Union Of India v. Indira Dey & ORS
$~30 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 122/2016 UNION OF INDIA .....Appellant Through:
Mr.J.S.Bhasin,Ms.Rashmi Priya,Mr.Nishant Shokeen and Ms.Indrajit Singh, Advocates
Versus
INDIRA DEY AND ORS.
..... Respondents Through:
Mr.Raghav Shankar, Mr.V.Siddharth and Ms.Sonakshi Malhan, Advocates for the respondent No.1
CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAYANT NATH
O R D E R
% 24.02.2016 CAVEAT No.167/2015 Since the learned counsel for the respondent No.1 entered his appearance, caveat stands discharged.
CM. No.6822/2016 (exemption) Allowed, subject to all just exceptions.
CM. No.6820/2016 (delay) Heard the learned counsel for the parties.
In view of the facts and circumstances explained in the application, the delay in filing the appeal is condoned and the application stands disposed of.
LPA 122/2016 Page 1 of 5
LPA 122/2016 & CM. No.6821/2016 (stay) 1.
The present appeal is filed seeking to impugn the order dated 24.09.2015 passed by the learned Single Judge allowing the W.P.(C) No.6644/2015 filed by respondent No.1.
2.
The issue which led to the filing of the writ petition is the stoppage of pension to the respondent under the Swatantrata Sainik Samman Family Pension Scheme (hereinafter referred to as the 'SSSFP Scheme') and recovery of pension paid retrospectively w.e.f. the year 2000. Respondent No.1 is the widow of late Sh.Shanti Nath Dey, who joined the Indian Army in 1941. He thereafter served the Indian National Army (in short the INA') from 1942 to 1946. After Independence, he joined the Indian Police Service (UP Cadre) and retired at the rank of the DIG. He was sanctioned Civil Service (IPS) Pension. Due to his service and sacrifices for the country, being a member of INA during the freedom movement, he became eligible for the pension w.e.f. 01.08.1980 under the SSSFP Scheme. He was also given the State Freedom Fighters Pension by the UP Government. 3.
Sh.Shanti Nath Dey passed away on 27.10.1989. The three pensions being received by him were transferred to respondent No.1, his widow. The SSSF Pension and the Service Pension continued to be deposited without interruption in the same bank account of respondent No.2, i.e. Bank of India, Hauz Khas Branch, New Delhi. These pensions continued till 30.04.2014, when without any intimation or notice these pensions were stopped and a lien was placed upon the bank account by respondent No.2/bank for recoveries of past pensions. The recovery was stated to be an amount of Rs.7,11,290.00. A show cause notice was sent on 30.01.2015 proposing to cancel the SSSF Pension. The reply to the show cause notice was sent by LPA 122/2016 Page 2 of 5
respondent No.1 on 07.02.2015 and 07.03.2015. However, respondent No.2 vide its letter dated 13.03.2015 intimated to respondent No.1 that an amount of Rs.3,60,000.00 had been withdrawn from the bank account towards the recoveries of past dues and the balance amount would be recovered by withdrawal from her account @ Rs.15,000.00 per month. 4.
It is contention of the appellant that as per letter No.8/2/98-FF(p) dated 13.10.2000 read with revised policy guidelines issued on 06.08.2014 by the appellant, the respondent was not eligible for SSSF Pension since 13.10.2000.
5.
Hence, the writ petition was filed by respondent No.1. 6.
By the impugned order, the learned Single Judge noted that the learned counsel for the appellant/Union of India fairly conceded that there are no pleas of fraud or misrepresentation having been practiced by respondent No.1 in drawing the two pensions, i.e., Civil Service Pension and SSSF Pension. The impugned order further notes that it is fairly conceded by the learned counsel for the appellant/Union of India, that there is nothing on record to show that letter of RBI dated 13.10.2000 was ever communicated to respondent No.1 or was publicised in any forum. All that was done was to inform the respondent No.2/bank about the said communication. Accordingly, the impugned order concluded that there was no reason for the respondent No.1 till April, 2014 to be aware that she was disentitled w.e.f. 13.10.2000 to the SSSF Pension.
The impugned order relying upon the judgments of the Supreme Court in the case of Col.(Retd.) B.J. Akkara v. Govt. of India, (2006) 11 SCC 709 and Syed Abdul Qadir v.
the excess payment was made on a wrong principle of calculations, the relief restraining the employer from recoveries of back excess payment is granted by the courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees from hardship that will be caused by recovery.
7.
We have heard the learned counsel for the parties and we see no merits in this appeal.
8.
We may first see the circular dated 13.10.2000 issued by the appellant. The alleged criteria disentitling respondent No.1 to receive SSSF Pension is allegedly stated in para 2 (ii) of the said circular as follows: "2.(ii)................................................. It has to be certified that such a dependent does not have any independent means of livelihood."
The term „independent‟ means of „livelihood‟ is not defined in the Circular. It cannot necessarily include the pension being received by respondent No.1 from the Civil Service as decided by the appellant. This aspect appears to be have been clarified only by the circular issued by the appellant dated 06.08.2014 wherein clause 6.1.2 states that the spouse/daughter who is having her own business or working in a private sector and income from such activities or job exceeds Rs.20,000.00 per month, the spouse/daughter should not be entitled to the SSSF Pension. Hence, the attempt on the part of the appellant to retrospectively recover the SSSF Pension w.e.f. 13.10.2000 appears to be erroneous. 9.
Further, it is obvious that respondent No.1 was never informed in any manner that she is not entitled to SSSF Pension since 13.10.2000. The respondents have on their own, knowing all the facts, have been depositing LPA 122/2016 Page 4 of 5
the SSSF Pension in the account of respondent No.1. Now 15 years later they cannot be permitted to harass an 80 year widow of a Freedom Fighter. Respondent No.1 has made no claim for future SSSF pension. 10.
In view of the factual and the legal position as stated by the impugned order and as above, we see no reason to interfere with the impugned order passed by the learned Single Judge. The appeal is dismissed. CHIEF JUSTICE JAYANT NATH, J.
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