Patna High Court
Kalawati Devi vs The Union Of India And Ors on 9 July, 2019
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4050 of 2019
======================================================
Kalawati Devi W/o late Dharm Nath Singh Resident of village Narwan,PS
Manjhi District Saran
... ... Petitioner/s
Versus
1. The Union of India through the Principal Controller of Defence Account
pension Draupadi Ghat Allahabad 211014
2. The General Manager,Centralized Pension Processing Centre (CPPC) State
Bank of India Administrative building Zonal Office Judges Court Road
Patna
3. The Assistant General Centralized Pension Processing CPPC state Bank of
India 4th floor state Bank of India 4th floor Administrative Office Judges
Court Road,Patna
4. The Branch Manager State Bank of India Mohammadpur Branch At and PO
Mohammadpur,District Saran
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Jitendra Kumar
For the Respondent/s : Mr.S.D. Sanjay (Addl. Solicitor General)
Mr. Rajesh Kumar Verma, A.S.G.
For the Bank : Mr. Sanjiv Kumar
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
C.A.V. JUDGMENT
Date : 09.07.2019
The present writ petition has been filed for restraining the
respondents from making any recovery of the alleged excess
payment of family pension made to the petitioner herein as also
for directing the respondents to refund a sum of Rs. 1,11,279/-
illegally recovered from the account of the petitioner herein.
The brief facts of the case are that the deceased husband
of the petitioner herein Late Dharam Nath Singh was working
in the Government of India with effect from 04.03.1964 and had
superannuated from his services on 31.07.1997. While working
on the post of Senior Auditor and serving in the office of Chief
Comptroller of Defence Account (Pension), Allahabad, Uttar
Pradesh a pension payment order dated 27th June, 1997 was
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issued to the husband of the petitioner and the pension was
commenced with effect from 01.08.1997. Unfortunately, the
husband of the petitioner died on 08.04.2001 whereafter the
petitioner had applied for family pension in the prescribed
format and thereupon she started getting family pension from
the respondent-Bank in Account No. 11632008308. Suddenly,
the petitioner received a letter dated 17.02.2008 stating therein
that the petitioner was liable to be paid family pension @ of Rs.
3665/- up to 03.07.2004 and thereafter she was to be paid a sum
of Rs. 2220/-, however, by mistake the enhanced amount had
been paid to her till November, 2005 resulting in excess
payment of Rs. 27,921/-, hence a sum of Rs. 2000/- would be
deducted each month so that recovery can be made regarding
the excess amount paid to the petitioner. Again on 10.08.2018,
the petitioner received a letter from the State Bank of India's
Centralized Pension Processing Centre, Patna, stating therein
that excess pension amounting to Rs. 4,13,958/- has been paid
to the petitioner over a period ranging from January, 2008 to the
month of July, 2018, hence the same is recoverable, thus, the
petitioner was requested to deposit the said amount in the
pension account.
The learned counsel for the petitioner has submitted that
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the respondent Bank is seeking to recover alleged excess
amount of payment made to the petitioner over a period of more
than 10 years. In this regard, the learned counsel for the
petitioner has referred to the provisions of the Defence Pension
Payment Instructions (Defence PPI), 2013, Rule No. 103.2
whereof is reproduced herein below:-
"103.2 Overpayments of pensions not
directed within 12 months of the date of
the first erroneous charge should not be
recovered from the pensioner's dues
without the orders of the Principal
Controller of Defence Accounts
(Pensions). If there are any arrears due
to the pensioner, the payment of the same
may be withheld pending decision for the
overpayment made. As soon as an
overpayment comes to the notice of the
Pension Disbursing Authority he should
report the full details of the case to the
Principal Controller of Defence
Accounts (Pensions) who will decide the
case himself, if it lies within his financial
powers or he will obtain the orders of
the competent authority or the
Government of India as the case may be.
To avoid hardship to the pensioner,
payment for the current period, however,
should be continued to the pensioner at
the correct rate admissible. On the
decision of the case by the competent
authority, the orders passed will be
communicated to the Pension Disbursing
Authority by the Principal Controller of
Defence Accounts (Pensions)."
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It is the contention of the learned counsel for the
petitioner that as per the aforesaid Rule 103.2, no recovery can
be made from the petitioner herein without the orders of the
Principal Comptroller of Defence Accounts (Pension) since the
over payments of pension in the case of the petitioner was not
deducted/recovered within 12 months of the first erroneous
charge.
Per contra, the learned counsel appearing for the
respondents no. 2 to 4, referring to the counter affidavit filed by
the Manager, State Bank of India, Centralized Pension
Processing Centre, Patna has submitted that earlier the pension
was being processed and paid from the Branch level, however,
the State Bank of India has constituted Centralized Pension
Processing Centre at Patna and in the year 2007-08 the pension
relating documents of the petitioner maintained at the
Mohammadpur Branch, have been migrated to the said
Centralized Pension Processing Centre at Patna and during the
course of migration on account of inadvertent mistake, the
petitioner has been getting family pension at a higher rate since
the year 2008. It has been further submitted that recently Data
Purification Drive was carried out during which it transpired
that the petitioner has been paid an excess amount of Rs.
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4,13,958/- since the year 2008.
The learned counsel for the respondent Bank has referred
to the Circular of the Reserve Bank of India dated 17.03.2016
wherein excess payment made to the pensioner are recoverable
from them. The learned counsel for the respondent-Bank has
also referred to the letter of undertaking given by the petitioner
herein, which is undated, wherein it has been undertaken to
refund or make good to the bank any amount to which she is
not entitled or any excess amount which has been credited to
her account over which she would be entitled. Thus, the
learned counsel for the respondent-Bank has submitted that the
Bank is justified in recovering the excess amount of pension
paid to the petitioner herein. In this regard, the learned counsel
for the respondent Bank has referred to a judgment rendered by
the Hon'ble Apex Court, reported in 2016(14) SCC 267 (High
Court of Punjab & Haryana & ors. Vs. Jagdev Singh),
wherein the Hon,ble Apex Court has directed to make recovery
of the excess amount paid to an employee on account of wrong
fixation of revised pay-scale, since from the said employee an
undertaking was taken to the effect that in case any excess
payment was found to have been made subsequently, he would
refund the same. Thus, the Hon'ble Apex Court has held that
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since the officer to whom excess 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 as
the officer had furnished an undertaking, while opting for the
revised pay-scale, hence he was bound by the said undertaking.
In such view of the matter, the Hon'ble Apex Court had said that
the law enunciated in the case of State of Punjab vs. Rafiq
Masiah, reported in (2015) 4 SCC 334 is not applicable in the
case under consideration.
Per contra, the learned counsel for the petitioner, in reply
to the submissions made by the learned counsel for the
respondent-Bank, has submitted that the judgment rendered by
three Judges Bench of the Hon'ble Apex Court in the case of
Rafiq Masih (supra) fully covers the present case and it has been
authoritatively held by the Hon'ble Apex Court, in paragraph
nos. 18 and 19, as follows:-
"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
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employers, would be impermissible in
law:
(i) Recovery from employees belonging to
Class-III and Class-IV service (or
Group 'C' andGroup 'D' service).
(ii) Recovery from retired employees, or
employees who are due to retire
within one year, of the order of
recovery.
(iii) Recovery from 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.
19. We are informed by the learned
counsel representing the appellant-
State of Punjab,that all the cases in
this bunch of appeals,would
undisputedly fall within the first four
categories delineated hereinabove. In
the appeals referred to above,
therefore, the impugned orders passed
by the High Court of Punjab and
Haryana (quashing the order of
recovery), shall be deemed to have
been upheld, for the reasons recorded
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above."
It has been next contended by the learned counsel for the
petitioner that the judgment relied upon by the learned counsel
for the Bank, as rendered by the Hon,ble Apex Court in the case
of Jagdeo Singh (supra) is distinguishable inasmuch as firstly
the recovery sought to be made in the said case was regarding
excess salary paid to the officer on account of revised pay-scale
whereas the present case pertains to excess payment of pension
not only ranging over a period of few months but ranging over
a period of 10 years, allegedly made solely on account of laches
and fault on the part of the respondent-Bank without there being
any misrepresentation or fraud having been committed on the
part of the petitioner herein. It is further submitted that the case
of Jagdeo Singh (supra) was not a case of retirement or grant of
excess family pension but the officer in the said case had been
compulsorily retired whereas in the present case the petitioner is
the widow of the deceased employee/pensioner. Thirdly, it is
submitted that much before passing of the judgment in the case
of Jagdev Singh (supra) the Hon'ble Apex Court, in the case of
Paras Nath Singh vs. the State of Bihar & ors., reported in
2009(6) SCC 314, has already held that in the case of illiterate
persons, not knowing the implications of giving an undertaking
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and in absence of any fraud or misrepresentation attributable to
the employee in question, a lenient view should be taken and
the amount already paid by the State authorities in excess
should not be recovered. In this connection, the learned counsel
for the petitioner refers to paragraph no. 2 to 6 of the said
judgment rendered in the case of Paras Nath Singh which are
reproduced herein below:-
"2. On 15-4-1995, the appellant was given
provisional first time-bound promotion
with effect from 13-6-1984. After about 10
years, more precisely on 19-9-2005, the
first time-bound promotion granted to the
appellant was cancelled. In view of such
cancellation of promotion, direction was
issued by the State/respondent to recover
Rs 1,01,529.50 from the salary of the
appellant at the rate of Rs 5000 per month.
Aggrieved by the aforesaid order directing
recovery, the appellant filed a writ petition
before the High Court of Judicature at
Patna contending that since the time-
bound promotion given to him was at the
fag end of his employment and that the
appellant, once having worked in the time-
bound promotional post, recovery against
him was not justified.
3. The writ petition, however, was dismissed
by a learned Judge of the High Court and
affirmed by a Division Bench of the High
Court in a letters patent appeal. Feeling
aggrieved, the appellant has filed this
special leave petition, which on grant of
leave, was heard in the presence of the
learned counsel for the parties.
4. Having heard the learned counsel for the
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parties and considering the fact that the
State authorities had allowed the appellant
to work for about 10 years and paid the
salary at the enhanced rate, in which the
appellant had no role to play except that
he had given an undertaking to the
authorities that in the event his first time-
bound promotion was cancelled, in that
case, he would be bound to refund the
same.
5. Having considered the fact that the
appellant was only a Class IV employee in
the State of Bihar and almost an illiterate
person and did not know the implications
of giving such undertaking and in the
absence of any fraud and
misrepresentation attributed to the
appellant and the amount being not so
excessive, in particular Rs 1,01,529.50, out
of which certain amount has already been
recovered from the salary of the appellant
by the State authorities, we are of the view
that a lenient view should be taken and the
amount already paid by the State
authorities to the appellant shall not be
recovered. However, whatever amount that
has already been recovered, shall not be
paid back to the appellant.
6. In view of the above, the impugned
judgments of the High Court are set aside
and the writ petition filed by the appellant
stands allowed. For the reasons aforesaid,
the appeal is allowed to the extent
indicated above. There will be no order as
to costs."
The learned counsel for the petitioner has thus submitted
that the law laid down by the Hon'ble Apex Court in the case of
Paras Nath Singh (supra) would be applicable in the present case as
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also the same squarely covers the present case, hence no
recovery can be made from the petitioner herein. It is further
contended that the law laid down by three Judges Bench of the
Hon'ble Apex Court in the case of Rafiq Masiah (supra) also
holds the field and squarely covers the case of the petitioner
herein.
I have heard the learned counsel for the parties and have
gone through the materials on record as also considered the
entire matter in its true perspective, after going through the
various judgments referred to by the learned counsel for the
parties. This Court finds favour with the arguments advanced
by the learned counsel for the petitioner. Nonetheless, before the
issue of permissibility of recovery arises, since over payments
of pension have been made ranging over a period of more than
10 years, no recovery could have been made or directed to have
been made from the petitioner herein without the orders of the
Principal Comptroller of Defence Accounts (Pension) i.e. the
respondent no. 1 herein, as is mandated in Clause 103.2 of the
Defence Pension Payment Instructions, 2013 and has not been
refuted or disputed by the learned counsel for the respondent
Bank. In such view of the matter, this Court deems it fit and
proper to quash the impugned order of recovery dated
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10.08.2018issued by the Assistant General Manager, Centralized Pension Processing Centre, State Bank of India, Patna.
The writ petition stands allowed to the aforesaid extent.
(Mohit Kumar Shah, J) S.Sb/-
AFR/NAFR CAV DATE 03.07.2019 Uploading Date 09.07.2019 Transmission Date