and my heirs, executors and administrators - agree and undertake to indemnif the Bank from and against any loss, costs, charges, damages and expenses suffered or incurred by the Bank. In so crediting my pension to my account under the scheme and to forthwith pay the same to the Bank and also irrevocably authorise the bank to recover the amount in respect thereof by debit to my said account or any other deposit belonging to me in the hand of the Bank. 2. I further agree and consent that the Bank may furnish to the President of India or any authority specified or nominated in this behalf by the President of India such information relating to pensions in question which have been paid by the Bank as may be called for by such authority from to time having regard to the provisions of any law which may for the time being be in force or the practice among bankers in regard to the secrecy of the information relating to their customer's account.” 14. In Jagdev Singh ’s case (supra) , the honourable apex court laid down the circumstances, in which the recovery of excess amount paid to the employee at a post retirement stage. Paragraph Nos. 10 to 12 of Jagdev Singh ’s case (supra) are extracted hereunder: “10. In State of Punjab v. Rafiq Masih this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (SCC pp. 334- 35) (i) Recovery from employees belonging to Class III and Class IV service (or Group C and Group D service). 334- 35) (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. (emphasis supplied) 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. 12. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years” In view of the dictum laid down by the apex court Jagdev Singh ’s case (supra) and in view of the undertaking given by late Gopinathan, we are of the view that the recovery proceedings initiated against the first respondent/applicant is legal and permissible. Therefore, the O.A. is dismissed. Impugned order in the O.A. is set aside. Consequently, the O.P.(CAT) stands allowed.