Item No.9
THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
W.A.No.313 of 2020
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. The appellant/Bank (respondent No.3 in W.P.No.34754 of
2013) is aggrieved by the judgment dated 14.11.2019 passed by the learned Single Judge allowing the relief prayed for by the respondent No.1/writ petitioner challenging the action taken by it and the respondents No.2 and 3/Union of India and the Ministry of Finance in issuing proceedings dated 05.11.2013 for recovering a sum of Rs.11,42,440/- allegedly paid to him towards double pension for the period reckoned from the date of the demise of his wife i.e., from 07.03.2006 till September, 2013.
2. The submission made by the respondent No.1/writ petitioner before the learned Single Judge was that he was unaware of the fact that he was not entitled to claim family pension upon the demise of his wife, who was a freedom fighter and based on an application submitted by him, the District Collector had passed an order on 24.04.2006, granting him family pension which he continued to draw till the respondents in the writ petition called upon him to refund the same.
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3. The said petition was contested by the appellant and the respondents Nos.2 and 3. The respondents No.2 and 3 referred to a Circular dated 15.06.1994 wherein, the Government had declared that where both, husband and wife are drawing freedom fighter's pension individually under the Swatantrata Sainik Samman Pension Scheme, the same cannot be transferred in the name of the spouse upon the death of the other spouse. The policy guidelines issued subsequently on 13.10.2000, also made it clear that dependants of family pension should fulfil twin conditions, firstly of falling in the eligible category of relationship and secondly of being a dependant of the pensioner, without having any independent means of livelihood. Stating that the respondent No.1/writ petitioner, being a freedom fighter, had a means of livelihood and was not entitled to receive family pension on the demise of his wife, the respondent Nos.2 and 3 sought dismissal of the writ petition.
4. As for the appellant/Bank, it had submitted in the counter affidavit that during the course of conducting an audit of the pension accounts in the year 2013, it transpired that the respondent No.1/writ petitioner is not entitled to payment of any pension upon the demise of his wife, since he was himself a pensioner under the aforesaid scheme and had been receiving pension regularly. It was further submitted that it was under a bona fide mistake that the officers of the appellant/Bank had been releasing pension to the respondent No.1/writ petitioner without taking notice of the Circular dated W.A.No.313 of 2020 Page 2 of 5 13.05.2011 which was only a reiteration of an earlier Circular dated 15.06.1994. Once the said mistake was brought to the notice of the appellant/Bank, it had issued the Letter dated 05.11.2013 to the respondent No.1/writ petitioner seeking refund of the excess amount to the tune of Rs.11,42,440/- received by him towards pension on the demise of his wife.
5. Upon hearing the parties and keeping in mind the fact that the respondent No.1/writ petitioner was a senior citizen aged 91 years, the learned Single Judge opined that he could not be blamed for receiving the family pension and he would be put to great hardship, if coercive steps were taken to recover the aforesaid amounts from him. As a result, while holding that the respondent No.1/writ petitioner was not entitled to family pension in terms of the Circular dated 13.05.2011, the learned Single Judge restrained the respondents from recovering any amount from him.
6. Ms. Dyumani, learned counsel for the appellant/Bank submits that after the impugned order came to be passed, the appellant/Bank received a Letter dated 28.02.2020 from the Union of India demanding from it payment of the excess amount that was erroneously paid over to the respondent No.1/writ petitioner, thus compelling the Bank to seek appropriate legal recourse by filing W.P.No.12765 of 2020 which is pending before the learned Single Judge. He states that officers of the appellant/Bank had made a bona fide error in paying pension to the respondent No.1/writ petitioner W.A.No.313 of 2020 Page 3 of 5 upon the demise of his wife and refusing to accept the said explanation, the Union of India is insisting on seeking refund of the said amount.
7. We are of the opinion that once the appellant/Bank has taken appropriate steps to file a writ petition to lay a challenge the Letter dated 28.02.2020 issued by the Union of India for recovery of Rs.11,42,440/-, it is now for the Bank to persuade the learned Single Judge to set aside the said demand, but that itself will not be a ground for this court to interfere in the impugned order, for the reason that no mala fides of any nature have been attributed to the respondent No.1/writ petitioner in seeking family pension upon the demise of his wife. Nor did he make any misrepresentation to the authorities. He had filed an application before the District Collector for payment of family pension under a bona fide belief that he was entitled to receive the same upon the demise of his wife. It was for the District Collector to have appraised himself of the correct legal position before issuing the order dated 24.04.2006 granting family pension to the respondent No.1/writ petitioner. Only after the said order was issued, did the respondent No.1/writ petitioner start receiving family pension.
8. Even the appellant/Bank did not take any steps to bring the Circular dated 13.05.2011 to the notice of the District Collector for him to recall the order dated 24.04.2006. The said position continued till the year 2013, when an audit of the pension accounts was conducted by the appellant/Bank and it was noticed for the first time W.A.No.313 of 2020 Page 4 of 5 that the respondent No.1/writ petitioner was receiving family pension contrary to the Circular dated 13.05.2011. By now, the respondent No.1/writ petitioner would have reached the ripe old age of 95 years. He can hardly be expected to face coercive proceedings by appellant/Bank and the respondents No.2 and 3 for recovery of amounts released in his favour, when he cannot be blamed in any manner for receipt of the family pension.
9. The present appeal is therefore dismissed as meritless along with the pending applications, if any, while upholding the impugned order. However, it is clarified that this order shall not come in the way of the appellant/Bank in pursuing the writ petition filed by it challenging the Letter dated 28.02.2020 issued by the Union of India for seeking recovery of the excess amount of Rs.11,42,440/- paid by the Bank to the respondent No.1/writ petitioner towards family pension. All the pleas, as may be available to both the appellant/Bank and the respondents Nos.2 and 3 are kept open for adjudication in the captioned writ petition (W.P.No.12765 of 2020).
______________________________ HIMA KOHLI, CJ ______________________________ B. VIJAYSEN REDDY, J 16.06.2021 JSU W.A.No.313 of 2020 Page 5 of 5