Bombay High Court
The Union Of India, New Delhi ... vs Manohar Bapurao Deshpande And ... on 23 September, 2021
Bench: S.B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1435 OF 2020
(UNION OF INDIA, MINISTRY OF EARTH SCIENCES & OTH...VS..MANOHAR BAPURAO DESHPANDE
(DEAD, THR. LRS.) & OTH.)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Ms Sushma, Advocate for Petitioners.
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATED : SEPTEMBER 23, 2021.
1. Heard Ms Sushma, learned counsel for the
petitioners.
2. The petitioners are displeased with the
judgment dated 25th June 2019 delivered by Central
Administrative Tribunal, Mumbai, Circuit Bench at
Nagpur, in Original Application No. 2120 of 2018.
3. The Original Application was moved by the
respondent No.1, a retired employee of the petitioner.
The respondent No.1 had retired in the year 1994 and his
pension was fixed in the year 1996. It was found later on
by the petitioners that the pension was wrongly fixed and
the mistake was on the higher side and therefore, the
petitioners, by order passed on 26/04/2018, directed
recovery of excess payment of pension made to the
respondent No.1.
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4. Being aggrieved by the same, the respondent
No.1 filed the Original Application, referred to earlier.
The application was decided in favour of the respondent
No.1 on the ground that after lapse of about 22 years
from the date of retirement, recovery of pension paid in
excess could not be made by the petitioners. It was also
found that if there was a mistake committed by the
officers/ officials of the petitioners in wrongly fixing the
pension, it was necessary for the petitioners to have fixed
the responsibility in the matter. Therefore, by the
judgment, impugned here, the Tribunal directed the
petitioners to not make any recovery of the past over
payment of the pension from the respondent No.1 and to
refund the amount recovered till the date of the
judgment. It also directed the petitioners to fix the
responsibility on those who had made the wrong revision
of the pension payable to the respondent No.1, within a
period of six months from the date of receipt of copy of
the judgment.
5. The learned counsel for the petitioners
submits that the respondent No.1 had submitted an
undertaking to the Bank where his pension account was
maintained, that in case there was any over payment of
pension amount to him he would refund the same and
this fact was suppressed by the respondent No.1 before
the Administrative Tribunal. She also submits that it was
the duty of the Bank as well, which was a party to the
proceedings before the Administrative Tribunal, to have
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brought on record the fact of submission of undertaking
by the respondent No.1. But, the Bank Authorities also
did not file copy of the undertaking on record of the
Original Application proceedings. According to her, if this
undertaking is considered, the law in State of Punjab and
others..vs..Rafiq Masih (White Washer) and others,
reported in (2015) 4 SCC 334 relied upon while passing
the impugned judgment would become inapplicable and
as per the undertaking given by the respondent No.1, the
respondent No.1 will be liable to refund the amount paid
in excess to him.
6. We are not inclined to accept such an
argument. The reason being that the undertaking that
was given by the respondent No.1 was admittedly
furnished to the Bank where the pension account of the
respondent No.1 was maintained and it was not given to
the petitioners. Therefore, the undertaking creates no
right in favour of the petitioners, which they could
enforce against the respondent No.1 in a case where
there was payment of excess pension amount to the
respondent No.1. Further, the undertaking having not
been given to the petitioners, the petitioners could not
have insisted upon the respondent No.1 to have disclosed
the fact of submission of an undertaking by him to the
Bank. The undertaking given by the respondent No.1
was admittedly to the Bank and therefore, if there was
any right to make recovery of excess payment of pension
to the respondent No.1, the right was available only to
the Bank. In the present case, the excess payment was
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not made by the Bank, but by the petitioners and the
petitioners having had no right to recover the excess
payment made, in terms of the undertaking given by the
respondent No.1 to respondent No.2 Bank, the
petitioners could not have made any attempt to recover
the amount by relying upon the undertaking.
7. Then, question would arose, as to whether or
not, de hors the undertaking the petitioners could have
recovered the amount of excess payment of pension to
the respondent No.1 and in our considered view, answer
has to be given in the negative and on the same lines as
answered by the Tribunal in the impugned judgment.
The Tribunal has found that the impugned order, dated
26/04/2018 was passed about 22 years after the date of
retirement of the respondent No.1 and passage of such a
long period of time has disentitled the petitioners from
making any effort to recover the excess amount of
pension paid to the respondent No.1. For this view, the
Tribunal has drawn support from the reasoning adopted
and the law laid down in the case of State of Punjab and
others..vs..Rafiq Masih (White Washer) and others
(supra). We find the view so taken by the Tribunal is
consistent with the facts of the case and the law
applicable to it and therefore, to this extent, the
impugned judgment cannot be found to be having any
fault in it.
8. As regards the challenge made to the second
part of the impugned judgment directing the petitioners
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to fix the responsibility of those who were responsible for
making wrong revision of pension payable to the
respondent No.1, we find that the logic that was pressed
into service for prohibiting the petitioners from making
any recovery of the excess payment made to the
respondent No.1 would also apply in equal force to the
issue of making of any enquiry and fixing of
responsibility on the concerned officers or officials who
had wrongly fixed/revised the pension of the respondent
No.1. If after a lapse of about 22 years from the
retirement no recovery of excess payment of pension
made to the respondent No.1 could be made, equally,
after lapse of such a long period of time no departmental
enquiry for fixing of responsibility on the concerned
officer/official can also be made. After such a long
passage of time, most of the employees have retired and
as a matter of fact, it is submitted by the learned counsel
for the petitioners that all the concerned officers have
already retired long back and therefore, it would neither
be permissible in law to proceed against such retired
employees nor practicable on account of difficulty in
gathering the requisite evidence.
9. In the result, we are of the view that the
prayer of the petitioners regarding interference with the
second part of the impugned judgment can be considered
even without issuing any notice to the respondent No.1
for the reason that this second part does not affect in any
manner the respondent No.1, rather the respondent No.1
is not at all concerned with the second part of the
impugned judgment.
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10. Accordingly, we partly allow this petition and
quash and set aside the impugned judgment to the extent
that it directs the petitioners to fix the responsibility on
those who had made the wrong revision of pension
payable to the respondent No.1.
The petition is disposed of accordingly. No
costs.
(ANIL S.KILOR,J) (SUNIL B. SHUKRE,J)
RRaut..
