IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY] THURSDAY, THE 2ND DAY OF JANUARY 2014/12TH POUSHA, 1935 OP (CAT).No. 2941 of 2013 (Z) AGAINST THE ORDER IN OA 407/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 17.1.2013 PETITIONER: K.SARASWATHI, W/O.LATE P.RAMACHANDRAN, SARAS HOUSE, CHOKKANATHAPURAM, PALAKKAD. PIN-678 005. BY ADVS.SRI.H.BADARUDDIN SMT.B.SHAMEERA SMT.NILA. C.V. RESPONDENTS: 1. GENERAL MANAGER, SOUTHERN RAIWLAY, CHENNAI-600 003. 2. SENIOR DIVISIONAL FINANCE MANAGER, OFFICE OF THE SENIOR DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, PALAKKAD-678 002. 3. SENIOR MANAGER, CANARA BANK, KALPATHY BRANCH, PALAKKAD-678 003. BY ADV. SRI.C.S.DIAS,SC, RAILWAYS R3 BY ADV. SRI.M.R.GOPALAKRISHNAN NAIR BY SRI.P.GOPINATH MENON, SC, CANARA BANK THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 2941 of 2013 (Z) APPENDIX PETITIONER'S EXHIBITS P1-COPY OF THE ORIGINAL APPLICATION NO.407/2012, FILED BY THE PETITIONER/APPLICANT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BRANCH. P2- COPY OF THE INTERIM ORDER DT.31ST MAY 2012 IN CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P3- COPY OF THE REPLY STATEMENT OF THE 3RD RESPONDENT ALONG WITH ANNEXURE IN O.A.407/2012. P4- COPY OF THE REPLY STATEMENT FILED BY THE 1ST AND 2ND RESPONDENT ALONG WITH ANNEXURE. P5- COPY OF THE M.A.913/2012. P6- COPY OF THE REPLY IN THE ABOVE M.A.913/2012. P7- COPY OF THE M.A.NO.1030/2012. P8- COPY OF THE RE-JOINDER FILED BY THE PETITIONER/APPLICANT IN ORIGINAL APPLICATION NO.407/2012. P9- COPY OF THE ORDER IN O.A.407/2012 DT.17.1.2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL. P10- COPY OF THE JUDGMENT IN [CASE NUMBER] ON 15.7.2013 IN [PRECEDENT]. P11- COPY OF THE RELEVANT PAGES OF THE PASS BOOK IN THE 3RD RESPONDENT BANK. RESPONDENTS' EXHIBITS : NIL /TRUE COPY P.A TO JUDGE ab 'CR' [ENTITY] & [ENTITY], JJ. [CASE NUMBER] Dated this the 2nd day of January, 2014. J U D G M E N T
[ENTITY], J.
The petitioner is the widow of a Railway pensioner. Faced with an order for recovery of excess drawn family pension, she challenged it before the Central Administrative Tribunal. Tribunal found no way to interfere with the view of the Railway that there was excess payment of family pension. Tribunal, however, granted the petitioner the relief of a direction that the excess drawn would be recovered in 60 instalments. She is hence before us.
2. Heard the learned counsel for the petitioner, learned Standing Counsel for the Southern Railway and the learned counsel for the Canara Bank, which is the disbursing agency of the Railways.
3. We do not find any ground to interfere with the Tribunal's verdict that the Railway had released the amounts in excess of what was actually due to the petitioner as family pension.
4. This takes us to the question as to whether the Tribunal was justified in refusing to inhibit the recovery proceedings.
5. Adverting to the reply statement filed by the Railways before the Tribunal, the following facts emerge:
a) Petitioner's husband [ENTITY] was a Technician Grade I in the Railways. He voluntarily retired on 15.10.2000 and died five days thereafter on 20.10.2000. Was he so sick when he sought voluntary retirement, to die 5 days thereafter? No material either way is shown to us.
b) On [ENTITY]'s death, petitioner was sanctioned family pension. She was sanctioned enhanced family pension at Rs.2456/- + relief w.e.f. 21.10.2000 to 20.10.2007 and ordinary family pension at the rate of Rs.1613/- + relief thereafter. This was done as per Pension Payment Order dated 20.1.2001.
c) Following the aforesaid, petitioner was receiving family pension from Kalpathy Branch of Canara Bank.
d) Railways, in the course of spot checks, a procedure adopted since May 2001 as per the instructions of the Financial Commissioner, conducted spot check of Canara Bank, Kalpathy Branch on 29.9.2011. It was then noticed that there were over payments of family pension to the petitioner. That led to the issuance of the letter dated 9.4.2012 by the Assistant Divisional Finance Manager, Palakkad of Southern Railway to the petitioner intimating about the over drawals and requiring her co-operation with the bank authorities by remitting the pension drawn in excess. It was that decision, that was challenged by the petitioner before the Tribunal.
6. The aforenoted reply statement of the Railways discloses that the eligibility of the petitioner for enhanced family pension was only upto 20.10.2007 as per the statutory rules and thereafter, she was eligible only to ordinary family pension. The continued payment of enhanced family pension + relief beyond 20.10.2007 had resulted in over payment of pension and relief. This is how the total over drawals were calculated to be an amount of Rs.1,39,378/- drawn after 20.10.2007 upto the date of inspection, 29.9.2011, that is to say, for a period of more than 4= years.
7. Here, we need to advert to the uncontroverted facts pleaded by the petitioner in her original application before the Tribunal, supported by the contents of her representation before the Railways, as regards her personal situation. She had pleaded before the establishment and before the Tribunal that she is very poor, suffering from Arthalgia, Diabetes and Hyper Tension etc. and is not even able to walk properly and do her day to day activities and that her two daughters are married and live in their matrimonial homes and further that her only son is working somewhere away as a Coolie and she badly needs money for food, water and medicine, which, all put together, would come to Rs.8,000/- or more per month. She also said that she has no support from anybody for years and she is indebted to local financing persons for personal loan from them even for treatment of her prolonged illness.
8. With the aforesaid, we revert to the learned Tribunal's order to note that the relief by way of instalments was granted by merely stating that "having regard to the hardship put forth by the applicant," such relief by way of instalment is being done. Here, while dissuading ourselves from saying that the Tribunal ought to have further stated clear and cogent reasons for the particular manner of exercise of discretion, we think that it would be proper on our part to look into the aforenoted facts as regards the petitioner in the contextual exercise of judicial discretion in such situation in terms of the [ACT] and the law laid in this regard.
9. The learned counsel for the Railways and the learned counsel for the Bank have drawn our attention to the judgment by the Division Bench of this Court in [PRECEDENT], following [PRECEDENT] to state that the pension due is a right conferred by the rules and the right to get family pension after the death of a pensioner has also to be availed of, only subject to the conditions prescribed and in the absence of any statutory interdiction from recovering the excess drawn family pension, it can be recovered since such drawals have to be taken as one on mutual mistake.
10. [PRECEDENT] (supra) dealt with over payments made to an employee while in service. [PRECEDENT] (supra) was rendered deciding the case of a person who was wholly ineligible to claim family pension in terms of the matrimonial tie that he had with the pensioner concerned. [PRECEDENT]] and [PRECEDENT] referred to by the learned Tribunal in the impugned order were cases rendered in relation to fixation of pay/allowances and not to pension or family pension. The case in hand deals with payment of family pension to the widow of a pensioner. It is here that we would make reference firstly to the judgment of the Apex Court in [PRECEDENT] (supra) which, among other things, stated that except few cases pointed out in [PRECEDENT] (supra) and [PRECEDENT], the excess payment made due to the wrong/irregular pay fixation can always be recovered. Immediate advertance to Col.[PRECEDENT] (supra) would show that it was a case which dealt with different issues which were formulated in paragraph 10 of that judgment as reported in SCC. Issue No.(iv) dealt with by the Apex Court was as to whether the establishment was not entitled to recover the excess payments made, even if the circular impugned in that case is found to be valid. Dilating on that question, the discussions commenced from paragraph 27 of that judgment as reported in SCC. After noticing [PRECEDENT], [PRECEDENT] and [PRECEDENT], the law was laid precisely stating as to how judicial discretion would be exercised in different situations. We may profitably quote the following from Col.[PRECEDENT] (supra):
"28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7.6.1999 till the issue of the clarificatory circular dated 11.9.2001. Insofar as any excess payment made after the circular dated 11.9.2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made."
(emphasis supplied)
11. Reverting to the facts of the case in hand, the petitioner is a widow who stands with the uncontroverted plea about her family situation and matters affecting her health as noted herein above. The over drawals enjoyed by her were for a spread out period of more than 4= years. Even if the instalment facility granted by the Tribunal is operated, that would reduce her future pension by more than Rs.2,400/- per month. 7 12. In the aforenoted back-drop of stark realities, taking into consideration the relevant facts and circumstances, we may say that the relevant aspects appear to have escaped the notice of the learned Tribunal for an appropriate exercise of the judicial discretion in terms of the [ACT] and the laws. The right to life guaranteed to the petitioner under [SECTION] of the [ACT], coupled with the constitutional situs of the petitioner as a woman entitles her to special treatment while socio-economic support is being given. These are constitutional rights. They have to be assimilated in the back-drop of the fact that the family pension is basically a social security measure intended to give effect to the concept of social welfare State and the doctrine of dignity, which is the most cherished and indefeasible among the values and rights, basic to the [ACT]. With these yard-sticks in mind, we are of the view that the reasoning of the learned Tribunal to give the petitioner only a confined relief by way of installments does not stand scrutiny on the touch stones of constitutional doctrines that ought to have weighed while moulding the relief.
13. In the aforesaid view of the matter, the impugned decision of the Tribunal allowing the establishment to recover the over drawals of family pension warrants interference in exercise of authority under [SECTION] and [SECTION] of the [ACT], since if it is allowed to stand, would result in manifest injustice to the petitioner and deprivation of her constitutional rights as a citizen of India.
In the result, this original petition is allowed in part setting aside the refusal of the Tribunal to grant wholesome relief against recovery of excess drawn family pension. It is hereby ordered that Annexure A4 before the Tribunal authorising recovery will stand quashed to the aforesaid extent, however that, tapering down of the family pension in terms of that order will stand. Whatever amounts have been recovered by the establishment or its authorised bank in terms of that recovery order shall be refunded to the petitioner along with the next monthly family pension. No costs.
[ENTITY] JUDGE Sd/-
[ENTITY] JUDGE ab