Andhra Bank vs G. Ramakrishna Reddy And 2 Others
2021 Latest Caselaw 1649 Tel

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.

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

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

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

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