G. Balakrishna Pillai v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939 **OP (CAT).No. 301 of 2017 (Z) -----------------------------** AGAINST THE ORDER/JUDGMENT IN OA 271/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 23-01-2017 PETITIONER(S)/RESPONDENTS: ------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY AND DIRECTOR GENERAL, DEPARTMENT OF POST, NEW DELHI - 110 001. 2. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM - 695 033. 3. THE SENIOR SUPERINTENDENT OF POST OFFICES, KOLLAM POSTAL DIVISION, PIN - 691 001. 4. THE POST MASTE, OFFICE OF THE POST MASTER, KOLLAM - 691 001. 5. THE DIRECTOR OF ACCOUNTS (POSTAL), PENSION SECTION, G.P.O COMPLEX, THIRUVANANTHAPURAM - 695 001. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT/APPLICANT: ------------------------ G.BALAKRISHNA PILLAI RETIRED SUB POST MASTER (BCR),KALLUVATHUKKAL S.O KOLLAM RESIDING AT SREE VILAS, NORTH MYLAKKAD, KANNANALLOOR P.O, KOLLAM - 691 576. BY SRI.S.VISHNU THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 301 of 2017 (Z) ----------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1- TRUE COPY OF THE OA.NO.180/00271/2016 DATED 29/03/2016 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM. EXHIBIT P2- TRUE COPY OF THE REPLY STATEMENT DATED 14/06/2016 FILED BY THE PETITIONERS. EXHIBIT P3- TRUE COPY OF THE REJOINDER DATED 21/08/2016 FILED BY THE RESPONDENT. EXHIBIT P4- TRUE COPY OF THE ORDER IN OA.NO.180/00271/2016 DATED 23/01/2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. RESPONDENT(S)' EXHIBITS NIL /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & SHIRCY V, JJ.** .............................................................................. **O.P(CAT)No.301 OF 2017** ......................................................................... **Dated this the 25[th] October, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Ext.P4 order passed by the CAT in O.A.No.271 of 2016 is under challenge at the instance of the respondents in the O.A. The grievance is with regard to the interception made by the Tribunal with the right of recovery, in respect of erroneous fixation of pension and payment effected by the petitioners herein. 2. According to the petitioners, the respondent/applicant, who was serving as a Sub Postmaster at Kalluvathikkal Post Office, retired from the service on attaining the age of superannuation on 30.11.2005. It is stated that pay fixation was effected in the relevant scale, also granting the benefit under the BCR giving fixation at appropriate levels. Pursuant to implementation of recommendation of the 6[th] Central Pay Commission, the pension of the applicant came to be re-fixed as Rs.6997/- in the scale of pay of Rs.5500-9000/-, which according to the petitioners was an erroneous exercise, in so far as it **2** ## **O.P(CAT)No.301 OF 2017** should have been effected in the Scale of Pay of Rs.5000-8000/-. 3. It is borne out by the records that the respondent applicant had approached the Tribunal earlier, by filing O.A.No.664 of 2014, seeking for issuance of revised PPO (Pension Payment Order)contending that he was entitled to get full pension without any pro-rata deduction. Reliance was also sought to be placed on the verdict passed by the Tribunal in identical cases. It was accordingly, that the O.A. was allowed. 4. Admittedly, no challenge was raised by the petitioners against the said verdict in O.A.664/2014 and it was given effect to, as well. But while implementing the said order, the error occurred in the earlier fixation was noted and according to the petitioners, the pension of the respondent ought to have been only at Rs.6750/- instead of Rs.6997/-(which resulted in overpayment of Rs.45992). It was in the said circumstance that the proceedings were sought to be corrected, also for causing recovery of excess amount, which was sought to be challenged by filing the O.A. with the following prayers: _“1. Call for the records leading to the issue of Annexure A7 and set aside Annexure A7 to the extent pension is revised and reduced to Rs.6750/- w.e.f._ **3** ## **O.P(CAT)No.301 OF 2017** _01.01.2006._ _2. Call for the records leading to the issue of Annexure A8 and set aside Annexure A8 to the extent recovery of Rs.45,992/- is ordered from the pension of the applicant on account of reduction of pension from Rs.6997/- to Rs.6750/-._ _3. Call for the records leading to the issue of Annexure A9 and set aside Annexure A9 by which pension payable has been fixed at Rs.6750/- + DR w.e.f. 01.03.2016, instead of Rs.6997/- + DR._ _4. Direct the respondents not to effect any recovery from the pensionary benefits due to the applicant._ _5. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice_ _6. Award the cost of these proceedings.”_ 5. The claim was resisted by the petitioners herein by filing a detailed reply statement. After hearing both the sides, the Tribunal upheld the correction of pension effected by the Department holding that the respondent/applicant was entitled only to have fixation at Rs.6750/- and not Rs.6997/-. However, with regard to the course for recovery sought to be pursued by the Department, it was intercepted, placing reliance on the verdict passed by the Apex Court in _**State of Punjab and ors**_ **O.P(CAT)No.301 OF 2017** **4** _**etc. vs. Rafiq Masih.**_ [ **AIR 2015 SC 696** ]. This, according to the petitioners is not correct, in so far as the circumstances which were prevailing in the case considered by the Supreme Court are not available in the instant case. In support of the said contention, it is pointed out that, by virtue of implementation of the recommendation of the 7[th] CPC, the respondent/applicant has been sanctioned amounts considerably at higher level, by virtue of which, the monthly pension payable to the respondent would be Rs.17348/- and as such, the excess payment of Rs.45992/- could be easily recovered, even by way of installments and that no prejudice would be caused to the respondent. 6. The above argument does not appear to be attractive. The legal position has been made clear by the Supreme Court in _**State of Punjab and ors etc. vs. Rafiq Masih.**_ [ **AIR 2015 SC 696** ]. The erroneous fixation was resulted at the hands of the petitioners/Department and there was no contribution in any manner from the employee concerned. That apart, it was noted by the Department only much later and steps were pursued to have it corrected and excess amount recovered. There is also no **O.P(CAT)No.301 OF 2017** **5** dispute to the fact that the Tribunal while passing Ext.P4 order has upheld the stand taken by the Department, in turn upholding the correct fixation, by virtue of which it was ordered to fix the pay in the lower scale of Rs.5000-150-8000/-, instead of Rs.5500-175-9000/-. By virtue of the said declaration, there will not be any drainage of public money on a continuous basis, but for the excess payment already effected to the tune of Rs.45992/-. Recovery from the pensioners has to be only under exceptional circumstances, as ordered by the Apex Court in _**State of Punjab and ors etc. vs. Rafiq Masih**_ [ **AIR 2015 SC** **696** ]. As per the said verdict, the specific circumstances, under which recovery could be pursued stands clarified by the Apex Court and the Tribunal has followed the said verdict. That apart, there is a subsequent ruling rendered by the Supreme Court as reported in **AIR 2016 SC 3523 (** _**High Court of Punjab and Haryana & others vs. Jagdev Singh**_ ); whereby it has been held that such recovery is possible only if an 'undertaking' is obtained. Admittedly, no such 'undertaking' has ever been obtained by the petitioners from the respondent herein. 7. In the said circumstance, we do not find it as a fit case **6** ## **O.P(CAT)No.301 OF 2017** to interfere with Ext.P4 order passed by the Tribunal as to the recovery rights, while upholding re-fixation in accordance with law. Interference is declined and the O.P. stands dismissed. **P.R. RAMACHANDRA MENON, JUDGE** **SHIRCY V, JUDGE** lk