V.G Nair v. Union of India and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, ``` ``` 1945 ``` ## `WP(C) NO. 34052 OF 2015` ## `PETITIONERS:` ``` V.G NAIR, AGED 64 YEARS EX.CENTRAL INDUSTRIAL SECURITY FORCE PERSONNEL, S.R.NIVAS, NJANDOORKONAM, CHEMPAZHANTHY PO, THIRUVANANTHAPURAM. BY ADVS. ``` ``` SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SEBASTIAN ``` ## `RESPONDENTS:` - `1 UNION OF INDIA, REPRESENTE BY CABINET SECRETARY, GOVERNMENT OF INDIA, NEW DELHI-110 001.` - `2 CENTRAL PENSION ACCOUNTING OFFICE, REPRESENTED BY CHIEF CONTROLLER OF ACCOUNTS, TRIKOOT-2, BHIKAJI CAMA PLACE, NEW DELHI-110 066.` - `3 PAY AND ACCOUNTS OFFICER, REVISION AUTHORITY FOR CENTRAL CIVIL PENSIONS, CENTRAL PENSION ACCOUNTING OFFICE, TRIKOOT-2, BHIKAJI CAMA PALACE, NEW DELHI-110066.` - `4 SENIOR ACCOUNTS OFFICER, PAY AND ACCOUNTS OFFICE (CENTRAL INDUSTRIAL SECURITY FORCE), CISF COMPLEX, MB ROAD, SAKET, NEW DELHI` - `5 ACCOUNTS OFFICER, REGIONAL PAY AND ACCOUNTS OFFICE (CENTRAL INDUSTRIAL SECURITY FORCE) AG OFFICE COMPLEX PO NO.14, HINOO, RANCHI, JHARKHAN-834002.` W.P(C).34052/2015 2 ``` 6CHIEF MANAGER, STATE BANK OF INDIA, CENTRALISED PENSION PROCESSING CENTRE, GANAPATI KOVIL ROAD, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 014. BY ADVS. SMT.O.M.SHALINA, CGC MANU S., ASG OF INDIA SRI.R.S.KALKURA, SC, SBI SMT.O.M.SHALINA CGC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P(C).34052/2015 3 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------W.P(C).No.34052 of 2015 ------------------------------------------Dated this the 15[th] day of March, 2024** ## **JUDGMENT** The above Writ Petition is filed with the following prayers: i) declare that respondents are not entitled to effect recovery from the monthly pension of the petitioner towards alleged excess payment; ii) issue a writ in the nature of certiorari or any other writ, direction or order to quash Exts.P3,P4 and P8; iii) issue a writ in the nature of mandamus, or any other appropriate writ, direction or order, restraining respondents 2 to 6 from effecting recovery from the monthly pension of the petitioner in furtherance of Exts.P3,P4 and P8; iv) issue a writ in the nature of mandamus, or any other appropriate writ, direction or order, directing respondents 2 to 6 to take appropriate measures to restore and repay the amounts recovered from the petitioner from September 2014 till date in furtherance of Exts.P3 and P4 with interest; W.P(C).34052/2015 4 v) grant such other reliefs as deemed fit by this Hon'ble Court; **==> picture [32 x 12] intentionally omitted <==** 2. The petitioner was a Head Constable in the Central Industrial Security Force and retired from service voluntarily on 31.04.2000 after the service of about 28 years and 2 months. On 26.06.2000, the 3[rd] respondent sanctioned pension to the petitioner vide Ext.P1 order. It is submitted that the 6[th] respondent herein was authorized as the pension disbursing agency for the monthly pension of the petitioner. It is also submitted that, on 22.06.2011, the 3[rd] respondent revised the monthly pension of the petitioner with effect from 01.01.2006 as Rs.7588/-. Ext.P2 is the communication of the 3[rd] respondent. Thereafter, on 04.08.2014, the 3[rd] respondent issued communication to the 6[th] respondent to the effect that the basic pension of the petitioner was revised as Rs.5059/- with effect from 01.01.2006 in accordance with the 6[th] Central Pay Commission. Ext.P3 is the communication. Pursuant to Ext.P3, the 6[th] respondent issued communication dated 15.09.2014 to the petitioner stating that the petitioner was being W.P(C).34052/2015 5 paid basic pension at the rate of Rs.7588/- from January 2006 to August 2014, instead of Rs.5059/- and thereafter an amount of Rs.3,72,768/- was paid in excess to him. Therefore, it was informed that, there will be recovery from his future pension at the rate of Rs.4860/- per month for a period of 77 months from September 2014 to January 2021. Ext.P4 is the communication. The contention of the petitioner is that, Ext.P4 is illegal, arbitrary and unjust. Aggrieved by the same, the petitioner caused a lawyer notice to the 3[rd] and 6[th] respondents demanding stoppage of recovery from his monthly pension. Ext.P5 is the lawyer notice. Since there was no reply, another notice was served on 27.06.2015 as evident by Ext.P6. Thereafter, the 6[th] respondent replied to Ext.P6 stating that the recovery was being effected as per the instruction of the 3[rd] respondent and it was unable to stop recovery. Ext.P7 is the communication. On 04.08.2015, the 4[th] respondent issued reply to the petitioner stating the revision of pension as Rs.7588/- effected in 2011 was wrong. Ext.P8 is the communication. Aggrieved by Exts.P3, P4 and P8, this Writ Petition is filed. W.P(C).34052/2015 6 3. Heard learned counsel for the petitioner and the Government Pleader. 4. The counsel for the petitioner submitted that the recovery from the pension of the petitioner is in violation of the dictum laid down by this Court in **State of Punjab v. Rafiq Masih** _[AIR 2015 SC 696]_ . The Central Government Counsel, who appeared for the respondent, supported the impugned orders. 5. It is an admitted fact that the petitioner retired from service on 31.04.2000. Thereafter, the recovery was effected from 2006 onwards based on Ext.P3, P4 and P8. In **Rafiq Masih’s** case (supra), the Supreme Court considered certain situations wherein recoveries by employers is impermissible. It will be better to extract paragraph 12 of the above judgment. ‘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: W.P(C).34052/2015 7 (i) Recovery from employees belonging to ClassIII 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. _( underline supplied)_ (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.’ 6. The petitioner's case will squarely come within the purview of **Rafiq Masih's** case (supra). Recovery from retired employees or employees who are due to retire within one year, of W.P(C).34052/2015 8 the order of recovery and 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 is impermissible in law. In such circumstances, I am of the considered opinion that the impugned orders in this case are to be set aside. Therefore, this writ petition is allowed in the following manner : - 1) It is declared that the respondents are not entitled to effect the recovery from the monthly pension of the petitioner towards alleged excess payment. - 2) Exts.P3, P4 and P8 are quashed. - 3) The respondents 2 to 6 are directed to take appropriate measures to restore and repay the amounts recovered from the petitioner and pay the pension in accordance with law. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ W.P(C).34052/2015 9 ## `APPENDIX OF WP(C) 34052/2015` ## `PETITIONER EXHIBITS` ``` P1 : A TRUE COPY OF PENSION PAYMENT ORDER NO.237040000734 DT 26-6-2000 ``` ``` P2:ATRUECOPYOFCOMMUNICATION NO.237040000734/734136/A1 DT 22-6-2011 OF THE 3RD RESPONDENT. ``` ``` P3:ATRUECOPYOFCOMMUNICATION NO.237040000734/734136/A2 DT 4-8-2014 ISSUED BY THE 3RD RESPONDENT. ``` ``` P4 : A TRUE COPY OF COMMUNICATION NO.CPPC/HA/6686/54 DT 15-09-2014 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. ``` ``` P5 : A TRUE COPY OF LAWYER'S NOTICE DT 19-5-2015 ADDRESSED TO RESPONDENTS 3 AND 6. ``` ``` P6 : A TRUE COPY OF LAWYER'S NOTICE DT 27-6-2015 ADDRESSED TO RESPONDENTS 3 AND 6. ``` ``` P7 : A TRUE COPY OF COMMUNICATION DT 15-7-2015 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. ``` ``` P8:ATRUECOPYOFCOMMUNICATION NO.RPAO/CISF/MHA/RAN/REV/2-15-16 DT 4-8-2015. ```