armed forces tribunal, chandigarh regional bench at chandimandir

ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL
BENCH AT CHANDIMANDIR
-.OA 333 of 2013
Ram Kumar
Vs
Union of India & others
For the Petitioner (s)
:
For the Respondent(s) :
……
Petitioner(s)
……
-.-
Respondent(s)
Mr. Sultan Singh, Advocate
Ms. Renu Bala Sharma, CGC.
Coram: Justice Vinod Kumar Ahuja, Judicial Member.
Air Marshal (Retd) Naresh Verma, Administrative Member.
-.ORDER
25.04.2014
-.-
This petition has been filed by the petitioner Ex. Hav Ram
Kumar (mentioned as Ex. Hav Ram Kanwar in Written Statement and Ex.
Hav Ram Kunwar in the replication) for seeking direction to the respondents
to revise the pension of the petitioner @ Rs. 5361/- per month w.e.f. 01-072009 as per Table 24 with a further direction to stop the recovery of the
overpaid amount of Rs. 19,672/-and to refund the amount already recovered
from his pension with interest @ 18% per annum.
Briefly stated that the facts of the case are that the petitioner
was enrolled in the Regiment of Artillery on 15-08-1955 and after having
served the Army for 18 years and 266 days he was transferred to Pension
Establishment on 11-05-1974. When he was discharged from service he was
holding the rank of Hav Gnr. (GD), a Group „D‟ post, and pension was
granted to him in that rank. Firstly, his pension was revised and fixed @ Rs.
1697/- per month w.e.f. 01-01-1996 as per column 2 of Table 24 (Annexure
A-8). Pursuant to the recommendations of 6th Pay Commission Report, his
pension was again revised and fixed at Rs. 3995/- as consolidated pension
-2w.e.f. 01-01-2006 according to column 9 of Table 24 given in Annexure A8. His pension was third time revised @ Rs. 5361/- per month w.e.f. 01-072009 under column 10 of Table 24 (Annexure A-8). He had been drawing
pension at this rate till 30th April 2012. Thereafter, his pension was suddenly
reduced to Rs. 4964/- per month by the DPDO, Rewari, who started
effecting recovery @ Rs. 2000/- per month w.e.f. 01-05-2012 from his
pension in order to recover the over-payment of Rs. 19672/- paid to him.
On inquiry, it was told by the DPDO that his pension @ Rs. 5361/- per
month was inadvertently fixed w.e.f. 01-07-2009 although he was entitled to
pension @ Rs. 4964/- per month from that date. He served a legal notice
dated 19-2-2012 (Annexure A-7) on the DPDO, Rewari, requesting him to
stop the recovery and the recovered amount be refunded to him with
interest,. In response to this notice, it was intimated by the DPDO, Rewari,
vide its letter dated 14-12-2012 (Annexure A-5) that his pension was
erroneously revised to Rs 5361/- w..e.f. 01-07-2009 and it was paid at this
rate till April 2012. Since as per the PCDA (P), Allahabad PPO No.
S/9784/1974, his rank was Havildar Group „G‟, his pension has been
revised reducing it to Rs. 4964/- from Rs. 5361/- w.e.f. 01-07-2009 for
qualifying service of 18.5 years according to table No. 25 of the PCDA (P),
Allahabad Circular No. 430 dated 10-03-2010. Therefore, the over-payment
of Rs. 19672/- is being recovered @ Rs. 2000/- per month from him. Being
aggrieved, he filed the present petition.
On notice having been issued, reply has been filed on behalf of
the respondents in which one of the plea raised by the respondents is that his
pension was erroneously fixed at Rs. 5361/- w.e.f. 01-07-2009 and the same
-3was not admissible to him as his group was wrongly mentioned as Havildar
Group –„E‟ whereas it should be Havildar Group –„G. This fact has been
clarified by the Artillery Record vide its letter dated 21 st November 2012
(Annexure A-6) addressed to the PCDA (P) Allahabad while referring to
the legal notice dated 6th November, 2012 served by the Petitioner. In this
communication, it was stated that on scrutiny of Corrigendum PPO No.
S/R/11235/75 dated 10th April 1975, it had been observed that Group of the
petitioner had wrongly been mentioned as Hav Group „E‟, whereas, it should
be Hav Group „D‟. It was further stated that the petitioner was enrolled in
the Regiment of Artillery on 18-08-1955 and discharged with effect from
11-05-1974 after completion of 18 years and 266 days service in the trade of
Gnr (GD). As per Army Instruction 3/S/74 the PBORs, who were discharged
prior to 01.01.1973 and served as Gnr GD of Group „G‟ have been regrouped in Group „D‟ and those in Group G (excluding Gnr GD) and Group
H to new Group „E. In the light of this observation, the PCDA (P) was
asked to forward an amended corrigendum PPO to the Artillery Record for
onward submission to the petitioner‟s Paying Branch i.e. DPDO Rewari.
The DPDO, Rewari, vide his letter dated 14-12-2012 (Annexure A-5)
intimated to the petitioner‟s counsel namely Shri Sultan Singh, Advocate, in
response to aforesaid legal notice dated 6-11-2012 that the pension of the
petitioner was wrongly fixed at Rs. 5361/- w.e.f. 01-07-2009 and he was
paid excess amount at this rate till 30th April 2012. As per PCDA (P),
Allahabad PPO No. S/9784/1974 his rank was Havildar Group „G‟, his
pension has been revised and fixed at Rs. 4964/- reducing it from Rs.
5361/- w.e.f. 01-07-2009 for qualifying service 18.5 years according to
-4Table 25 of the PCDA (P) Allahabad Circular No. 430 dated 10-03-2010.
Since the over-payment of Rs. 19672/- was paid to the petitioner w.e.f. 0107-2009 till April 2012, it is being recovered @ Rs. 2,000/- per month.
With regard to the reply filed by the respondents, we find that
the Tables given in para 2 of the written statement are totally irrelevant and
not pertinent to the assertions made in the present petition, which has no
connection and relation with re-fixation of pay and grant of pension
w.e.f.01-01-1996. Elsewhere in paras 4 and 5 also the information provided
has no relevance and pertinence to the assertions made in the petition.
The learned counsel for the respondents while admitting the
fact that no show cause notice was issued to the petitioner before reducing
his pension and consequent effecting recovery, argued that the petitioner‟s
pension was initially revised at Rs. 5361/- per month erroneously and
pension at this rate was paid to him from 01-07-2009 till 30th April 2012.
Since as per the PCDA (P), Allahabad, PPO No. S/9784/1974 the petitioner
rank was Havildar Group –„G, his pension was revised and fixed at Rs.
4964/- per month according to his entitlement for qualifying service of 18.5
years according to Table No. 25 of the PCDA (P) Circular letter No. 430
dated 10-03-2010. He further contended that the Army Authorities are
within their right and competence to rectify the mistake and recover the
excess amount paid to the petitioner due to wrong fixation of pension and
this action of the Army Authorities cannot be declared to be wrong and
illegal.
We have heard the learned counsel for the parties and perused
the documents placed on record by the respective parties.
-5First we consider the aspect of fixation of pension of the
petitioner. There is no dispute that the petitioner was enrolled on 15-08-1955
and was discharged on 11-05-1974. His rank at the time of discharge was
Havaldar GNR (GD). His pension was revised as follows.
Sr. No.
Date of Revision
Amount
(i)
01-01-1996
Rs. 1697/ PM
(ii)
01-01-2006
Rs. 3995/-PM
(iii)
01-07-2009
Rs. 5361/-PM
(iv)
01-05-2012
Rs. 4964/- PM
The
Artillery
Records
letter
No.
1142698/SR/6th
CPC/Rev/R113/Pen-4 (AXT-A) dated 21 Nov 2012 (Annexure A-6) sent to
the office of the PCDA (P) vide para 2 clarifies that “on scrutiny of
Corrigendum Pension Payment Order (PPO) No. S/R/11235/75 dated 10
April 1975 in respect of above named ESM, it has been observed that Group
has wrongly been mentioned as Hav Group „E‟ whereas it should be Hav Gp
„D‟. Vide Para 4 ibid PCDA (P) has been requested to rectify the above
mentioned observation and forward a amended Corrigendum PPO to this
office for onward submission to his paying branch at the earliest.” However,
vide para 3 of the letter ibid we notice that as per AI 3/S/74 the PBOR who
were discharged prior to 01-01-1973 and served as GNR AD of Group „G‟
have been regrouped in Group –„D‟, whereas the petitioner was discharged
on 11-05-1974 i.e. after 01-01-1973 and hence regrouping of GNR GD of
Group – „D‟ is not applicable in his case. Table 24 at Annexure A-8
tabulates the revised pension w.e.f. 01-07-2009 in respect of pre- 01-012006discharged PBOR- Army. The categories covered by this table are as
follows:-
-6(i)
Havildar Gp „D‟ (Pre-73), F (Pre-73) and Gunar GD
(Pre-73) discharged Prior to 01-01-1996.
(ii)
Havildar GP - „D‟ discharged between 01-01-1996 and
09-10-1997.
Table 25 at Annexure A-9 tabulates the revised pension with
effect from 01-07-2009 in respect of Pre 01-01-2006 discharged PBOR nArmy of the following categories:(i)
GP-„E‟ (Post 73), „G‟ (Pre -73) and „H‟ (Pre-73)
discharged prior to 01-01-1996
(ii)
GP -„E‟ discharged between 01-01-1996 and 09-10-1997
(iii)
GP- „Z‟ discharged between 10-10-1997 and 31-12-2005.
Annexure A-3 is a copy of his discharge book reflects his
category as Gnr GD and he is squarely covered by the categories mentioned
in Table 24 which clearly indicates the revised pension for length of service
of 18.5 years applicable to him as Rs. 5361/We now consider the issue of recovery of the
so-called
overpaid amount from the petitioner.
During the course of hearing, it was strongly argued by the
learned counsel for the petitioner that the action of the authority in reducing
his pension from 5361/- to Rs. 4964/ per month w.e.f. 1-07-2009 and
consequent recovery of Rs. 19672/- effected from his pension is illegal and
violative of the principles of natural justice as no show cause notice was
issued which was mandatory and no opportunity of being heard was afforded
to him. It was further contended that initially the pension of the petitioner
was fixed at Rs. 5361/- per month w.e.f. 01-07-2009 by the authority of the
Government of India itself for which there was no misrepresentation on his
-7-
part nor he committed any fraud. Since the petitioner is not liable and
responsible for the wrong fixation of pension, the respondents are not
entitled to recover the over-payment of Rs. 19,672/- from him. In support of
his contentions, he placed reliance on the following two decisions of the
Hon‟ble Supreme Court:(i)
Sahib Ram Vs. State of Haryana, (S.C) 1994 (5)
SLR 753
(ii)
Bhagwan Shukla Vs. Union of India & others, 1994(4)
SLR 614.
Apart from these two decisions of the Apex Court, reliance was also placed
by the learned counsel for the petitioner on two judgments of this Bench,
one dated 12-05-2010 passed in OA No. 120 of 2010 titled as Mangi Ram
Vs Union of and others, and another dated 26-04-2011 passed in TA No.
345 of 2010 (arising out of CS No. 331 of 2009) titled as Fateh Singh Vs
Union of India & others.
We have given our thoughtful consideration to the submissions
of the learned counsel for the parties and have-gone through the judgments
cited by the learned counsel for the petitioner referred to above.
From the perusal of the decision of the Apex Court in Sahib
Ram’s case (supra), we find that the appellant in that case was appointed in
July 1972 as a Librarian in Govt. College in the pay scale of Rs. 220-550/This pay-scale was subsequently upgraded to Rs. 700-1600 w.e.f. 1-01-1973
It was applicable only in the case of those Librarians, who possessed a
minimum educational qualifications of first or second class M.A, M.Sc, M.
Com. plus a first or second class B. Lib Science or a Diploma in Library
Science. Subsequently Govt. relaxed qualifications as regards obtaining first
-8-
class or second class in the prescribed educational qualifications, but in the
educational qualifications. In that case, the Principal of the College where
the appellant was working, by misinterpreting the instructions relaxed the
educational qualifications in his case and allowed him the benefit of higher
pay-scale though he was not entitled to that scale as he did not fulfil the
required educational qualifications. Subsequently, on the direction of the
Haryana Govt. the higher pay-scale given to the appellant was withdrawn by
the Principal. The appellant then challenged the order of withdrawal of
higher pay-scale in the Punjab and Haryana High Court by way of CWP No.
10988 of 1993 which was dismissed by the Hon‟ble Court vide its order
dated September, 9, 1993. However, the appeal preferred against that
Judgment was partly allowed by the Apex Court vide order 19-09-1994.
While rejecting his claim for relaxation of educational qualifications in para
5 of the judgment, it was held by the Apex Court as under:“Admittedly, the appellant does not possess the
required educational qualifications. Under the
circumstances, the appellant would not be entitled
to the relaxation. The Principal erred in granting
him the relaxation. Since the date of relaxation, the
appellant had been paid his salary on revised
scale, however, it is not on account of any
misrepresentation made by the appellant that the
benefit of higher pay-scale was given to him, but
by wrong construction made by the Principal for
which the appellant cannot be held to be at fault.
Under the circumstances, the amount paid till date
may not be recovered from the appellant.”
In the aforesaid case, it was clearly held by the Supreme Court
that while granting higher pay-scale to the appellant, the Principal erred in
doing so. The higher-pay-scale was not given to the appellant on account of
-9-
any misrepresentation made by the appellant as such the appellant cannot be
held at fault. Though in that case the appellant was not held entitled to
relaxation as he did not possess the required educational qualifications, but
he was not held liable for recovery of the amount given as salary in revised
higher pay-scale.
In Bhagwan Shukla’ case (supra) the appellant was an
employee of the Railways. Initially, his basic pay was fixed at Rs. 190/- per
month in December 1970 in a running pay scale. Subsequently, by an order
dated 25-07-1991, his pay-scale was sought to be re-fixed. While re-fixing
his pay-scale, the appellant pay was reduced to Rs. 181/- per month from Rs.
190/- from 18-12-1970. In that case, the appellant questioned the legality of
order reducing his pay with retrospective effect before the Central
Administrative Tribunal, Patna Bench by way application which was
dismissed on 17-09-1993, but the appeal filed against that order was allowed
by the Apex Court vide its order dated 05-8-1994. While allowing the
appeal, it was held by the Apex Court that the appellant was not granted any
opportunity to show cause against the reduction of his basic pay and the
impugned order came to be made behind his back without following any
procedure known to law. Therefore, in that case, the order of the Railway
Department dated 25-07-1991 was held to be in flagrant violation of the
principles of natural justice and while setting aside the order of the
Administrative Tribunal, it was observed by the Apex Court that fair play
in action warrants that no such order making an employee to suffer civil
consequences and huge financial loss can be passed against an employee
without being heard.
-10-
In the case of Mangi Ram (supra) the controversy before this
Tribunal was that thought the petitioner was entitled to pension of Group –
„E‟ but he was wrongly granted pension in Group –„G‟. In that case, the
petitioner sought for a direction for the refund of the amount of Rs. 18,215/recovered by DPDO from him along with interest due to wrong fixation of
his pension in Group „G‟. While allowing the petition partly, the entitlement
of the petitioner‟s pension in Group –„E‟ was upheld. However, the
respondents were directed to refund back the amount of Rs. 18.215/recovered by the DPDO.
Similarly, in Fateh Singh’s case (supra), the controversy
before this Tribunal was also with regard to recovery of excess pension paid
to the petitioner. In that case, the petitioner on having discharged as Sepoy
after serving the Army for more than 28 years was granted service pension
w.e.f. 01-01-1981 which was revised from time to time. In December 2006,
the DPDO, Bhiwani , initiated proceedings for recovery of Rs. 1450/- per
month for the excess amount of Rs. 83,447/- on the ground that though he
was discharged as a Sepoy, but erroneously he was paid the pension of
Havaldar from 01-01-1996 till the error was discovered in 2006. While
disposing of the petition, it was directed that the excess payment made to the
appellant cannot be recovered and the respondents were further directed to
discontinue the recovery and refund the amount already recovered from him.
This view was taken by the Tribunal having regard to the decision of the
Hon‟ble Supreme Court dated 10-10-2006 rendered in Col BJ Akkara Vs
Union of India, wherein it was held by the apex court as under:-
-11-
“the recovery of excess wrong payment could not
be affected if the excess payment not made on
account of any misrepresentation or fraud on part
of the employee and such excess payment was
made by the employer by applying a wrong
principle for calculating the pay/allowance or on
the basis of a particular interpretation of
rule/order which is subsequently found to be
erroneous.
Similar matter came up for consideration before this Bench in
OA 424 of 2011 (Ex. Sepoy Pritam Chand Vs Union of India & others),
decided on 31-03-2013. In that case, the petitioner‟s disability was found
less than 20% by the Re-survey Medical Board in 1990. Though his
disability pension was stopped w.e.f. 07-10-1990, but he was wrongly paid
the service element till 28-02-2008. While allowing the petition partly, it
was held that the respondents are not entitled to recover the amount wrongly
paid by them on account of service element during the period 07-10-19990
to 28-02-2008 from the petitioner irrespective of the fact it was paid
erroneously or otherwise to the petitioner. Obviously, this view was taken
by this Bench in view of the decision of the Full Bench of Punjab and
Haryana High Court dated 22-05-2009 rendered in CWP No. 2799 of 2008
(Budh Ram Vs. State of Haryana). In its judgment, the Hon‟ble High
Court discussed various decisions of the Hon‟ble Supreme Court as well as
the different High Courts and ultimately held as follows:“It is in the light of the pronouncement, no longer
open to the authorities granting the benefits, no
matter erroneously, to contend that even when the
employee concerned was not a fault and was not in
any way responsible for the mistake committed by
the authorities, they are entitled to recover the
benefit that has been received by the employee on
the basis of any such erroneous grant. We say so
-12-
primarily because if the employee is not
responsible for the erroneous grant of benefit to
him/her, it would induce in him the belief that the
same was indeed due and payable. Acting on that
belief the employee would, as any other person
placed in his position, arrange his affairs
accordingly which he may not have done if he had
known that the benefit being granted to him is
likely to be withdrawn at any subsequent point of
time on what may be then said to be the correct
interpretation and application of rules. Having
induced that belief in the employee and made him
change in his position and arrange his affairs in a
manner that he would not otherwise have done, it
would be unfair, in equitable and harsh for the
Government to direct recovery of the excess
amount simply because on a true and correct
interpretation of the rules, such a benefit was not
due. It does not require much imagination to say
that additional monetary benefit going to an
employee may not always result in accumulation of
his resources and savings. Such a benefit may
often be utilized on smaller luxuries of life which
the employee and his family may not have been
able to afford had the benefit not been extended to
him. The employees can well argue that if it was
known to them that the additional benefit is only
temporary and would be recovered back from
them, they would not have committed themselves to
any additional expenditure in their daily affairs
and would have cut their coat according to their
cloth. We have, therefore, no hesitation in holding
that in case the employees, who are recipient of the
benefits extended to them on an erroneous
interpretation or application any rule, regulation,
circular and instructions have not in any way
contributed to such erroneous interpretation nor
have they committed any fraud, misrepresentation,
deception to obtain the grant of such benefit, the
benefit so extended may be stopped for the future,
but the amount already paid to the employees
cannot be recovered from them.”
In our view, so far as the aspect of recovery is concerned, the
law, as laid down in the aforesaid decisions of the Apex Court as well as the
High Court, is very clear. In the present case, initially the pension of the
petitioner was revised and fixed by the Authorities of the Army itself at
-13-
Rs. 5361/- per month and it was not on account of any misrepresentation on
his part and for this wrong fixation by the authorities of the Army, the
petitioner cannot be held at fault and responsible. In this case, no show
cause notice was issued to the petitioner affording any opportunity of being
heard before reducing his pension to Rs. 4964/- from Rs. 5361/- and
consequent effecting recovery of excess amount of Rs. 19,672/- from his
pension. Hence for their action being violative of principles of natural
justice, they cannot be held entitled to recover the over-payment made to
the petitioner from him.
Hence, in the light of the foregoing discussion, the present
petition is allowed. The respondents are directed to revise the pension of the
petitioner @ Rs. 5361/- per month w.e.f 01-07-2009 and refund the amount
of Rs. 19,672/- recovered from him as overpayment, within three months
from the receipt of a certified copy of this order, failing which they shall be
liable to pay an interest @ 10% per annum till actual payment. No order as
to costs.
(Justice Vinod Kumar Ahuja)
(Air Marshal (Retd) Naresh Verma)
25 .04.2014
„dls‟
Whether the judgment for reference to be put on Internet – Yes/No
Date of enrolment
15-08-1955
Date of Discharge
11-05-1974
Total Service
18 years 8 months 260 days
Rank on discharge
Havaldar Gnr. (GD)
Date of grant of pension
11-05-1974
Pension revised w.e.f. 01-01-1996
as Rs. 1697-00 PM
Pension revised w.e.f. 01-01-2006 as Rs. 3995-00 PM
Pension revised w.e.f. 01-07- 2009 as Rs. 5361-00 PM
Downward revision carried out on 01-05-2012 and Pension reduced to Rs.
4964/- per month
As per ASI 3/5/74 PBOR discharged prior to 01-01-73 and served as GNR
GD of Gp „G‟ have been regrouped in Gp „O‟
Confusion due to date 1.1.73 mentioned in Artillery Records letter at
Annexure A-3 Page 23
Annexure -8 clearly mentions revised pension at Rs. 5361/- from 01-072009.
Note: Written statement -- totally erroneous as it mentions about pay and
allowances
Other factual errors like date of retirement as 1996
Name mentioned in petition is wrong – it should be Ram Kunwar
and not Ram Kumar.
*********
(Justice Vinod Kumar Ahuja)
(Air Marshal (Retd) Naresh Verma)
.03.2014
„dls‟

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