OA is filed for not considering revision of 1/3rd commuted pension and for ordering recovery from pension. CAT Hyd
CENTRAL ADMINISTRATIVE
TRIBUNAL
HYDERABAD BENCH
Original Application No.21/572/2015 Hyderabad, this
the 28 th day of January,2020
Hon’ble Mr.Ashish Kalia,Member (Judl.),Hon’ble
Mr.B.V.Sudhakar,Member (Admn.)
K.Simhadri Rao,S/o.K.Satyanarayana Rao, Aged about 85
years,Retd.Senior Private Secretary to Chief Postmaster General ,A.P.Circle,Hyderabad,
...Applicant
Vs.
1. Union of
India,Rep.by the Secretary, Ministry
of Personnel,PG& Pensions,
(Dept.of
Pensioners’ Welfare)
2. The Union of
India, Rep.by The Under
Secretary,Ministry of Finance,
(Department
of Expenditure),
3. The Chief
Postmaster General
Andhra Pradesh Circle ,Dak Sadan,
Hyderabad
-500 001.
4. The Director
of Accounts (POSTAL),
A.P. Circle
, O/o . The Chief Postmaster General,
A.P.
Circle, Dak Sadan, Hyderabad -500 001.
5. The Senior Postmaster (Disturbing Officer),
Head Post
Office, Secunderabad -500 003.
6. The Sub Postmaster
ORDER
As per B.V. SUDHAKAR, MEMBER (ADMN.)
2.
The OA is filed for not considering
revision of 1/3rd commuted pension and for ordering recovery from pension.
3. Application
joined the erstwhile P&T Deparment as clerk on 1.6.1948 in the pay scale of
Rs.60-170 and thereafter on rising to the cadre of Sr.PS in pay band 2 with
Grade Pay of Rs.4600,applicant joined Hindustan Cables Ltd,Hyderabad (HCL )in
1982 and then, after getting absorbed in the said organisation,retired from
Government Service w.e.f 31.12.1982 with additional facility of
permitting commutation of full pension as per judgment of the Hon’ble Supreme Court in 1996 (2) SCC 187 ON
15.12.1995.Applicant retired on superannuation on 312.12.1987, with no
pensionary benefits for the service in PSUs. On retirement from govt.SERVICE
w.e.f 31.12.1982, applicant was granted
full pension of Rs.578 under Rule 49 (2) (b) of CCS (Pension) Rules ,1972. A
sum of Rs.27,860 towards commuted value of his 1/3rd original
pension of Rs.193 and Rs.55,710 towards the balance 2/3rd pension of
Rs.385 was paid to him but not as
terminal benefits as clamed by govt, which was also not greed to by the HON’BLE
APEX Court on 15.12.1995. as per provisions existing , the commuted pension is
not liable to be restored, including the 2/3rd pension commuted
which was indicated in the absorption
order issued under rule 37 A (1) (b) for those joining public sector
organisation and getting absorbed. On 9.12.1986, the Common Cause judgment (1987
(1)SCC 142)Only central GOVT. Employees and not to public sector employees vide para 4 of om dated
5.3.1987 on the ground that they have been paid terminal benefits on commuting pension in full and therefore
they cease to be central govt. Pensioners. HON’BLE Supreme Court clarified that para 4 of the OM referred
to is not valid and that the restoration of 1/3rd pension also
applies to 2/3rd pension .Later when the Welfare Association of
Absorbed Central Govt Employees in Public
Enterprises agitated before the HON’BLE Supreme
Court, in WP (C) No. 11855/85, in 1993 govt. Was directed tos consider
the petitioners case in the light of the judgment delivered in common cause
judgment. This order of the HON’BLE
Supreme Court judgment was not
implemented by the Govt., Though some Organisations like Railways, Defence
permitted commutation of pension upto 55% of pension since HON’BLE APEX Court
has not laid down any limit in this regard. Realising its fallacy Govt.withdrew
the OM dtd. 31.3.1985. Applicant claims that he has been put to a loss of
Rs.1869/month under 6th CPC and Rs.2496 under 5th CPC.As
per Doctrine of expectation the applicant has been put to unintended loss. 1/3rd
pension restored did not include the revision benefits in full as per the 6th
CPC but only a part, there by denying payment of revision benefits at par with
other pensioners in violations of the directions of the HON’BLE APEX Court in
their orders dated 1.5.1998,29.11.2006 and orders of the Tribunal in OA
710/2010 dated 27.9.2011. This has led to ordering recovery of Rs.10,000/- from
the anything other than pension not falling under the definition of pension as
per Rule 3 (1) (o) of CCS (Pension) Rules,1972 should be paid in full
calculated on full pension.Discrimination has been shown in regard to PSU
pensioners,The overpayments were assumed to be as such due to wrong application
of OM dated 1.9.2008 which is not applicable to PSU pensioners.
4. The contentions of the applicant are that , he
being a PSU absorbed pensioner and his retirement has to be considered as
Retirement in public interest. Govt.cannot make a distinction between 1/3rd
and 2/3rd pensioner. HON’BLE APEX Court has
not fixed any limit in regard to percentage of pension to be commuted. The
order of the HON’BLE Supreme Court field by the Association of absorbed
PSU Pensioners has not been implemented.Without a Presidential order there can
be no reduction in pension which is issued only in cases of proven
misconduct.Rules 8,9 of CCS (Pension) Rules 1972 and Rule 10 A OF Commutation
of pension rules have been disregarded. The Armed Forces Tribunal,Kochi has
allowed restoration pension in full in OA 34/2011 based on common cause
judgment, The action of the Govt.is not in tune with the doctrine of
expectation. The recovery from pension is mounting witjh revision of pension
ordered by the successive Central Pay Commissions. Judgment of the HON’BLE Supreme
Court in Rafiq Masih case applies to his case sqarely in regard to
recovery of pension. The parity judgment dated 1.5.1998 has not been
applied.Pension should not be reduced for extraneous reasons.There is hostile
discrimination in respect of PSU absorbee pensioners. Applicant has cited Order
of the HON’BLE Chandigarh Bench of this Tribunal in OA No. 60/434/2019 in
support of the contentions made.
5. Respondents confirm in their reply statement that
the applicant on this retirement on 31.12.1982 was paid an amount of
Rs.83,578/- on 17.10.1983 towards 1/3rd commutation of pension of
value rs.193 and terminal benefits based on 2/3rd pension
of Rs.385. After 15 years notional pension of Rs.1240 was fixed after
restoring the 1/3rd pension commuted as per Rule 10 of CCS
(Commutation of Pension) Rules 1981 in accordance with the orders of the HON’BLE High Court of AP. In WP No. 8532/2013 dt. 24.12.2003
and HON’BLE Supreme Court dt. 24.7.2007 in review Petition No.
643/2007. Applicant is, therefore not eligible for full pension.Consequent to
implementation of 6th CPC recommendations vide memo dated 15.9.2008,
1/3rd part of the pension as on 31.12.2005 was taken as Rs.2918
instead of Rs.1248 and thre rersztored part payable was arrived as on 1.1.2006
as Rs.7636 instead of Rs.5969. payment of pension @ Rs.7636 was continued till
31.7.2013. after receiving the authorised pension from the 4th
respondent , the error was recrified and pension paid at admissible rate from
1.8.2013. The excess paid amount from 1.1.2006 to 31.7.2013 to the extent of
RS.64,193 had to be recovered has been stayed by the Tribunal. The Applicant
field a rejoinder and written arguments which we have gone through in detail.
Respondents number 1 and 2 have not field the reply ,
as is seen from the records on file, though the OA was filed in April 2015.
First respondent is the nodal ministry in dealing with pensions and the second
one is also crotical in taking a view in respect of the expenditure aspect of
the issue.It is surprising that both the respondents choose not to respond,
albeit more than 4 years have lapsed.The applicant is around 90 years old and
hence the OA was heard inthe interst of justice.
6. Heard both the counsel and perused the pleadings on
record.
7. I) The
dispute is in regard to restoring full pension of the pensioner who worked for
posts & Telegraphs Department and and therafter retired on 31.12.1987 from a PSU on being absorbed as
per as rules in the subject. As per the commom cause judgment of the HON’BLE Supreme Court, pension is to be restored after 15
years. The pensioners being a public sector employee has commuted full pension
which was permitted hitherto.After the rendering of the common cause
judgment,only 1/3rd of this pension has been restored and the claim
of the applicant to restore the remaining 2/3rd pension,was not
considered by the respondents.
II) HON’BLE
High Court of Madras on Writ petition 22207 of 2002 dated 2.8.2007 has
considered a similar issue and held as under:
13. ‘’UnderSection
10 as stated by as earlier , while commutation of pension for Government to once and for all wipe of the
very right to restoration of such pension after the expiry of the period of
commutation.In FACT , rule 37-A clause (b) though uses the expression the
communation of balance amount of pension nmely the 2/3rd of pnsion,the
stipulation contained therein providing for such commutation of 2/3rd
pension would be subject to surrendering of the right of Government servant,
for drawing the 2/3rd pension would run counter to the very concept
of commutation which will not be in consonance with section 10 providing for
commutation of pension alone and not the right to claim pension after the
period of commutation.
14. That apart
,even if the petitioner was obliged to surrender such a right for the drawal of
2/3rd of his pension by agreeing for the terms contained in Rule
37-A Of pension Rules in as much as such a wholesale surrender of the right to
pensions as contained in the said Rule conflicts Section 12 of the Pensions
Act,it will have to be held that the Rules providing for such surrendering of
right in opposition to Section 12 of the act cannot be permitted to
operate.When under Section 12 of the Act,there is a prohibition imposed on the
pensioner himself to barter away his rigfht under very many circumstances
expect as provided under Section 12 –A of the pensions act,we are convinced
that surrendering of the right for drawal of 2/3rd of pension after
its commutation as provided under rule 37-A (b) is repugnant to Section 12 .Consequently
any action based on rules 37-A (b) is wholly illegal and there fore the
surrendering of rights of the petitioner for drawing 2/3rd of
this pension at the time of its
commutation to that extent can not operate against his interest.We therefore
declare that such surrendering rights by the petitioner at the time of his
absorption in the year 1986 while commuting 2/3rd of his pension,
was invalid ans consequently the petitioner was lawfully entitled for the
restoration of his pension after the expiry oof the period of commutation of
2/3rd pension,’’
Hon’ble Supreme Court has dismissed the CA No.6048 og
2010 field by the Govt.of India against the judgment of the Hon’ble Madras High
Court cited supra.Consequently,OMdt.23.6.2017 was issued by G.O.I. Paras 7,8
& 9,which deal with issue are extracted as under:
‘7. Review
petitions No.465/2017 were filed by Union of India in the Supreme court against
the aforesaid order dated 1,9.20156. Instructions were separately issued to the
office of controller general of accounts and the ministry of civil Aviation
vide OM No. 4/34/2002-P&PW (D).VOL. dated
21.12.2016 and OM No.4/34/2002-P&PW (D).VOL. dated 21.12.2016 respectively,for
implementation of the orders of Hon’ble Supreme Court in respect of the
petitioner /respondent pensioners in the aforesaid review petitions No.
465/2017 and No. 472/2017 have been dismissed by Hon’ble Supreme Court on
22.03.2017.
8. The matter
has been examined in consulatation with the department of Legal Affairs and the
Ministry of Finance (Department of Expenditure).It has allowed restoration of
full pension after expiry of communatation period of 15 years from the date of
payment of 100% lump-sum amount.
9. The absorbee
pensioners whose full pension is restored in terms of the above instructions
would also be entitled to revision of their pension in accordance with the
instructions issued from time in implementation of the recommendations of the
pay commissions, including the 7th Central Pay COMMISSION.’’
III) Further
in regard to recovery to commuted value of pension,paras 3 (1) and 4 of the
common cause judgment read as under:
‘’3(i) Recovery from pension payable every month towards
commuted value of pension will stopon the completion of 15 years from the date
of retirement on superannuation or on
the pensioner completing 70 years , whichever is lter.
4. As the
position now stands, when a pensioner commutes any part of his pension up to
the authorised limit,his pension is reduced for the remaining part of this life
by deducting the commuted portion from the monthly pension.’’
IV) Besides ,
in regard to recovery , the case of the applicant is fully covered by the
judgment of the Hon’ble Supreme Court in State of Punjab &Ors vs Rafiq
Masih (White Washer) dated 18 December, 2014, in Civil Appeal No. 11527 of 2014
(Arising out of SLP (C) No.11684 of 2012),wherein it has been held that there
shall not be any recovery from the pensioners due to any excess payments made
by the pensioners in the following situations:
‘’12. Its 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 refrence ,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 excees of five years,before the order of recovery is
issued.
(iv)
Recovery in cases where an employee has wrongly 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 inferio post.
(v)
In any other case, where the court arrives at the
conclusion,that The case of the applicant is fully covered by the above cited
judgments.Hence,any recovery made,be refunded and no further recovery be made
from the pension of the applicant on grouds of wrong calculation done by the
respondents as explained in the reply statement.
V) In regard
to Commutation of Pension, legl principal laid down by the Hon’ble Madras High
Court makes it clear that full pension has to be restored and on dismissal of
the CA No.6048 of 2010 field against the judgment, the matter has attained
finality . In compliance with the said judgement even OM dated 23.6.2017 was
issued. Recently,Hon’ble Chandigarh Bench of this Tribunal has also dealt with a
similar in OA No. 060/0434/2019 and delivered a verdict in favour of the
applicant. Therefore , the working details of the applicant and the revision of
pension along with revision benefits that accured during the commutation perod
, arrears of pension in accordance with the recommendations of the successive
pay commissions have to be examined in detail in accordance with legal
principles laid down by the superior judicial forums referred to in paras supra,on
the issue and therafter the relief sought by the applicant has to besettled.As
sought by the applicant ,specific details need to be provided.In view of the
aforesaid circumstances,the respondents are directed to examine the relief
sought by the applicant and issue a speaking andreasoned order accompanied by
the relevant working sheets responding to the elaborate averments made,by
extending eligible reliefs based on prevailing rules and in accordance with
law.Respondents may also keep in mid para 5 of the judgment of the Hon’ble
Supreme Court in Union of India.
VI) Time allowed to implement the orders is 6 months
from the date of receipt of a copy of this order.With the above direction,the
OA is disposed of. No orders as to costs.
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