Recovery of excess pension paid to widow not permissible if miscalculation done by department, rules AFT
Vijay Mohan
Chandigarh, October 21
The Armed Forces Tribunal has quashed orders effecting the recovery of excess family pension paid to the widow of an Air Commodore after holding that the miscalculation was on part of the department concerned and that there was no fault on part of the recipient.
The widow’s husband had died in 2011 and she had been receiving family pension since. Several years later, she received a communique that due to an error committed by the department, she had been receiving higher pension.
The total excess amount paid to her from 2012 to 2018 was Rs 19.41 lakh and according to her averment, from September 2019 to October 2022, the department recovered Rs 11.51 lakh from her.
She contended that the recovery was unsustainable in law as recovery from the amount payable to a petitioner is not permissible until and unless it is established that the excess payment was on account of misinterpretation or fraud on part of the recipient. Further, no recoveries can be made if such payments have been consistently made for more than five years.
The Tribunal’s Bench comprising Justice Rajendra Menon and Lt Gen CP Mohanty observed that in accordance with principles laid down by the Supreme Court, when excess payment is made and the payment is not a result of any misinterpretation or fraud on part of the employee and if such excess payment was the result of the employer applying a wrong principle or a particular interpretation of the rule or by some mistake, and if subsequently the error is detected, then excess payment of the emoluments or allowance are not recoverable.
The Tribunal held that from the facts of the case, it was clear that the petitioner was not responsible for the erroneous payment of family pension. “She is a widow, she received family pension after the death of her husband, continued to receive it for a period of more than five years and there is nothing available on record to remotely impute or connect any motive misinterpretation or fraud on her part,” the Bench said. “On the contrary, the mistake was on the part of the respondents,” the Bench added.
Ruling that recovery was unsustainable in law and it causes serious hardship to the widow and vitiates the principles of equality, the Bench directed that no recovery be made from the family pension of the petitioner and any recoveries made so far are to be refunded to her.
The department concerned can, however, only correct the error if any, and pay modified pension to the petitioner in accordance with law after giving her a hearing, the Bench added.
