Thakni Devi @ Thakani Devi vs The State Of Bihar
2022 Latest Caselaw 4876 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.19965 of 2021
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Thakni Devi @ Thakani Devi Wife of Late Keval Jha @ Kewal Jha, Resident of Village - Muraliyachak Bajraha, P.S.- Bisfi, District - Madhubani.

... ... Petitioner/s Versus

1. The State of Bihar through its Principal Secretary Home Department, Patna.

2. The Govt. of India through its Principal Secretary Home Department, New Delhi.

3. The Chief Manager Punjab National Bank Central Pension Processing Center 2nd Floor Maharaja Complex Near New Market, Patna.

4. The Regional Manager Punjab National Bank Darbhanga Zone, Darbhanga.

5. The Branch Manager Punjab National Bank of Belaunja Branch Madhubani namely Mr. Balbant Kumar.

6. The Principal Controller of Defence Accounts (Pension) Allahabad.

7. Ministry of Personel, Public Grievances and Pension department of Personal and Training New Delhi through its Secretary.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sanjeev Kumar Jha, Advocate. For the Respondent Bank: Mr. Mritunjay Kumar, Advocate.

: Mr. Ram Ganesh, Advocate.

Ms. Shilpi Singh, Advocate.

Mr. Vibhuti Kumar, Advocate.

For the Respondent/s : Dr. Mankeshwar Tiwari, AC to AAG 3. ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 07-12-2022 Heard Mr. Sanjeev Kumar Jha, learned counsel for the

petitioner, Mr. Mritunjay Kumar, learned counsel for the

respondent Punjab National Bank duly assisted by learned

counsels Mr. Ram Ganesh, Ms. Shilpi Singh, and Mr. Vibhuti Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

Kumar and Dr. Mankeshwar Tiwari, learned AC to AAG 3 for the

State.

2. The present writ application has been filed for the

following reliefs:-

"(i) For issuance of direction to the respondents concern to immediate start the proper family pension of the petitioner without making any delay after considering her age group as well as her disability.

(ii) For issuance of direction to the authority concerned to redeem the fixed deposited amounts of Rs. 3 lacs of the petitioner, deposited in the branch of respondent no.5 vide A/c No. 239800DP00010504, by the sons of petitioner for her maintenance, quickly for her interest.

(iii) For issuance of direction to the authorities to provide the entire benefit of family pension to the petitioner for which she is entitlement in accordance with law."

3. Shorn of unnecessary details, it is submitted that the

husband of the petitioner, namely, Kewal Jha, was appointed as 4 th

grade employee on 01.05.1965, under the Indian Military Engineer

Service and after serving for about 38 years, he superannuated

from the post of MATE of the Office of Military Engineer Service

Garrison Engineer Missamari of Sonetpot, District of Assam. He

further submits that after having found unblemished satisfactory

service no dues certificate was issued and he has been allowed the Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

monthly pension, which he was getting from Punjab National

Bank, Belaunja branch of District Madhubani, vide old PPO No.

DENG0194332002 and new PPO No. 403200202301, since the

date of his superannuation. He further submits that the husband of

the petitioner died on 23.04.2021 and thereupon the petitioner,

hapless widow of late Kewal Jha, submitted her application for

family pension. On receipt of the aforesaid application, necessary

papers, were asked for, and accordingly the petitioner submitted all

the requisite documents, including original Pass book, death

certificate etc., to the bank and on verification, her family pension

has been fixed @ Rs.9,000/- per month on 05.07.2021.

4. By the time the family pension of the petitioner could

be started, in the meantime the respondent no.5 came out with a

letter dated 24.08.2021 that the husband of the petitioner was paid

excess amount of Rs.4,44,713/-, since 01.07.2014 and a direction

has been given to recover the excess payment from the family

pension of the petitioner. Apart from the aforesaid order of

recovery the bank has also freezed the fixed deposit of an amount

of Rs.3,00,000/- which was kept in the account of the petitioner by

her son for her maintenance.

5. Basing upon the aforesaid facts the learned counsel

for the petitioner vehemently contended that the husband of the Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

petitioner superannuated way back on 30.04.2003 and died on

23.04.2021 but surprisingly enough at no point of time any show

cause notice or any cause has been served upon him with regard to

the excess fixation of a pension but all of a sudden after the sad

demise of late husband of the petitioner, the bank has came out

with a letter directing for recovery of the alleged excess payment

of an amount of Rs.4,44,713/-, which is not only unjustified,

arbitrary rather in the teeth of various judgment passed by the

Apex Court. He further contended that admittedly it is not the

stand of the Bank that the wrong fixation has been made on

account of fraud or misrepresentation on the part of the erstwhile

employee rather the same has been done at the level of concerned

Official/Bank respondents for which neither the erstwhile

employee nor the petitioner can be blamed in any manner.

6. Learned counsel for the petitioner also drawn the

attention of this court towards the office memorandum dated

02.03.2016 issued by the Government of India in the Department

of Personnel & Training, (as contained in Annexure-8 to the writ

petition) wherein after taking note of the judgment rendered by the

Hon'ble Supreme Court of India in the case of State of Punjab &

Ors. Vs. Rafiq Masih (White Washer) & others, a direction has

been given to all the concerned to ensure the mandate of the Apex Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

Court; Deprecating the actions of recovery from the class III and

IV employees, who have either due to superannuate within one

year or already superannuated and when the excess payment has

been made for the period in excess of five years before the order of

recovery was issued, apart from the other conditions.

7. On the other hand, a counter affidavit has been filed

on behalf of the bank and by referring to the statements made in

the counter affidavit, it is submitted that mistakenly excess

payment was made to the pensioner. He was retired from defence

service as civil employee and not as defence employee, and as

such the scheme of Government of India (one rank one pension)

was not applicable to the case of the petitioner, but he was wrongly

allowed pension in such scheme, hence excess payment made to

him was required to be recovered. He further relied upon the

judgment rendered by the Apex Court in the case of Chandi

Prasad Uniyal & others Vs. State of Uttarakhand & others,

since reported in 2012 (8) SCC 417 that any payment

paid/received without authority of law could always be recovered

barring few exception of extreme hardships but not as a matter of

right, in such situation law implied an obligation on payee to repay

money, otherwise it would amount to unjust enrichment. Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

8. He further submits that during the pendency of the

writ application the fix deposit amount of the petitioner has

already been defreezed by the concerned Bank authorities.

9. Having considered the submissions made on behalf of

the parties and the materials available on record, this court in its

considered view observe that time without number the Hon'ble

Supreme Court has deprecated the recovery form Class 3 rd and 4th

employees, who was either due to superannuate in a year or

already superannuated and where the recovery, if made from the

employee would be iniquitous, harsh or arbitrary to such an extent

as would far outweigh the equitable balance of the employee's

right to recover.

10. It is needless to say that this is not the case of the

bank that the husband of the petitioner had any way involved or

instrumental in getting the excess payment/pension on account of

wrong fixation of the pay. Any recovery after the death of a

pensioner, who is no more even survived to place any defence is

not only harsh, arbitrary but wholly without application of mind.

The action of the respondent authorities in passing any order of

recovery per se illegal and in the teeth of the order passed by the

Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs.

Rafiq Masih (White Washer) & others, reported in 2015 (4) Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

SCC 334, it would be apt and proper to quote paragraph nos. 8 and

18 of the said judgment which reads as follows:-

"8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

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).

Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

(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."

11. In view of the aforesaid facts and the settled legal

proposition of law, the impugned action of the recovery is per se

illegal, and as such the letter issued by the authority concerned

dated 24.08.2021 directing for recovery is hereby set aside. The

respondent bank authorities are directed to ensure the family

pension of the petitioner forthwith.

12. It is needless to say that the petitioner would also be

entitled to all the arrears of the family pension with effect from the

date when she became entitled. The entire exercise must be

completed within a period of four weeks from the date of

receipt/production of a copy of this order, failing which the Patna High Court CWJC No.19965 of 2021 dt.07-12-2022

petitioner would be entitled to get 12 per cent interest over the due

amount of family pension till actual payment is made and the same

would be recovered from the erring bank officials.

13. Accordingly, the writ application is hereby allowed

with the aforesaid direction.

(Harish Kumar, J) manoj/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          12.12.2022.
Transmission Date       NA