Delhi High Court
Malti Singh vs Union Of India & Ors on 27 November, 2018
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1130/2017
MALTI SINGH ..... Petitioner
Through: Mr. Maninder Dubey, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Bhagwan Swarup Shukla, CGSC
with Mr. Kamaldeep and Mr. Shravan
Kumar Shukla, Advoactes for UOI.
CORAM:
JUSTICE S. MURALIDHAR
JUSTICE SANJEEV NARULA
ORDER
% 27.11.2018
Dr. S. Muralidhar, J.:
1. The Petitioner, who was nearly 72 years old at the time of filing of the
present writ petition, and is now 74 years old, is the widow of the late Mr.
Sitaram Singh who was employed as an Upper Divisional Clerk („UDC‟) in
the Border Roads Organization („BRO‟).
2. The Petitioner approached this Court, aggrieved by the action of the
Ministry of Personnel, Public Grievances & Pension, Government of India
in recovering from her savings bank account with the State Bank of India
(„SBI‟) a sum of Rs.1,68,990/- on 8th April 2016. She was intimated by letter
dated 20th May 2016 that it had been determined that a total sum of
Rs.7,09,862/- was to be recovered on account of alleged overpayment of
pension.
3. During the pendency of the petition, on 30th August 2017, an interim
order was passed by the Court to the effect that, until the next date of
hearing, the Respondents would not make any recovery on account of
arrears and that the correct pension payable to the Petitioner would be
credited to her bank account. On the next date of hearing, i.e. on
26th October 2017, learned counsel for SBI assured the Court that the earlier
order dated 30th August 2017 would be complied with.
4. Learned counsel for the Petitioner points out that despite her
representation dated 1st June 2016 to the General Manager of SBI for
reversal of the recovery, no action has been taken till date.
5. According to the Respondents, the Petitioner apparently was paid pension
at Rs.6,043/- per month instead of at Rs.3,500/- per month during the period
January 2006 and April 2016 on account of "wrongful migration/feeding of
data as regular pension instead of family". Further, it was stated that the date
of birth was wrongly filled as 18th November 1928, resulting in pension
enhancement during the period from November 2008 to April 2016.
6. It is an admitted fact that after detecting the alleged overpayment, the
Respondent Ministry on one fine day woke up and informed the Petitioner
by a letter dated 20th May 2016 about seeking to recover a total sum of
Rs.7,09,862/-. By this time, on 8th April 2016, without any notice to her, the
Respondent SBI had deducted a sum of Rs.1,68,990/- from her savings
account.
7. The question regarding the recovery of overpayment of pension is no
longer res integra. After discussing a litany of judgments on this issue, the
Supreme Court by its judgment in State of Punjab v. Rafiq Masih (2015) 4
SCC 334 held as under:
"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:
(i) Recovery from employees belonging to Class-III
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.
(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."
8. As far as the present case is concerned, the Petitioner‟s late husband was
in fact working in a Group C post with the BRO and, therefore, the case of
the Petitioner would be covered by the above decision which says that there
will be no recovery in case of excess pension payment made to a Group C
service employee.
9. Learned counsel for the Respondents submits that the above judgment
would apply only where the recovery was made from the employee himself
and not to the family of the employee. This argument requires to be rejected
for the simple reason that the hardship in such event that the Supreme Court
spoke of would be apply a fortiori in the case of the family member of an
expired employee belonging to the Group C or Group D services (Class 3
and Class 4). In the considered view of this Court, the judgment of the
Supreme Court in Rafiq Masih (supra) restrains the recovery of alleged
excess payment even from family of the expired Group C and Group D
employees.
10. This position becomes clearer from the fact that consequent upon the
above judgment, fresh instructions have been issued by an Office
Memorandum dated 2nd March 2016 by the Department of Personnel and
Training („DoPT‟) incorporating those very categories identified by the
Supreme Court in Rafiq Masih (supra) from whom recovery will not be
made and this includes employees belonging to Class 3 and Class 4 services
or Group C and D Services.
11. In that view of the matter, the impugned action of SBI in deducting
Rs.1,68,990/- from the Petitioner‟s account on 8th April 2016 I declared to be
illegal. The said sum is directed to be refunded to the Petitioner forthwith
and in any event not later than four weeks from today. If the refund is not
made within the period indicated, simple interest @ 9% per annum will be
payable to the Petitioner by the DoPT from the date on which it falls due,
i.e. 30th December 2018, until the actual date of payment. The letter dated
20th May 2016 issued by SBI in so far as it proposes recovery of
Rs.7,09,862/- from the Petitioner is hereby quashed. It is however clarified
that this Court is not interfering with the re-fixation/correction of the
Petitioner‟s pension which will be effective from the date of such re-
fixation/correction.
12. The writ petition is allowed in the above terms.
S. MURALIDHAR, J.
SANJEEV NARULA, J.
NOVEMBER 27, 2018
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