Partly allowed

O.Padmanabhan Nambiar v. Chief Manager

Kerala HC6 Sept 2018WP(C)/8787/2013

Case brief

AI extract

What is this about?

The Court quashed the order directing deduction of excess pension from the deceased petitioner's pension due to clerical errors. It held that while the mistake can be rectified, recovery from the family pension of the legal heir is barred except for the difference between the error-calculated excess and the statutory minimum family pension.

What did the court decide?

Respondents allowed to revise pension based on actual qualifying service; recovery from family pension restricted to the difference between erroneous rate and minimum family pension.

O.Padmanabhan Nambiar Vs Chief Manager — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940

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WP(C).No. 8787 of 2013-W

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PETITIONER/S:

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1 O.PADMANABHAN NAMBIAR AGED 82 YEARS S/O. LATE NARAYANA KURUP, A-11, DHARMAPURI COLONY, THOTTADA.P.O., KANNUR DISTRICT670007.

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** ADDL.R2T.V.NARAYANI AMMA, W/O. LATE O.PADMANABHAN NAMBIAR, AGED 82 YEARS, S/O.LATE NARAYANA KURUP, A-11, DHARMAPURI COLONY, THOTTADA.P.O., KANNUR DISTRICT-670007.**

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(IS IMPLEADED AS ADDL. 2ND RESPONDENT AS PER ORDER DATED 06.09.2018 IN IA NO.5591/15)

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BY ADV. SRI.K.M.ABDUL MAJEED

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RESPONDENT/S:

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1 CHIEF MANAGER STATE BANK OF INDIA, GANAPATHIKOVIL ROAD, VAZHUTHAKKAD.P.O., THIRUVANANTHAPURAM-695014.

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2 THE CHIF MANAGER STATE BANK OF INDIA, MAIN BRANCH, FORT ROAD, KANNUR-670002.

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3 THE RECORD OFFICER CMP CENTRE & SCHOOL, C/O. 56 APO, BANGALORE900493.

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BY ADVS. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SRI.K.K.CHANDRAN PILLAI (SR.) SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL SRI.P.PARAMESWARAN NAIRASG OF INDIA SRI.THOMAS JAMES MUNDACKAL SRI.TPM.IBRAHIM KHAN (SR.)

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OTHER PRESENT:

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ASGI,SRI.N.NAGARESH, SRI.THOMAS JAMES MUNDACKAL (SC)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.V.ASHA J.

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-----------------------W.P.(C).No.8787 of 2013

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Dated this the 6^th day of September, 2018

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This writ petition was filed challenging the proceedings for recovery from pension, when the 1^st respondent Bank started reduction of monthly pension on the ground that excess payment was made by the Bank.

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2. The original petitioner Sri.O.Padmanabhan Nambiar, was drawing pension through the 1^st respondent Bank. He died during the pendency of the writ petition. His wife, who is drawing family pension through the 1^st respondent Bank, is impleaded as the additional Petitioner.

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3. The deceased petitioner was invalided from Army on 07.11.1958, after rendering service for a period of 7 years and 21 days and he was drawing pension through 1^st respondent Bank. The case of the petitioner was that he was granted minimum pension as well as disability pension and a sum of Rs.4,445/along with D.A was being paid to him with periodical increase. Monthly pension was being credited by the 1^st respondent Bank in his account No.10643264673. As per Ext.P1 letter 1^st

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respondent informed the deceased petitioner that monthly pension was being credited in his account at the rate of Rs.6247/- since July, 2009, whereas the basic pension admissible to him was Rs.3500/- only. It was stated that a sum of Rs.2,06,902/- was paid to him in excess for the period from July 2009 to February 2013. Petitioner approached this Court at that time against the reduction which was being effected from his pension and this Court as per order dated 27.03.2013 stayed the reduction and recovery from pension.

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4. According to the petitioner, he was not responsible for any excess payment and there cannot be any reduction from the pension. The tabulation in Ext.P1 letter of the Bank would show that there was a difference in payment ranging from Rs.3,489/to Rs.7,175/- during the period from July 2009 to June 2012. However, it came down to Rs.2,917/- during September 2012 to February 2013.

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5. The 1^st respondent has filed a statement producing the original pension payment order in the case of the petitioner and stating that the qualifying service of the deceased 1^st petitioner was not properly recorded in the pension payment order and the age of the deceased petitioner which was entered

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as 26 years, was mistakenly reckoned as his qualifying service for the purpose of pension whereas the qualifying service was actually 7 years and 21 days only. It is stated that the mistake occurred during computerization. Based on this mistake in entering the qualifying service as 26 years, his pension was erroneously revised from Rs.3,500/- to Rs.6,247/- and a sum of Rs.39,479/- was also paid to the petitioner towards arrears on 07.06.2010. It is stated that as per Annexure-1 pension payment order and Annexure-2 original pension payment order, the pension admissible to the deceased petitioner was Rs.36.35/- per month which was revised as Rs.1,275/- and which was again revised as Rs.3,500/- w.e.f. 01.01.2006. It is stated that it was only on receipt of Annexure-3 letter dated 24.01.2013 from the Senior Records Officer that the 1^st respondent noticed the mistake when the aggregate excess payment was found to be Rs.2,06,902/-. It is stated that the date of birth was not available in the original pension payment order and that the date of birth evidenced by the software from the data base was wrong and hence he was receiving additional pension also from July 2011 onwards, treating him to have completed 80 years. The payments continued like it till

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Ext.P1 letter was issued.

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6. It is stated that the deceased pensioner had as per Annexure 4 letter dated 18.10.2012 informed the Bank that he attained the age of 80 years in 18^th April 2012 whereas he started drawing additional pension in July 2011. According to the bank the revision of pension consequent to the 6^th pay commission was carried out by the software automatically, based on the incorrect data collected in the database in which the qualifying service was entered as 26 years in the place of 7 years. It is stated that wherever the qualifying service was less than 15 years, the Bank has taken up the matter with the Principal Controller of Defence Accounts. According to them the mistake came to its notice only from Annexure 3 letter dated 24.01.2013 of the Senior Records Officer. It is stated that the matter was taken up with the Principal Controller of Defence Accounts as per Annexure 5 to 7 letters in which the amount actually due to the pensioner on revision was pointed out. The 1^st respondent submits that the deceased pensioner had furnished Annexure 9 undertaking, agreeing to refund or make good to the bank any amount to which he was not entitled or any excess amount which might be credited to his account over that

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to which he would have been entitled to. Therefore it is stated that the 1^st respondent is entitled to recover the amount paid in excess from the pensioner.

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7. The 3^rd respondent has filed a counter affidavit stating that deceased petitioner was invalided out on account of pulmonary tuberculosis at a time when he had rendered only 7 years and 21 days of service; he was granted disability pension as per pension payment order dated 30.8.1960 which was revised as per order dated 13.01.1961. It is further stated that revised pension payment orders dated 3.1.2006, 29.3.2007, 11.2.2011 and 26.5.2011 were issued in his case and forwarded to the pension disbursal agency-1^st respondent. It is further stated that in Ext R3(b) pension payment order issued at the time when the deceased petitioner was invalided out from service, his age was shown as 26 years. It is pointed out that the deceased pensioner was initially drawing pension through the treasury, as can be seen from Ext.R3(b) pension payment order, which was forwarded to the Treasury Officer, Kozhikkode. It is stated that the deceased pensioner had submitted an application dated 29.12.2012 with respect to his date of birth and that as per Ext.R3(a)/Annx.3 letter he was informed that

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his age was recorded in the enrollment form as 19 and 2/12 years and that his age was 26 years as on 07.11.1958, the date on which he was invalided out, as recorded in Ext.R3(b) pension payment order dated 30.08.1960. It is stated that the reply was sent to him with copy to 1^st respondent Bank. According to the 3^rd respondent, as per clause 5.2 of Ext.R3(c) circular special pension/invalid pension/service element of disability pension in respect of PBOR discharged with less than 15 years qualifying service and service pension to TA personnel irrespective of their qualifying service would also need to be revised by Pension Sanctioning Authorities, as specific table indicating revised rate of pension in such cases have not been prepared and Pension Disbursing Authorities have to refer such cases to Pension Sanctioning Authorities concerned as per specimen given in Annexure-A to Ministry of Defence letter dated 08.03.2010.

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8. The learned standing counsel for the 1^st respondent points out that they did not take up the case of the deceased petitioner for revision/or approval with the Principal Controller of Defence Accounts (PCDA) since the qualifying service was entered in the database as 26 years mistakenly and

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that in all other cases where the qualifying service was less than 15 years, they had taken up the matter with the PCDA. It is the case of the 1^st respondent that whenever pension payment is made through it they will get an undertaking in order to ensure that no loss is caused at the instance of the bank on account of any mistake committed by them. Therefore when a mistake is found out and it is rectified, they are entitled to invoke that undertaking and therefore recovery is permissible.

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9. Heard the learned Counsel on either side.

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10. In this case the deceased petitioner did not have a case that he did have service more than 7 years and two moths. Ext.P1 would show that excess payment was made to petitioner based on certain technical errors in entering data which formed an incorrect database based on which the pension happened to be revised erroneously. It is also seen that the deceased pensioner was never responsible for the same. In Annexure A4 letter the pensioner himself informed the Bank that he completed 80 years on 18.04.2012 and became entitled to additional pension from that day, whereas additional pension was being paid to him from July 2011 onwards based on the incorrect entries in the database kept by the Bank. Thus the

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pensioner happened to draw pension at rates far in excess than for which he is eligible. Apart from that he could draw additional pension also with reference to the same rates from an earlier date. The pensioner did not have a case that he was having qualifying service of 26 years or more than 7 years and 2 months or that he was eligible for additional pension from a date earlier to August 2012. Excess amount was being paid to the pensioner from April 2009 onwards, though not on account of any contribution from the pensioner. Just because pensioner happened to be paid excess pension it cannot be said that the same cannot be revised and the mistake cannot be rectified or that pension should be continued to be paid at the erroneously calculated rates, for which he was not eligible.

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11. Now the pensioner is no more and the additional 2^nd petitioner is getting family pension. No reduction is effected on account of the interim order. In the above circumstances, I find that the respondents should be allowed to rectify the mistake and revise the pension. The additional 2^nd petitioner would be entitled to family pension on the basis of the pension which was actually admissible to the pensioner, i.e on the basis of the actual qualifying service.

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In the circumstances of the case, though the 1^st respondent has produced Annexure-9 undertaking of the pensioner, it would not be proper to recover the entire pension paid in excess from the family pension due to the additional petitioner. Respondents are free to make recovery from the monthly family pension on condition that the additional petitioner shall be paid the minimum family pension every month. No other proceedings shall be initiated against her for recovery of excess amount paid. In case there is any arrears due towards family pension, respondents would be free to effect recovery from it.

Sd/-

P.V.ASHA

JUDGE

AS/rkc

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A PHOTOSTAT COPY O CPPC/0822/1439/2 D STATEMENT OF PAYME PENSION BENEFITS TO 2013.	F THE LETTER NO. LETTER NO. ATED 14-3-13 ALONG WITH THE NT MADE BY THEM TOWARDS THE OF THE PETITIONER FROM 2009
EXHIBIT P2	A PHOTOSTAT COPY HONOURABLE COURT PETITION NO. 30901	OF THE JUDGMENT OF THIS DATED 15-1-09 IN ORIGINAL OF 2002 (D)
EXHIBIT P3	A PHOTOSTAT COPY PASS BOOK OF THE 10643264673 OF STA	OF THE RELEVANT PAGES OF THE PETITIONER AS ACCOUNT NO. TE BANK OF INDIA KANNUR.
EXHIBIT P4	A PHOTOSTAT COPY 20-3-13 SENT BY RESPONDENTS 1 TO 3	OF THE REPRESENTATION DATED THE PETITIONER BEFORE THE

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3RD EXHIBITS	RESPONDENT'S :
EXT.R3A	TRUE COPY OF THE DT.24.1.13, ISSUE RECORDS.	LETTER NO.6581553/OPN/NE(DP) D BY CORPS OF MILITARY POLICE
EXT.R3B	TRUE COPY OF NO.D/4497/60 DT.3 CONTROLLER OF DEF	PENSION PAYMENT ORDER 0.8.1960 ISSUED BY PRINCIPAL ENCE ACCOUNT ALLAHABAD
EXT.R3C	TRUE COPY OF CIRC BY PRINCIPAL CON ALLAHABAD	ULAR NO.430 DT.10.3.10 ISSUED TROLLER OF DEFENCE ACCOUNT
EXT.R3D	TRUE COPY OF THE DT.4.4.13 ISSUED RECORDS	LETTER NO.6581553/OPN/NE(DP) BY CORPS OF MILITARY POLICE

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1ST & 2ND RESPONDENTS' EXHIBITS

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ANNEX.1	COPY OF THE ORIGINAL PPO NO.D/4497/60
ANNEX.2	CORRIGENDUM PENSION PAYMENT NO.D/110/2007	ORDER
ANNEX.3	COPY OF THE LETTER FROM RECORDS DT.24.1.13	OFFICER
ANNEX.4	COPY OF THE LETTER DT.18.10.12 SEND DECEASED 1ST PETITIONER TO THE 2ND RES	BY THE PONDENT.
ANNEX.5	COPY OF THE LETTER SEND BY THE 1ST RE TO THE PRINCIPAL CONTROLLER OF ACCOUNTS (PCDA) DT.25.3.13	SPONDENT DEFENCE
ANNEX.6	COPY OF THE LETTER SEND BY THE 1ST RE TO THE PRINCIPAL CONTROLLER OF ACCOUNTS (PCDA) DT.10.5.13	SPONDENT DEFENCE
ANNEX.7	COPY OF THE LETTER SEND BY THE 1ST RE TO THE PRINCIPAL CONTROLLER OF ACCOUNTS (PCDA) DT.10.5.13	SPONDENT DEFENCE
ANNEX.8	COPY OF THE LETTER SENT TO THE DECE PETITIONER DT.27.3.13	ASED 1ST
ANNEX.9	COPY OF THE LETTER OF UNDERTAKING SUBM THE DECEASED 1ST PETITIONER BEFORE RESPONDENT.	ITTED BY THE 2ND

O.Padmanabhan Nambiar v. Chief Manager

Case brief

What is this about?

What did the court decide?

O.Padmanabhan Nambiar v. Chief Manager

Case brief

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What did the court decide?

What the court decided

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