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
With
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
With
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.
With
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.
With
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
With
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
With
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
With
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
With
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
With
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,
With
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
With
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
With
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
With
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
With
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
With
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.
