Pratap Kr. Ray, J. - (1.) Heard the learned Advocates appearing for the parties.
(2.) In the instant case, it is the grievance of the petitioner that after his retirement though pension payment order was issued allowing the pension and gratuity following the Death-cum-Retirement Benefit Scheme, 1981, but subsequently such has been withdrawn, by assigning cause, inter alia, that the petitioner never opted for Death-cum-Retirement Benefit Scheme, 1981 and remained all through under the Contributory Provident Fund Scheme. The petitioner has challenged the decision of withdrawal of all retirement benefits as granted earlier under the Death-cum-Retirement Benefit Scheme, 1981, contending, inter alia, that once the pension payment order has been issued, there is no scope to cancel it and further on the ground that the concerned bank committed illegality by refunding the amount as per the direction of the Government. From the writ application, it appears that the petitioner had withdrawn both the shares of Contributory Provident Fund namely, employer and employee after his retirement, which is clearly suggestive of the fact that the petitioner opted Contributory Provident Fund Scheme. Once a teacher opted such Contributory Provident Fund and had withdrawn money from such Contributory fund not only in respect of employer's own share but also the employee's share, the teacher concerned cannot urge that in the event of release of pension on mistake following the Death-cum-Retirement Benefit Scheme, same cannot be cancelled and/or withdrawn. It appears that the pension payment order was released on mistake by considering the petitioner as optee of Death-cum-Retirement benefit Scheme, 1981. But it is an admitted fact that the petitioner was an optee of Contributory Provident Fund Scheme and he never reverted his such position. Furthermore; his conduct of withdrawal of both the shares of Contributory Provident Fund proves the fact that the petitioner remained as optee under the Contributory Provident Fund Scheme. It is a settled law that once there is a mistake in the matter of releasing of any grant or of any amount, the Administration has full liberty to correct such mistake by withdrawing or cancelling such decision. The doctrine of irrevocability has no applicability if any decision is based on mistaken fact. Reliance may be placed to the passage of Administrative Law of H.W.R. Wade and C.F. Forsyth, Seventh Edition at page 262, which reads thus : "A mistake may lead to action being taken upon a wholly wrong basis so that some different action needs to be substituted. This happened where a local education authority agreed to pay the cost of school transport for a girl, supposing that she lived more than three miles from the school and that they therefore had a statutory duty to pay. When it was found that the distance was less than three miles, so that they had a power to pay but no duty, they refused to do so. The Court of Appeal rejected the plea that the original decision was irrevocable, since it was not taken in the exercise of any power to determine a question of legal right and could not affect the duty to exercise discretion when the true facts appeared." Having regard to the fact and the settled administrative law, this Court is not finding any merit in the writ application and on to the argument of the learned Advocate that the pension order once has been issued even if no mistake could not be withdrawn.
(3.) The learned Advocate for the State respondents has relied upon a judgment passed in the case V. Gangaram v. Regional Joint Director & Ors, reported in (19K)7)6 SCC 139 : [1997(4) SLR 311 (SC)]. This case has no applicability herein and the ratio of the said case is against the petitioner's contention. Therein, the Apex Court directed deduction of excess amount even from the pension applying Section 11 of the Pensions Act, 1871.;