Employees Provident Fund Commissioner, Sub Regional Office, Kaloor, Ernakulam v. D. Janamma and State Bank of India (WA No. 2251 of 2015)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938 WA.No. 2251 of 2015 () IN WP(C).12718/2012 -------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 12718/2012 of HIGH COURT OF KERALA DATED 09-10-2014 ## APPELLANT/1ST RESPONDENT: -------------------------------------------- EMPLOYEES PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, KALOOR, ERNAKULAM, KOCHI 682017 BY ADVS.SRI.N.N.SUGUNAPALAN (SR.) SMT.T.N.GIRIJA, SC,EPF ORGANISATION ## RESPONDENTS/PETITIONER & 2ND RESPONDENT: ------------------------------------------------------------------------ 1. D. JANAMMA W/O.G.SREERAMACHANDRAN, CHANDRAMANGALAM VEEDU, SANATHANAPURAM P.O., ALAPPUZHA. 688003 2. THE MANAGER STATE BANK OF INDIA, NH 47, ALAPPUZHA BRANCH, ALAPPUZHA 688001 R1 BY ADV. SRI.S.SANAL KUMAR ADV. SRI.A.S.SAJUSH PAUL R2 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R2 BY ADV. SMT.S.AMBILY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------W.A.No.2251 OF 2015** **-------------------------------------------------DATED THIS THE 7[th] DAY OF JULY, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellant is the 1[st] respondent in W.P.(C)No.12718/2012, a Writ Petition filed by the 1[st] respondent herein seeking to quash the demand made in Ext.P5 for 2,52,361/-, towards alleged excess₹ payment of family pension, and for a writ of mandamus commanding the appellant to pay her monthly family pension at the rate of 1,986/- with effect from December, 2011. ₹ 2. The pleadings and materials on record would show that the writ petitioner, the 1[st] respondent herein, is the widow of one Sri.G.Sreeramachandran, who took voluntary retirement on 31.8.1995 from the service of the Fertilizers and Chemicals Travancore (FACT) at Udyogamandal. He died on 26.10.1997. After his death, the writ petitioner made an application dated 6.3.2000 for payment of pension under the Employees Pension Scheme, 1995. Pursuant to the said application, the appellant vide Ext.P1 communication sanctioned family pension at the rate of 1,750/-₹ W.A.No.2251/2015 -2- per month to the writ petitioner. Her unmarried daughter was sanctioned with family pension of 448/- per month, till she₹ attains the age of 25 years. Later, the writ petitioner was issued with Ext.P5 communication, by which she was informed that, an amount of 2,52,361/- has been paid in excess for the period₹ from 27.10.1997 to 12/11 towards widow pension and as such she has to refund the same with immediate effect. It was aggrieved by the stand taken by the appellant in Ext.P5, the writ petitioner has approached this Court in W.P.(C)No.12718/2012 seeking appropriate reliefs. 3. The appellant filed counter affidavit in the Writ Petition, contending that there was an excess payment of widow pension granted to the writ petitioner and as such, by Ext.P5 she was directed to remit excess payment of 2,52,361/-. In order to₹ justify the said demand the 1[st] respondent has relied on various provisions under Para.16(1)(b) read with Para.16(2)(a)(ii) and 16 (3)(b) of the Employees Pension Scheme, 1995. 4. The learned Single Judge, after considering the rival contentions, came to the conclusion that the demand made in W.A.No.2251/2015 -3- Ext.P5 for recovering the alleged excess payment of pension cannot be sustained. The learned Single Judge set aside the demand made in Ext.P5, after relying on the decision of the Apex Court in **Col.B.J.Akkara (Retd.) v. Government of India and others (2006 (11) SCC 709)** and **Saraswathi** v. **Southern Railway (2014 (2) KLT 494)** . Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this appeal. 5. We heard arguments of the learned Senior Counsel for the appellant. 6. The entitlement of the writ petitioner for pension under the Employees Pension Scheme, 1995 is not in dispute. Based on her application, she was sanction with family pension at the rate of 1,750/- per month, vide Ext.P1 communication of the₹ appellant, with which she would have eked out a living along with her unmarried daughter. The appellant have absolutely no case that, the alleged excess drawal was on the fault of the writ petitioner or on account of any misrepresentation made by her. The pleadings on record indicate that, the alleged excess W.A.No.2251/2015 -4- payment was on account of some computation mistake committed by the appellant. 7. As noticed by the learned Single Judge, the writ petitioner would have spend the family pension paid to her to sustain her family's existence and going by the amount drawn it could have been only a basic sustenance, not resulting in any amassment of wealth, and the upkeep of the family would have consumed the entire amount. The learned Single Judge has also noticed that, an order of refund from the future pension would further taper down an already reduced pension. It was in such circumstances, the learned Single set aside Ext.P5. However, it was made clear that, with respect to the pension payable prospective to December 2011 the appellant shall compute the same and issue an order showing the arrears payable within three weeks from the date of receipt of a certified copy of the judgment. It was also ordered that, the arrears payable shall carry interest at the rate of 6% leviable from the respective dates of payment of monthly pension, which also shall be computed and payment made to the account of the writ petitioner, W.A.No.2251/2015 -5- maintained with the 2[nd] respondent, within a period of two months thereafter. In case of default, the arrears shall carry interest at the rate of 10% from the respective months till payment. 8. The issue regarding recovery of excess payment made to employees has been dealt with by the Apex Court in a recent decision in **State of Punjab and others v. Rafiq Masih (White Washer) and others (2015 (4) SCC 334)** . After considering various judgments of the Apex Court including that in **Chandi Prasad Uniyal v. State of Uttarakhand (2012 (8) SCC 417),** the Apex Court has held as follows in Para 18 of the judgment, which reads thus: “18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recover, 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to W.A.No.2251/2015 -6- Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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.” Going by the principle laid down by the Apex Court in Rafiq Masih's case (White Washer) referred to supra, the reasoning of the learned Single Judge in interfering with the demand made in Ext.P5 to the extent indicated hereinbefore cannot be held illegal or arbitrary, warranting an interference in this appeal. W.A.No.2251/2015 -7- In the result, the writ Petition fails and the same is dismissed accordingly. ## Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- dsn ## **ANIL K.NARENDRAN, JUDGE** True copy P.S.to Judge