Telangana High Court
V.Kesava Rao Died Per Lr vs Telangana State Power Generation ... on 30 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.24656 of 2020
ORDER:
This Writ Petition is filed by the petitioner seeking a declaration that the action of the respondents in issuing Letter No.FA&CCA (Res)/Dycca(ERP)/SAO-I/AO-Pen/ D.No.294/20, dated 06.03.2020, directing the petitioner to remit an amount of Rs.6,16,317/- on the ground that there is an excess payment of pension on account of erroneous fixation of pension in the year 2014, as illegal, arbitrary and without jurisdiction and to consequently set aside the same and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the petitioner has retired from service of the respondent No.1 Corporation on 30.06.1994 as Additional Divisional Engineer. Thereafter, the petitioner was being paid pension without any objection from any person and in the year 2011, a Memo No.CE/O&M/KTPS/ SAO-I/Pen-D/PPO No.5279/ F.L./BD/ D.No.713/11, dated 2 TMD,J W.P.No.24656 of 2020 30.12.2011 was issued stating that on superannuation, pension of the petitioner was fixed at Rs.22,228/- and by virtue of G.O.O.No.480 JS(Per) 2010, an additional quantum of 15% on basic pension was added w.e.f. 01.07.2011 and the excess amount that was added was Rs.3,334/- and thus, a total sum of Rs.25,562/- was being paid as basic pension w.e.f. 01.07.2011. Subsequently, while applying the RPS of 2014, basic pension was taken at Rs.25,562/- for the purpose of consolidation and application of revised pay scale of 2014, and thus, the petitioner was being paid a sum of Rs.47,366/- as basic pay and a total gross of Rs.55,469/- was being paid. On the revision of pay on account of RPS-2018, w.e.f. 01.04.2018, the petitioner was being paid a sum of Rs.94,335/-.
3. However, in the year 2019 vide letter dated 17.10.2019, the respondent No.2 stated that there was an erroneous fixation of pension while applying RPS-2014 and consequently RPS-2018 and therefore, an amount of Rs.6,16,317/- has been paid in excess and therefore, 3 TMD,J W.P.No.24656 of 2020 directed the petitioner to refund the same. The petitioner submitted his representation on 21.11.2019 and also filed a Writ Petition i.e., W.P.No.1996 of 2020, challenging the proceedings dated 17.10.2019. The writ petition was disposed of by this Court vide orders dated 03.02.2020 directing the respondents to consider the explanation of the petitioner dated 21.11.2019 and to pass appropriate order thereon. The petitioner, in his explanation, had stated the various medical problems being faced by him and also referred to a judgment of the Hon'ble Supreme Court and the guidelines framed by the Hon'ble Supreme Court in such recovery cases. The petitioner alleges that the respondents, however, passed the impugned order dated 06.03.2020 without taking into consideration the contentions of the petitioner on the ground that the recovery is being sought to be made within a period of five years, i.e., 4 years 10 months and 17 days only and hence is within the time allowed by the Hon'ble Supreme Court for such rectification.
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4. Learned counsel for the petitioner submits that the notice dated 08.11.2019 issued by the respondent No.2 clearly shows that the excess payment of service pension was calculated from April, 2014 to September, 2019 and if that said date is taken into consideration, more than five and half years lapsed after fixation of pension w.e.f. 01.04.2014, but in order to avoid the consequences of the Hon'ble Supreme Court's judgment, the respondent is innovatively contending that the date of actual payment has to be taken into consideration and not the date with effect from which the pension is being refixed. It is further submitted that though the fixation was w.e.f. 1st April, 2014, the money was actually paid in the month of January, 2015. Therefore, the recovery is after the delay of more than five years and the same could not have been done in view of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others Vs. Rafiq Masih (White washer) and Others 1.
1 (2015) 4 SCC 334 5 TMD,J W.P.No.24656 of 2020
5. Learned Standing Counsel appearing for the respondents, has relied upon the averments made in the counter affidavit supporting the impugned notice and also submitted that the erroneous fixation of RPS-2014 was made in the year 2015 and the error was sought to be rectified in the year 2019, which is within the period of five years and therefore, the same is sustainable. The error committed in fixation of pay is explained in Para-7 of the counter affidavit as under:
"7. It is submitted that the averments made in Para Nos. 4 & 5, are not correctly stated. As per G.O.O.No.480/JS (Per)/2010, dated.14.12.2010, every pensioner by virtue of age is eligible to be paid additional quantum @ 15% after attainment of 75 years of age. In compliance with the said G.O., the additional quantum of pension @ 15% (basic pension) is paid to the Writ Petitioner on attaining 75 years of age as on 01.07.2011. But the said component does not form part of the basic pension for revision. Therefore, the Additional quantum @ 15% i.e., Rs.3,334/- is not be considered while fixing the basic pension in revised pay scales. Hence, the fixation done in RPS-2014 erroneously was rectified. The basic pension of the Writ Petitioner as on 01.04.2014 was only Rs.22,228/- and additional quantum of pension @ 15% on basic pension i.e., Rs.3,334/-. The additional quantum itself implies the additional amount of pension to be paid on basic pension as percentage. The revision of pension is always made by taking the basic pension only. Whereas in RPS-2014 the consolidation (fixation) of pension is 6 TMD,J W.P.No.24656 of 2020 done erroneously by taking Rs.25,562/- as basic pension, instead of taking basic pension of Rs.22,228/-. Accordingly, the basic pension in RPS-2014 was erroneously fixed as Rs.47,366/- instead of Rs.41,188/- In RPS-2018, the basic pension fixed in RPS-2014 i.e., Rs.47,366/- was taken as basic pension and there by the pension is fixed as Rs.77,488/- instead of Rs.67,382/- as basic pension."
6. It is also submitted that the medical problems faced by the petitioner cannot be a reason for not making the recovery of the excess pension paid to the petitioner. It is submitted that the respondents have evolved a good and robust medical policy to all its pensioners on par with regular employees such as cashless facility for treatment of self and family against credit card issued by the respondents and that the writ petitioner has already availed the benefit of the same for himself and also for his wife and therefore, the problems referred to by the petitioner are devoid of merits. In respect of recovery of amounts, the writ petitioner was given an option to pay 50% of the amount immediately and the balance in 12 monthly instalments, but since the petitioner failed to respond, 1/3rd of the pension was being recovered from his 7 TMD,J W.P.No.24656 of 2020 pension from November, 2019 onwards. The respondents therefore prayed for dismissal of the writ petition.
7. Learned Standing Counsel has also referred to various provisions of law and also the judgments of the Hon'ble Supreme Court including the judgment of Rafiq Masih (cited supra) and also in the case of High Court of Punjab & Haryana and Others Vs. Jagdev singh 2, wherein the Hon'ble Supreme Court has held that where officer to whom payment was made in first instance was clearly placed on notice at the time of payment itself that any payment made in excess would be required to be refunded and the officer furnished an undertaking to that effect while opting for the revised pay scale, he is bound by the undertaking and therefore, in such cases the rationale in the case of Rafiq Masih (cited supra) would not apply.
8. Having regard to the rival contentions and the material on record, this Court finds that the only issue to be considered in this case is whether recovery of the excess payment of pension to the petitioner, can be made in this 2 (2016) 14 SCC 267 8 TMD,J W.P.No.24656 of 2020 case and whether it is covered by the decision of the Hon'ble Supreme Court in the case of Rafiq Masih (cited supra). In the case of Jagdev Singh (cited supra) referred to by the learned standing counsel for the respondents, the Hon'ble Supreme Court has considered its earlier judgment in the case of Rafiq Masih (cited supra) and has held that principle enunciated in proposition (ii) i.e., recovery from retired employees, or employees who are due to retire within one year, of the order of recovery, cannot apply to a situation where an officer has given undertaking that if any excess payment was made, it would be required to be refunded, but in the present case, that is not the situation. As seen from the impugned notice dated 17.10.2019, the respondents sought to revise the consolidated pension as on 01.04.2014 and also the revised pension in RPS-2018. The date of fixing of the pension in accordance with RPS- 2014 is not available, but it appears to have been done w.e.f. 01.04.2014. Five years therefrom would be 31.03.2019, whereas the impugned notice has been given on 17.10.2019. Therefore, it is clearly after a period of five years and hence, in view of the judgment of the Hon'ble 9 TMD,J W.P.No.24656 of 2020 Apex Court in the case of Rafiq Masih (cited supra) the recovery cannot be made by the respondents. The further point to be noted is that the petitioner has died during the pendency of the petition and it is the legal heir i.e., the wife of the writ petitioner who is on record. The respondents have admitted that they have recovered the some of the amounts from the pension of the petitioner i.e., 1/3rd of the pension is being recovered from November, 2019 onwards. Therefore, the entire amount might have been recovered from the pension of the petitioner by now.
9. In view of the finding that the recovery is bad in law, the respondents are directed to refund the entire amount to the petitioner within a period of three (3) months from the date of receipt of a copy of this order and if it is not done so, then the amount shall be paid thereafter with interest @ 8% per annum from the date of three months till the date of payment.
10. Accordingly, this writ petition is disposed of. There shall be no order as to costs.
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11. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Dated: 30.04.2024 bak 11 TMD,J W.P.No.24656 of 2020 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI WRIT PETITION No.24656 of 2020 Dated: 30.04.2024 bak