The complainant files this complaint u/s 12 of C. P. Act, 1986 praying for an order directing the Opposite Party to stop immediately further deduction from her pension, to refund the amount already deducted with interest, Rs.70,000/-compensation, Rs.10000/- for litigation cost and Rs.120,000/- for harassment & severe mental loss.
The case of the complainant, in brief is that she being a widow pensioner of Eastern Railway having PPO No.-ER HQ/10676/1991/2908 and drawing pension in SB account number being no.2308695 in Chandannagar/ Hooghly Post Office as per rule 90 of Railway service (pension) rule 1993. The OP since 28th February, 2014 through his notice dt.7.2.2014 started to recover Rs.4399/- per month from her meager pension with the plea that eastern railway vides its two memos no. P/rev/VIth CPC/10767/10860 dt.18/11/2013 has reduced her pension. E Rly has reduced her family pension flouting pension rules and judgments of Hon’ble Supreme Court. The complainant further averred that OP being the disbursing authority having received twin letters of reduction of pension from E. Rly acted arbitrarily and unreasonably to exercise the process of recovery from pension by flouting the rules and even disregarding judgement of Hon’ble High Court. OP no.1 issued a letter dated 7.2.2014 to SPM Chandannagar PO with a copy to her about recovery of Rs.72,734/- and deduction @ Rs.4399/- pm from her pension. OP directed to start recovery wef 28.2.2014 and no chance has been given to this complainant to defend. The pension rule clearly stated that the retired railway servant concerned shall be served with a notice by the HOO requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him. OP no.2 did not give any justification and authenticity of Rs.72734/- which he calculated as overdrawn. It appears to be a departure from rule and a preplanned move to protect the uncalled for lapse. She also averred that as per DOP& PW’s OM 38/37/08-P&Pw dt.-28.1.2013 there will be no change in the amount of revised pension/ family pension paid during the period 01.01.2006 and 23.9.2012. The Hon’ble Kolkata High Court vide its judgment dated 27/4/2012 in WP No. 5643W/2010 has given its specific observation and dismissed the undertaking plea to recover excess amount paid to a pensioner. So the OP has violated the rules and regulations of the pension –OM of GOI and HC judgment by abusing his power and unjustifiably made the life of this complainant miserable both financially and mentally. The overwhelming harassment and mental loss meted out to her is irreparable and deserves huge compensation.
The opposite party filed written version and denied the allegations as leveled against him and assailed that the complainant is the holder of PPO No.ER/HR/HQ/1991/2908 drawing pension from Chandannagar MDG under Serampore Head Office through SB A/c no. 2308695. Consequent upon downward revision of family pension of Smt. Maya Basu Roy vide FA & CAO pension letter no.P/Rev/VIth CPC/10767/10860 dt.18.11.2013 communicated by GM , WBPC/Kol.12 under letter No. Rly/Pen/R-705,722,728,736,740,749, Pen-II 3176 dt.24.01.2014. Pension was fixed to Rs.4440/- pm from Rs.5085/-pm resulting of over payment of Rs.72,734/- from 01.01.2006 to 31.01.2014. Which should be credited by Smt. Maya Basu Roy in a lum vide this office letter of event no. dt. 07.02.2014. As the complainant failed to deposit the same, the overpaid amount adjusted from D.R. @ Rs.4399/-pm. wef February,2014. It is also mentioned that as per F.A and CAO/ pension order no. P/PEN/HQ/DWR/10767/10860 dt.18.11.2013 the family pensioner should deposit the overpaid amount within 30 days from the date of issue of the notice i.e. dt.07.02.2014 but surprisingly in the instant case, the family pensioner failed to deposit the overpaid amount. So the overpaid amount was ordered to recover from dearness relief Rs.4399/- pm. from Feb.14. The OP shall file calculation sheet as per FA and CAO/ Pension order dt.01.11.2013 recovery of overpaid amount was started from month of Feb.14 and Smt. Maya Basu Roy did not submit any communication to this office on this issue. No harassment or mental loss meted out to complainant at the instance of OP who acts as per order /circular/ notification/ Direction. Petitioner is not entitled to get any relief as prayed for and the application is liable to be rejected with cost.
Complainant filed evidence on affidavit which is nothing but the replica of complaint petition.
In the affidavit in chief the OP assailed that consequent upon downward revision of family pension of Smt. Maya Basu Roy vide FA & CAO pension letter no.P/Rev/VIth CPC/10767/10860 dt.18.11.2013 communicated by GM, WBPC/Kol.12 under letter No. Rly/Pen/R-705,722,728,736,740,749, Pen-II 3176 dt.24.01.2014. Pension was fixed to Rs.4440/- pm from Rs.5085/-pm resulting of over payment of Rs.72,734/- from 01.01.2006 to 31.01.2014. which should be credited by Smt. Maya Basu Roy in a lum vide this office letter of event no. dt. 07.02.2014. As the complainant failed to deposit the same, the overpaid amount adjusted from D.R. @ Rs.4399/-pm. w.e.f. February, 2014. Sr. postmaster Serampore H.O. is not pension sanctioning authority for Railway pensioners / family pensioners. He is the only disbursing authority and has nothing to do with the downward revision of the family pension of this Complainant.
Both sides filed brief notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Mrs. Maya Basu Roy is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Mrs. Maya Basu Roy is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as she used to receive pension of Eastern Railway from the post office under the control of OP, so she is entitled to get service from the OP.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/having office address within the district of Hooghly. The complaint prayed a direction upon the OP to stop immediately further deduction from her pension, to refund the amount already deducted with interest, Rs.70,000/-compensation, Rs.10,000/- for litigation cost and Rs.120,000/- for harassment & severe mental loss ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that she is a widow pensioner of eastern railway and that she draws her family pension from Chandannagar Post Office and that the OP vide notice dated 07.02.2014 since 28th Feb started to recover Rs.4399/- per month from her pension on the plea that eastern railway vide two memos no. P/Rev/VIth CPC/10767/10860 dt.18.11.2013 had reduced her pension. She further assailed that Eastern Railway has reduced her family pension flouting pension rules and judgements of the Hon’ble supreme Court and OP being the disbursing authority received twin memos from eastern railway acted arbitrarily and unreasonably exercised power to recover the excess pension violating/flouting the rules and even disregarding the judgement of Hon’ble High Court and the complainant got no opportunity to defend as a result the life of the complainant became miserable so she getting no alternative sought the redressal as prayed in the prayer portion of the complainant petition.
The case of the OP is that complainant used to draw her pension from the Chandannagar MDG and consequent upon downward revision of family pension communicated by G.M.(P.A.&F) dt.24.01.2014 family pension of the complainant was fixed at Rs.4440/- p.m. from Rs.5085/- p.m. resulting in over payment of Rs.72734/- from 01.01.2006 to 31.01.2014. This complainant was informed by this OP vide letter dated 07.02.2014 to deposit the extra amount but failed to deposit the same and the over payment was adjusted from After perusing the complaint petition and documents in the record and hearing the parties in length it appears that the complainant never denied the overpaid amount but resisted the mode of deduction adopted by the OP following the direction of pension sanctioning authority i.e. Eastern Railway. By referring the case decisions of Hon’ble High Court and rules of RBI the complainant assailed that more than 1/3rd of net pension should not be recovered from the pension to adjust any amount of excess payment. She also assailed that the ER gave an arbitrary and brutal instruction to recover entire DR from the complainant and this OP should have deducted Rs.3076/-pm (1/3rd) in place of Rs.4399/-pm which is abnormally high from a paltry net pension of Rs.9286/- pm. The complainant referred a case decision of Central Administrative Tribunal, Ernakulam bench in original application No.180/00334/2016 dated Nov.7,2016 in which it is observed by the Tribunal that in every case of recovery, even the excess payments due to the mistake committed by the pension disbursing banks, they should take instructions from the pension sanctioning authority and only on obtaining sanction for recovery in tune with the law laid down by the apex court in Rafiq Masih’s case, such recoveries can be effected only after giving notice of intended recovery to the petitioner.
In the instant case the OP herein being the Senior Post Master, Head Post Office under whose control the impugned pension has been disbursing and he has no authority to reduce or enhance pension of the complainant. It appears from the case record and documents produced before us that the OP acted in accordance with the direction of the pension sanctioning authority subject to giving notice to this complainant. The Eastern Railway is the right person who is responsible for enhance or reduce of pension and also to collect excess pension from the pensioner/family pensioner. So his/ her presence/ version is essential for proper adjudication of the complaint case.
The general rule is that as and when any person likes the complainant coming forward with a complaint alleging the practice of fraud or willful act or default on any of the officer of the Post Office in question must have to prove the same in order to mulct liability upon such officer against whom the complaint is launched.
In view of our aforesaid discussion the deficiency of service on the part of the opposite party is not proved on record and in the contrary he/she acted as per the instruction of the pension sanctioning authority i.e. the Eastern Railway as a disbursing authority. This OP is no way caused suffering to this complainant.
(4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove her case, so the Opposite Party is not responsible to compensate this complainant.
ORDER
Hence, it is ordered that the complaint case being No.85/2015 be and the same is dismissed on contest against the Opposite Party with no order as to cost.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
