CW/8054/2012 of UNION OF INDIA and ORS. Vs CHUNNI LAL PUROHIT on 23 December 2012

D.B.Civil Writ Petition No.8054/2012Union of India & Ors. VsChunni Lal Purohit DATE OF ORDER : - 23[rd] November 2012

HON'BLE MR.JUSTICE DINESH MAHESHWARIHON'BLE DR. JUSTICE VINEET KOTHARI

Mr. Kamal Dave, for the petitioners. Ms. Varsha Bissa for the respondent <><><>

Having heard the learned counsel for the parties and havingperused the material placed on record, we are unable to find anyreason to consider interference in the just and proper order passedby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (‘theCAT’) in OA No.06/Jodhpur/2012.

The applicant-respondent retired as Head Clerk from the officeof Chief Works Manager, North Western Railway on 13.07.1988. Arevised PPO was issued pursuant to implementation of 6[th] PayCommission recommendations putting him in the scale of Rs.5000-8000. Subsequently, it was sought to be alleged that the applicanthad been incorrectly fixed; and while reducing the pension,consequential deduction orders were immediately issued.Admittedly, such orders for reduction and deductions were madewithout any notice to the applicant-respondent.

In the OA filed by the applicant-respondent, the CATconsidered the law applicable to the case that if deduction was at all to be made, a notice should have been issued to the applicant and he should have been given an opportunity of being heard. The CAT, accordingly, issued the following directions:

“(i)No recovery should be made of the amount alreadypaid as per Annex.A/3.(ii)The respondents will issue a notice and given to theapplicant of being heard in case it is decided that hispension is to be reduced which should be reduced from thedate of the said notice.”

The CAT further proceeded to clarify its order in the following:- “6.The learned counsel for applicant argued that thethings are required to be clarified. It is further directed thatthe respondents will issue a show cause notice to theapplicant within 15 days of this order and thereafter theapplicant will get one months time to file reply and the matterwill be decided by the respondents organization at theearliest possible date. The amount of recovery till the dateof notice will stand refunded. The respondent organizationwill refund the amount to the applicant within a period of onemonth.”

Questioning the order aforesaid, it is sought to be contendedthat pension could only be claimed as of right as per the entitlement;and any error in respect of fixation will not extend any substantiveright to receive erroneously enhanced pension. It is also submittedthat even when the directions were issued for affording opportunity ofhearing, simultaneous directions for refund of the amount alreadyrecovered is not legally sustainable. The decision of the Hon'bleSupreme Court in the case of Chandi Prasad Uniyal & Ors Vs. Stateof Uttarakhand & Ors : (2012) 8 SCC 417 has been referred.

Noteworthy it is that in Chandi Prasad Uniyal (supra), theHon'ble Supreme Court referred to the following passage from the decision in Syed Qadir Vs. State of Bihar : (2009) 2 SCC 117:-

Conclusion

“Undoubtedly, the excess amount that has been paidto the appellants teachers was not because of anymisrepresentation or fraud on their part and the appellantsalso had no knowledge that the amount that was being paidto them was more than what they were entitled to. It wouldnot be out of place to mention here that the FinanceDepartment had, in its counter affidavit, admitted that itwas a bona fide mistake on their part. The excess paymentmade was the result of wrong interpretation of the rule thatwas applicable to them, for which the appellants cannot beheld responsible. Rather, the whole confusion wasbecause of inaction, negligence and carelessness of theofficials concerned of the Government of Bihar. Learnedcounsel appearing on behalf of the appellants teacherssubmitted that majority of the beneficiaries have eitherretired or are on the verge of it. Keeping in view thepeculiar facts and circumstances of the case at handand to avoid any hardship to the appellants teachers, weare of the view that no recovery of the amount that hasbeen paid in excess to the appellants-teachers shouldbe made."

Thereafter, the Hon'ble Supreme Court pointed out that suchdirections were given while keeping in view the peculiar facts andcircumstances of that case since the beneficiaries had retired orwere on the verge of retirement. The Hon'ble Supreme Courtobserved: - “We may point out that in Syed Abdul Qadir casesuch a direction was given keeping in view of the peculiarfacts and circumstances of that case since thebeneficiaries had either retired or were on the verge ofretirement and so as to avoid any hardship to them.”

The Hon'ble Supreme Court further observed that there couldbe exceptional cases, but the law has not been laid down in blanketform that recovery could be made only for mis-representation orfraud in the following: - 13 We are not convinced that this Court in variousjudgments referred to hereinbefore has laid down anyproposition of law that only if the State or its officialsestablish that there was misrepresentation or fraud on thepart of the recipients of the excess pay, then only theamount paid could be recovered. On the other hand,most of the cases referred to hereinbefore turned on thepeculiar facts and circumstances of those cases eitherbecause the recipients had retired or were on the verge ofretirement or were occupying lower posts in theadministrative hierarchy.

14. We are concerned with the excess payment ofpublic money which is often described as “tax payers’money” which belongs neither to the officers who haveeffected over-payment nor that of the recipients. We fail tosee why the concept of fraud or misrepresentation is beingbrought in in such situations. The question to be asked iswhether excess money has been paid or not, may be dueto a bona fide mistake. Possibly, effecting excess paymentof public money by the Government officers, may be due tovarious reasons like negligence, carelessness, collusion,favouritism, etc. because money in such situation does notbelong to the payer or the payee. Situations may alsoarise where both the payer and the payee are at fault, thenthe mistake is mutual. Payments are being effected inmany situations without any authority of law and paymentshave been received by the recipients also without anyauthority of law. Any amount paid/received without theauthority of law can always be recovered barring fewexceptions of extreme hardships but not as a matter ofright, in such situations law implies an obligation on thepayee to repay the money, otherwise it would amount tounjust enrichment.”

The facts of the present case are that the applicant-respondent is about 85 years of age and admittedly, the ordershaving civil and evil consequences of reduction and recovery weremade in the name of so called mistake but without any notice to theapplicant. The CAT has taken an overall view of the matter and hasissued befitting directions that in case the pension is to be reduced,the present petitioners will issue a notice of hearing to the applicantand take a proper decision thereafter.

In the overall analysis, on the peculiar facts and circumstances

c.p.goyal/-

DBCWP No.8054/2012Union of India & Ors. Vs. Chhuni Lal Purohit where the respondent is a retired pensioner in 85 years of age; andwhere reduction of, and recovery from, pension was ordered by thepetitioners without notice to the pensioner, the present case directlyanswers to the description of an exceptional case of hardship. In thecircumstances of the case, the order passed by the CAT appears tobe just and proper and does not call for interference in the writjurisdiction.

It goes without saying that the petitioners are free to takerecourse to the option left open by the CAT.

Subject to observations foregoing, the writ petition standsdismissed.

(Dr. VINEET KOTHARI), J.

(DINESH MAHESHWARI), J.