Jharkhand High Court
Rajendra Prasad vs The State Bank Of India on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
W.P.(S) No.1804 of 2016
With
W.P.(S) No.2229 of 2016
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.1804 of 2016
-----
Rajendra Prasad, Son of Late Baijnath, Presently Resident
of Stadium Road, Sahebganj, P.O.- Sahebganj, P.S.-
Sahebganj, District Sahebganj, Jharkhand.
... ... Petitioner
Versus
1. The State Bank of India, through its Chairman having
its Corporate Office, AT & P.O.-Nariman Point, Mumbai,
Maharashtra.
2. The Assistant General Manager(in short A.G.M.), The
Centralised Pension Processing Centre(in short
C.P.P.C.), The State Bank of India, Administrative Office
Building, 4th floor, J.C. Road, Patna, P.O.- G.P.O..
Patna, P.S.- Kotwali Thana, Patna, District- Patna,
Bihar.
3. The Chief Manager, Main Branch, Sahebganj, State
Bank of India, AT & P.O.- Sahebganj, P.S.-Sahebganj,
District Sahebganj, Jharkhand.
4. The Chairman-Cum-Managing Director, (in short
C.M.D.) TELECOM, Bharat Sanchar Nigam Limited, 8C-
H.C.Mathur Road, Janpath, New Delhi.
5. The Telecom District Manager(T.D.M.), Bharat Sanchar
Nigam Limited, AT & P.O.- Dumka, District- Dumka,
Jharkhand.
6. The Communication Accounts Officer(Pension), Office of
the Chief Communication Controller of Accounts, AT-
A.R.T.T.C. Campus, H.B. Road, Ranchi, P.O.- G.P.O.,
Ranchi, District Ranchi.
... ... Respondents
With
W.P.(S) No.2229 of 2016
-----
Md. Khalil Sheikh, Son of Late Haji Nijamat, presently
Residen of village-Mansingha, P.O.-Narayanpur via
Rajmahal, P.S. Rajmahal, District Sahebganj, Jharkhand.
... ... Petitioner
Versus
1. The State Bank of India, through its Chairman having
its Corporate Office, AT & P.O.-Nariman Point, Mumbai,
Maharashtra.
2. The Assistant General Manager(in short A.G.M.), The
Centralised Pension Processing Centre(in short
C.P.P.C.), The State Bank of India, Administrative Office
Building, 4th floor, J.C. Road, Patna, P.O.- G.P.O..
W.P.(S) No.1804 of 2016
With
W.P.(S) No.2229 of 2016
[2]
Patna, P.S.-Kotwali Thana, Patna, District- Patna,
Bihar.
3. The Chief Manager, Main Branch, Sahebganj, The State
Bank of India, AT & P.O.- Sahebganj, P.S.-Sahebganj,
District Sahebganj, Jharkhand.
4. The Chairman-Cum-Managing Director, (in short
C.M.D.) TELECOM, Bharat Sanchar Nigam Limited, 8C-
H.C.Mathur Road, Janpath, New Delhi.
5. The Telecom District Manager(T.D.M.), Bharat Sanchar
Nigam Limited, AT & P.O.- Dumka, District- Dumka,
Jharkhand.
6. The Communication Accounts Officer(Pension), Office of
the Chief Communication Controller of Accounts, AT-
A.R.T.T.C. Campus, H.B. Road, Ranchi, P.O.- G.P.O.,
Ranchi, District Ranchi.
... ... Respondents
-------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioners : Mr. Lalit Kumar Singh, Advocate
For the Resp.-Bank : Mr. Rajesh Kumar, Advocate
Mr. Manindra Kr. Sinha, Advocate
Mr. Amit Kumar, Advocate
For the Resp. No.6 : Mr. Sudarshan Shrivastava, Advocate
-------
Order No. 16/Dated 17.02.2024
Per Sujit Narayan Prasad, J.
1. Both these writ petitions are under Article 226 of the Constitution of India whereby and whereunder the following prayers have been made :-
2. Prayer made in W.P.(S) No.1804 of 2016 "1. That through this Writ Application, the Petitioner prays YOUR LORDSHIPS/ Hon'ble Court to be pleased to issue appropriate Writ(s) and Order(s) to quash Order/Communication contained in C.P.P.C./AGM/ P&D/RTI/923/15-16 dated 26.10.2015 and Ref. No. C.P.P.C./AGM/SHP/977 dated 18.02.2016 whereby and whereunder a sum of Rs.3,26,969/- (Rupees Three lacs Twenty six thousand Nine hundred Sixty W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [3] nine) has been ordered to be recovered from monthly Pension of the Petitioner and being recovered also w.e.f. May 2015 in monthly instalment of Rs.6,400/- (Rupees Six thousand Four hundred) arbitrarily & illegally without issuing any Notice prior to making recovery, and in violation of Order passed and Law laid down by Hon'ble Supreme Court in the Case of State of Punjab & Ors. Versus Rafiq Masih & Ors. reported in 2015(1) J.L.J. R. SC-323 which is referred to and relied upon, because the Petitioner is a retired employee, the alleged excess payment has been made for a period in excess of five years on the day when order or Recovery has been issued and admittedly alleged excess payment has mistakenly been made by Pension disbursing Bank and the same has not been received by the Petitioner by making any misrepresentation and / or playing fraud in this regard at any point of time."
3. Prayer made in W.P.(S) No.2229 of 2016 "1. That through this Writ Application, the Petitioner prays YOUR LORDSHIPS/ Hon'ble Court to be pleased to issue appropriate Writ(s) and Order(s) to quash Order/Communication contained in CPPC/AGM/ SHP/603 dated 07.10.2015 and Letter No.1039 dated 11.03.2016 whereby and whereunder a sum of Rs.5,04,291/- (Rupees Five Lakh Four thousand Two hundred and Ninety one only) has been ordered to be recovered and being recovered also w.e.f. May 2015 from monthly Pension of the petitioner in monthly instalment of Rs.10,000/- (Rupees Ten thousand) arbitrarily, illegally without issuing any Notice prior to making recovery, and in violation of Order passed and Law laid down by Hon'ble Supreme Court in the Case W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [4] of State of Punjab & Ors. Etc. versus Rafiq Masih & Ors. reported in 2015(1) J.L.J.R. SC-323 which is referred to and relied upon, because the petitioner is a retired employee, the alleged excess payment has been made for a period in excess of five years on the day when order or recovery has been issued and admittedly alleged excess payment has mistakenly been made by Pension disbursing Bank and the same has not been received by the Petitioner by making any misrepresentation and / or playing fraud in this regard at any point of time and the case of the petitioner is fully covered by order passed by this Hon'ble Court in similar case."
4. The brief facts of the case as per the pleading made in the writ petition which are required to be enumerated, read hereunder as :-
Facts relating to W.P.(S) No.1804 of 2016
5. It is the case of the petitioner that the petitioner joined the Office of Telecom District Manager(T.D.M.), Dumka Bharat Sanchar Nigam Limited joined on 14.10.1974 and retired on attaining the age of superannuation on 31.08.2005 from the post of J.T.O.
6. After superannuation, the Petitioner has been authorised superannuation Pension w.e.f. 01.11.2007 vide P.P.O. No. T.A./Pen/DMK/ 134/J.C.-606 to be disbursed from State Bank of India, Sahebganj Branch. W.P.(S) No.1804 of 2016
With W.P.(S) No.2229 of 2016 [5]
7. Thereafter, Revised Pension Payment Order conveying Revision of monthly Pension w.e.f. 01.01.2007 in respect of the Petitioner has been issued vide letter No. 648 dated 26.12.2012.
8. It is the further case of the petitioner that monthly Pension by way of crediting lump-sum amount indicating as Pension has been disbursed to the Petitioner through Sahebganj Branch of State Bank of India. From April 2015 the monthly Pension disbursed to the Petitioner was reduced from Rs. 34 ,121/- per month to Rs. 19,429/- per month and w.e.f. March 2015 to Rs.13050/- per month without issuing any prior notice which is in violation of settled law of natural justice without following due procedure as per relevant provisions of C.C.S. Pension Rule, 1972.
9. Thereafter, the petitioner sought information under Right to Information Act, 2005 and in response thereof, incorrect / contradictory information was provided. Hence, the petitioner made appeal under Right to Information Act, 2005 whereby and whereunder it was communicated that a sum of Rs. 3,26,969/- mistakenly disbursed by concerned Bank which is now being recovered in monthly instalment of Rs.6,400/- per month w.e.f. May 2015. Against which the present writ petition has been filed for quashing the order of recovery.
W.P.(S) No.1804 of 2016
With W.P.(S) No.2229 of 2016 [6] Facts relating to W.P.(S) No.2229 of 2016
10. It is the case of the petitioner that he was given permanent absorption on Group B post of the Department of Telecommunication in B.S.N.L. w.e.f. 01.10.2000 and he is eligible for Pension/Gratuity as per Provisions of Rule- 37A of the C.C.S. (Pension) Rules.
11. On attaining the age of superannuation on 31.01.2006 he was retired from service. After his retirement, P.P.O. No. 584 dated 11.01.2007 has been issued in favour of the petitioner authorising payment of monthly pension through State Bank of India Rajmahal Sahebganj Branch. Thereafter Revised Pension Payment Order of monthly Pension w.e.f. 01.01.2007 in respect of the petitioner has been issued in March 2012 for payment of monthly Pension at revised enhanced rate.
12. It is the further case of the petitioner that monthly Pension by way of crediting lump sum amount indicating as pension has been disbursed to the petitioner vide S.B. Pass Book A/C No. 11705059135 pertaining to Rajmahal/ Sahebganj Branch of State Bank of India. The entries made w.e.f. April 2015 in regard to monthly Pension disbursed to the petitioner through S.B. A/C No. 11705059135 pertaining to Rajmahal/Sahebganj Branch of State Bank of India indicate that monthly Pension was reduced from Rs.49,534/- per month to Rs. 30,618/- per month, and W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [7] w.e.f. May/Oct 2015 to Rs. 18,652 /- per month without issuing any prior notice in this regard to the petitioner in violation of principle of natural justice and without following due procedure of C.C.S. Pension Rules, 1972.
13. Thereafter, the petitioner sought information in regard to reduction made from concerned Bank under Right to Information Act, 2005 and in response thereof incorrect/ contradictory information in regard to amount of alleged excess payment towards monthly Pension earlier made by State Bank of India, Sahebganj Branch was furnished to the Petitioner by concerned Respondent. Thereafter, in appeal made under Right to Information Act, 2005, Order/ Communication contained in Letter No.CPPC/AGM/SHP/ 603 dated 07.10.2015 has been issued in the name of the Petitioner whereby and whereunder a sum of Rs.5,04,291/- has been stated to be mistakenly disbursed by concerned Authorities Bank Respondent/which is being recovered in monthly instalment of Rs.10,000/- w.e.f. October 2015, against which the present writ petition has been filed.
14. Learned counsel for the petitioners submits that only question remains to be decided is that whether the order of recovery passed by the respondent Bank is legal and sustainable in the eyes of law.
15. It has further been submitted that it is settled principle of law that if any excess amount has been paid to W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [8] any employee without there being any fraud or representation on the part of the concerned employee, the excess amount paid cannot be recovered and there was no misrepresentation on the part of the petitioners or any fraud was played by the petitioners.
16. Further submission has been made that recovery of the amount is illegal and without any authority inasmuch as no prior notice was given to the petitioners before recovery of the aforesaid amount.
17. Learned counsel for the petitioners further relied upon the judgment passed in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors., (2015) 4 SCC 334 and submits that his case is fully covered and as such, they should be given same benefits.
18. He concluded his argument by submitting that the Hon'ble Apex Court in catena of judgments have held that once the benefit is given to the employee, without there being any misrepresentation or fraud on the part of the employee and even though there is a mistake in granting benefits by the respondent authorities, the amount already paid, cannot be recovered and admittedly in the instant case there is no misrepresentation committed by the petitioners.
19. While on the other hand, Mr. Rajesh Kumar, learned counsel appearing for the respondent Bank has W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [9] contended by referring to the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) wherein in the context of the master and employee relationship that judgment was passed. But, herein, the appellant-Bank was having no master employee relationship with the writ petitioner rather the Bank has acted only as an agent on the option being rendered for the family pension and the writ petitioner, in course thereof, has been paid excess amount to his entitlement, therefore, the decision taken by the respondent bank for recovery of the excess paid amount cannot be said to suffer from an error.
20. This Court, has heard learned counsel for the parties and gone across the pleading made on behalf of the parties in the writ petition.
21. The fact which is not in dispute in this case is that in both the writ petitions, the petitioners, have superannuated from service and after their superannuation, pension was fixed as per their entitlement.
22. It is also not in dispute that excess amount was paid inadvertently by the respondent Bank to the petitioners, recovery of which has been ordered in monthly instalments.
23. Learned counsel for the petitioners has relied upon the judgment rendered by the Hon'ble Apex Court in State W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [10] of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (Supra) in support of his contention and in response to the aforesaid submission, contention has been made that the judgment rendered in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) is not at all applicable in the facts and circumstances of the case since the Bank being an agent cannot be said to have any employer and employee relationship and the aforesaid judgment rendered by the Hon'ble Apex Court strictly is in the pretext of having the relationship of employer and employee.
24. This Court on the basis of the aforesaid submission, is required to consider as to whether -
(i) in the facts and circumstances of the case, the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) will be applicable; and
(ii) the action of the appellant-Bank in making recovery in a case where the amount of family pension has been disbursed by the Bank in the capacity of disbursing agent can be said to be improper.
25. Both the issues since are linked together, therefore, the same are being considered together.
26. This Court, in order to scrutinize the aforesaid judgment, deems it fit and proper to refer the factual aspect W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [11] first of the judgment rendered in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra).
27. The judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) reflects that the view of the Hon'ble Apex Court, i.e., in the case of Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521 was that there cannot be any recovery if there is no misrepresentation on the part of the concerned employee but subsequent thereto, the conflicting view has come in the case of Chandi Prasad Uniyal vs. State of Uttarakhand, (2012) 8 SCC 417 wherein the Hon'ble Apex Court was of the view that the excess payment if made exceeding the entitlement of the concerned employee is required to be recovered since the said amount is tax payer's money.
28. The Hon'ble Apex Court considering the conflicting view has referred the matter laying down the law before the Larger Bench but the Larger Bench instead of deciding the said issue has again referred the same to the Division Bench and in that pretext, the judgment of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) has been rendered.
29. The facts of the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (Supra) is that the excess payment has been said not to be recovered and, W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [12] in that view, law has been propounded as under para-18 wherein five categories have been given, i.e., in which circumstances, the recovery is to be made, for ready reference, the paragraph-18 is being reproduced as under :-
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
30. The background of propounding the aforesaid guideline is in the pretext of the fact that it was the decision of recovery by the employer as would appear from the very first paragraph of the judgment wherein the mistake was W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [13] crept up while fixing the salary of an employee consequent upon the upward revision of pay scale, the law has been laid down that if the fault has been committed by the employer, there cannot be any recovery but subject also to the condition which is relevant at para-18(v) wherein it has been laid down that in any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
31. The aforesaid guideline, therefore, stipulates that guideline no.18(i) - (iv) there cannot be any recovery but apart from that category, the decision is required to be taken by the Court that if the Court comes to the conclusion of making equitable balance of the employer's right to recover then in such circumstances, the recovery can also be made. Meaning thereby, that in the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) there is no absolute bar in making recovery if the guideline as contained in paragraph-18(v) is to be considered. But, that consideration is apart from the condition no. 18(i) - (iv).
32. This Court also deems it fit and proper to consider the judgment rendered by the Hon'ble Apex Court in High W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [14] Court of Punjab and Haryana and Ors. Vs. Jagdev Singh, reported in (2016) 14 SCC 267 wherefrom it is evident that it is also the case of the wrong fixation of revised pay scale. The pay scale is to be fixed by the employer, however, while fixing the pay scale, an undertaking was recorded of the concerned employee that in case of excess payment, the same is to be recovered.
33. The matter crept up that in view of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) there cannot be any recovery if there is any mistake on the part of the concerned employer. But, the Hon'ble Apex Court has not accepted the aforesaid submission and by taking into consideration that undertaking has been furnished by the concerned employee and in that view of the matter, the distinction has been carved out regarding the applicability of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) that in a case where undertaking has been furnished by the concerned employee, the law laid down by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) will not be applicable. For ready reference, the relevant paragraph(s) of the judgment rendered in High Court of W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [15] Punjab and Haryana and Ors. Vs. Jagdev Singh (supra), read as under:-
"3. The respondent furnished an undertaking and was granted the revised pay scale and selection grade of Rs 14,300-400-18,000-300. While opting for the revised pay scale, the respondent undertook to refund any excess payment if it was so detected and demanded subsequently. The revised pay scale in the selection grade was allowed to the respondent on 7-1-2002.
11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."
34. This Court after going through the judgments rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) and in High Court of Punjab and Haryana and Ors. Vs. Jagdev Singh (supra) has found therefrom that both the judgments were in the context of the employer and employee relationship. In both the judgments, it is the employer who has taken decision for fixation of pay and when it was found to have wrongly fixed, then the decision of recovery was taken.
35. This Court, therefore, is of the view that the very basis of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [16] Washer) and Ors. (supra) is based upon the employer and employee relationship and here the basis of making application of the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) is not available rather the Bank being an agent was disbursing the amount pertaining to pension in favour of the writ petitioners and in course thereof, excess payment exceeding their entitlement, was paid.
36. Exactly similar issue has been dealt with by the Division Bench of this Court in the case of Indian Bank (Erstwhile Allahabad Bank) v. Kiran Srivastava and Others [L.P.A. No.274 of 2020] wherein the Division Bench of this Court has quashed and set aside the order passed by the learned Single Judge whereby and whereunder by placing reliance on the judgment rendered by Hon'ble Apex Court in the case of State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra), learned Single Judge had held that if excess payment is not made on account of any misrepresentation or fraud on the part of the employees and such payment was made by the employer due to inadvertence recovery of such excess payment cannot be made.
37. The Division Bench of this Court in Indian Bank (Erstwhile Allahabad Bank) v. Kiran Srivastava and W.P.(S) No.1804 of 2016 With W.P.(S) No.2229 of 2016 [17] Others has held that the judgment rendered by the Hon'ble Apex Court in State of Punjab and Ors. vs. Rafiq Masih (White Washer) and Ors. (supra) will not be applicable in the facts of that case and the Bank being an agent is required to recover the excess paid amount in view of the undertaking furnished by the husband of the petitioner.
38. Further, the Bank is guided by the Circular of the Reserve Bank of India being the Controller of the Banks and as per the circular in vogue, undertaking was taken from the petitioners wherein it has been undertaken to refund or repay any excess amount paid to the petitioners to which they are not entitled and further they have undertaken that any loss suffered or incurred by the Bank in so crediting their pension to their accounts, they will forthwith pay the same to the Bank and also authorize the Bank to recover the amount due and in that view of the matter, the Bank being an agent is required to recover the said amount based upon the undertaking of the petitioners.
39. Accordingly, both the issues are answered in favour of the respondent-Bank.
40. In view of aforesaid discussion, this Court finds that both writ petitions lack merit and the same are hereby dismissed.
(Sujit Narayan Prasad, J.) Birendra /A.F.R.