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2017 Supreme(All) 1881
IN THE HIGH COURT OF ALLAHABAD
V.K. SHUKLA, MAHESH CHANDRA TRIPATHI, JJ.
Smt. Ramkali - Appellant
Versus
U.P. Power Corporation Ltd. & Others - Respondents
Special Appeal No. 238 of 2017
Decided On : 26-04-2017
For the Appellant : Ranjit Saxena
For the Respondent: C.S.C. Mahboob Ahmad, Pranjal Mehrotra
Under no condition can recovery be initiated against a retired employee/legal heir for excess payment of pension, as established in Rafiq Masih's case.
Headnote:
Family Pension - Recovery of Excess Payment - Allahabad High Court Rules, 1952 - Writ A No. 11601 of 2017 - State of Punjab and ors. v. Rafiq Masih (White Washer) and ors (2015) 4 SCC 334
Fact of the Case:
The petitioner, widow of a deceased Class-IV employee, challenged the recovery of excess family pension made by the electricity department after her husband's demise. The Single Judge dismissed the writ petition on the grounds of non-challenge and refund of the excess amount by the petitioner.
Finding of the Court:
The Court found that similar benefits had been extended to other similarly situated individuals in line with the judgment in Rafiq Masih's case. It held that the recovery of excess family pension and the Single Judge's order were contrary to the law and set them aside, directing the respondents to release the recovered amount to the petitioner.
Issues: The recovery of excess family pension, non-challenge of the order, and the applicability of the judgment in Rafiq Masih's case were the key issues.
Ratio Decidendi: The Court's decision was influenced by the law laid down in Rafiq Masih's case, which held that under no condition can recovery be initiated against a retired employee/legal heir for excess payment of pension.
Final Decision: The Special Appeal was allowed, and the respondents were directed to release the recovered amount to the petitioner.
V.K. Shukla and Mahesh Chandra Tripathi, JJ.
Smt. Ramkali wife of late Pritam has preferred the present Special Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 assailing the order dated 20.3.2017 passed by learned Single Judge of this Court in Writ A No. 11601 of 2017 (Smt. Ramkali v. U.P. Power Corporation Ltd through Chairman, Lucknow and 5 ors) wherein he has proceeded to dismiss the writ petition with following observations :-
"From the petition it appears that upon death of the husband of the petitioner, family pension was admitted to the petitioner but by order dated 18.5.2016 it was directed that the petitioner was being given family pension in excess of the amount that she was legally entitled. The order states that the petitioner was being paid pension of Rs. 3865/- but in fact she was entitled to pension only Rs. 3500/- and, therefore, the excess amount that was being paid, was directed to be recovered. The said order dated 18.5.2016 was not challenged by the petitioner earlier and the petitioner refunded the amount of Rs. 38744/-. Now a mandamus is being sought against the Department to return the amount recovered from the petitioner. If the petitioner was aggrieved by the recovery, she ought to have challenged that order, which was not done and the amount was allowed to be recovered. Now the prayer for the return of the amount so recovered, has no basis.
The writ petition is misconceived and it is, accordingly, dismissed."
2. The factual situation that is accepted before us is that husband of petitioner was working as Class-IV employee in the electricity department and he died leaving behind the petitioner as the legal heir to get family pension. Consequently the family pension of Rs. 3865/- per month was fixed, which was reduced to Rs. 3500/- per month and the recovery of the excess family pension paid to the petitioner was made by the order dated 18.6.2016. The said action of the respondents has been assailed by the petitioner-appellant in Writ A No. 11601 of 2017 on the ground that the recovery of excess payment made towards the family pension was totally illegal and against the judgement of Hon'ble Apex Court in the case of State of Punjab and ors. v. Rafiq Masih (White Washer) and ors (2015) 4 SCC 334.
3. It has been claimed in the writ petition that the husband of the petitioner was working as Class-IV employee and after his demise the excess payment made towards family pension could not be recovered from the widow. The excess amount of family pension was paid by the department and no reason has been given in the order dated 18.5.2016 except that the payment was made by mistake of the department. No recovery can be made from the family pension or the pension in the matter of Class-III and IV employees. Learned Single Judge has dismissed the writ petition on the ground that the petitioner had not earlier challenged the order dated 18.5.2016 and she refunded the amount of Rs. 38,744/-. If she was aggrieved by the recovery, she ought to have challenged that order, which was not done and the amount was allowed to be recovered.
4. Shri Ranjit Saxena, learned counsel for the petitioner-appellant has vehemently contended that the recovery of excess family pension paid to the petitioner was made by the order dated 18.6.2016 and the same was against the judgement of Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (supra) in which it was held that under no condition the recovery can be initiated against the retired employee/legal heir. The petitioner appellant is an illiterate, old and infirm lady and the entire action has been taken by the respondents ex-parte, whereas in similar circumstances, learned Single Judge has intervened in the matter and the same benefit has been extended to various other similarly placed incumbents but in the present matter, learned Single Judge has dismissed the writ petition only on the ground that in the present matter, the amount in question has already
