Jharna Chakraborty vs State Bank Of India & Ors
2022 Latest Caselaw 8130 Cal

                     IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                     Appellate Side


Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                                W.P.A 18830 of 2022

                                 Jharna Chakraborty

                                          Vs.

                              State Bank of India & Ors.



For the petitioner                           :     Mr. Sanjib Bandyopadhyay, Adv.
                                                   Mr. Manoj Kumar Mondal, Adv.
                                                   Mr. Biswajit Dutta, Adv.


For the respondent nos. 1, 3,4 & 5           :     Mr. Surajit Auddy, Adv.
                                                   Ms. Swapnalekha Auddy, Adv.
                                                   Ms. Moumita Mondal, Adv.


For the respondent no. 2.                   :      Mr. Sourav Mondal, Adv.
                                                   Mr. Chandan Bhaduri, Adv.


Last Heard on                               :      01.12.2022


Delivered on                                :      08.12.2022.
                                           2


Moushumi Bhattacharya, J.

1. The petitioner is the widow of an employee who worked under the

Government of West Bengal at the time of retirement. The petitioner's husband

retired from service on 30.6.2000 and drew a pension of Rs. 2,480/- month from

the date of retirement. The petitioner's husband died on 13.10.2002 after which the

petitioner informed the Asst. General Manager of the State Bank of India (SBI)

about the death of her husband and requested to start family pension in favour of

the petitioner. The petitioner was provided with family pension vide Pension

Payment Order (PPO) which is part of the records. The petitioner got family pension

from 2002 to December, 2021. The family pension was however stopped from

January, 2022. The petitioner contacted the respondent bank, SBI pursuant

whereto the petitioner, according to the learned counsel appearing for the

petitioner, was compelled to sign an undertaking on 29.1.2022 declaring that the

petitioner authorises the Bank to recover any amount paid to the petitioner which

the petitioner is not entitled to.

2. The petitioner claims that the petitioner was not put on notice of the sudden

stoppage of the family pension from January, 2022 and was not informed of the

reason for the same.

3. The petitioner has challenged two impugned letters of SBI dated 15.2.2022

and 18.5.2022 respectively. By the said letters, the petitioner was informed that the

petitioner was paid excess pension of Rs. 9,71,184/- on account of wrong reflection

of the basic pay of the petitioner's deceased husband. The petitioner was

accordingly told that the Bank would recover the excess amount from the petitioner.

In both these letters, the SBI admits to an error in calculation on its part. The

petitioner seeks quashing of both the letters and for a direction on SBI to pay the

family pension due to the petitioner from January, 2022 without any deduction.

4. Learned counsel appearing for the petitioner relies on State of Punjab vs.

Rafiq Masih (White Washer); (2015) 4 SCC 334 wherein the Supreme Court held

certain instances of recovery by employers to be impermissible in law (Paragraph 18

of the Report). Counsel also relies on a recent decision of the Supreme Court

pronounced on 2.5.2022 in Thomas Daniel vs. State of Kerala, Civil Appeal No. 7115

of 2010 which followed the dictum in Rafiq Masih. Counsel submits that SBI

discovered its mistake in calculation of the amounts disbursed to the petitioner

after more than 15 years from the date on which the petitioner was allowed the

disputed quantum of family pension.

5. Learned counsel appearing for SBI relies on several decisions to buttress the

Bank's right to recover the excess amount paid to the petitioner. Foremost among

these decisions are Chandi Prasad Uniyal vs. State of Uttarakhand; (2012) 8 SCC

417 and High Court of Punjab and Haryana vs. Jagdev Singh; (2016) 14 SCC 267.

Counsel also relies on decisions of Co-ordinate Benches including in Sri Biswabrata

Basu vs. State Bank of India, W.P. No. 29901(W) of 2015.

6. The point for adjudication in the present writ petition is whether the

respondent State Bank of India can recover the excess payment made to the

petitioner on account of family pension by reason of an admitted error on the part

of SBI. Notably, SBI was not the employer of the petitioner's deceased husband but

is the disbursing authority of the family pension. Paragraph 18 of Rafiq Masih

makes it clear that the situations of hardship where recovery would not be

permissible in law were restricted between the employer and the employee. This was

also the case in Thomas Daniel where the employer was the Accountant General of

the State of Kerala and the Supreme Court accordingly followed Rafiq Masih in

holding that the recovery of the amount could not be made particularly after 10

years from the date of retirement of the petitioner before the Supreme Court.

7. The issue is hence whether SBI, as the disbursing authority of the family

pension, can be brought within the fold of Rafiq Masih barring recovery from a

retired or soon-to-retire employee who falls within the categories mentioned in

paragraph 18 of the Report. It is of relevance to point out that a Co-ordinate Bench

in its order dated 7.7.2022 in Smt. Renuka Sarkar vs. State of West Bengal, W.P.A.

10545 of 2020 noted the decisions both in favour and against recovery of excess

amount by the Bank. The facts in Renuka Sarkar also involved a letter issued by the

Asst. General Manager, State Bank of India, to the petitioner informing the latter

that an excess sum was paid to the petitioner part of which had already been

recovered. The learned Judge referred the issue to a larger Bench upon finding

conflicting decisions on the subject.

8. This Court also notes the decisions passed by Co-ordinate Benches both in

favour of recovery and against by the disbursing bank. Under the circumstances,

this Court deems it fit to refer the issue to a larger Bench for a decision on the

subject. The issue accordingly is :

Whether a Bank, being the disbursing authority of pension to a retired employee or his

family member, can be brought within the fold of the Supreme Court decision in State of

Punjab vs. Rafiq Masih (White Washer); (2015) 4 SCC 334, more specifically under

Paragraph 18 of the decision?

8. The balance of convenience in the facts before the Court cannot however be

ignored. The State Bank of India has continued to pay family pension to the

petitioner from 2002 - December 2021 that is almost for 20 years at the accepted

rate before the impugned letters were issued to the petitioner. The petitioner was

made to sign an undertaking for the first time on 29.1.2022 i.e. again after 20 years

from the date on which the petitioner was paid family pension. The first impugned

letter was issued within a month from the undertaking given by the petitioner. The

Bank has unequivocally admitted to its error in calculating the basic pay in both

the impugned letters. Hence, this Court finds no tenable basis for the Bank to

discontinue the family pension of the petitioner from January, 2022. This act is

clearly arbitrary and retaliatory. The petitioner has remained deprived of her family

pension for almost a year from January, 2022 till date.

9. Hence, until the issue, as framed, is decided by a larger Bench constituted by

the Hon'ble the Chief Justice of this Court, the SBI shall pay family pension to the

petitioner at the rate calculated by SBI every month as was done from October,

2002 till December, 2021. The deducted amount shall be deposited by SBI every

month to the Registrar General of this Court which shall be kept in a separate

account preferably in an interest bearing account in a reputed Bank. The SBI shall

pay the arrear pension from January, 2022 till December, 2022 at the rate

calculated by it to the petitioner within 2 weeks from the date of this judgment. The

amount deposited will be disbursed in favour of the party who succeeds before the

larger Bench.

10. Let the record of this writ petition along with copies of the judgments relied

on by counsel appearing for the parties be placed before the Hon'ble the Chief

Justice for constitution of a larger Bench for examination of the issue as formulated

above.

Urgent Photostat certified copies of this judgment, if applied for, be supplied

to the respective parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)