Ramjee Prasad vs The State Of Bihar
2022 Latest Caselaw 5330 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.23756 of 2019
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Meena Devi, Wife of Late Ramjee Prasad, Resident of Village Chak Hussain, P.O. + P.S.- Khusrupur, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Department of Education, Government of Bihar, Patna.

2. The Director, Primary Education, Bihar, Patna.

3. The District Education Officer, Patna.

4. The Assistant General Manager, State Bank of India, in the Office of Centralised Pension Processing Centre, Administrative Office Building, 4th Floor, J.C. Road, Patna.

5. The Branch Manager, State Bank of India, Khusrupur, Patna.

6. The Accountant General, Bihar, Patna.

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

For the Petitioner/s : Mrs. Pravina Kumari, Advocate For the Respondent/s : Mr. Kameshwar Kumar (GP-17) For the State Bank of India : Mr. Anjani Kumar Mishra, Advocate Mr. A. Bhardwaj, Advocate For the Accountant General: Mr. Dr. Anand Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 20-12-2022 Heard Mrs. Pravina Kumari, learned counsel for the

petitioner and the learned counsel for the respondents.

2. The husband of the petitioner, who was initially

appointed as Assistant Teacher on 02.08.1950 in Dayanand Boys

Middle School, Khusrupur, Patna and superannuated on

30.09.1991 had filed the present writ application seeking quashing

of the order dated 26.08.2019, passed by respondent no.4 whereby

the original petitioner was put to notice and a demand was raised Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

for restitution of the excess amount received and further sought a

direction for payment of pension, which has been stopped by the

Bank officials upon the sad demise of the pensioner. The petitioner

being the wife of the pensioner filed an interlocutory application,

bearing I.A. No. 01 of 2021, for substituting her in place of the

original petitioner, which interlocutory application stands allowed

by the order of this Court.

3. The relevant facts for consideration of the issue

involved in the present writ application is that on being

superannuated on 30.09.1991, the husband of the petitioner was

allowed pension with effect from 01.10.1991 at the rate of

Rs.160/- per month and lastly he was getting Rs.4750/- per month

from April, 2014 to June 2018 without D.A. and Medical

allowance. The original petitioner had filed writ petition, bearing

C.W.J.C. No. 16620 of 2016, for revision of pension/enhancement

of pension by giving due consideration of old age benefit having

possess 80-85 years age in view of the Government policy

decision and sought a direction to pay the arrears of the same from

the date of entitlement. The aforesaid writ petition was duly

considered by this Court and having found that the original

petitioner had retired at the age of 62 years and he was under the

Triple Benefit Scheme (hereinafter referred to as 'TBS') and,

therefore, in his case, there was no provision of grant of family Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

pension to his wife. So far the non-payment of Dearness

Allowance is concerned, a counter affidavit was filed by the State

Bank of India, which clearly explained that there is minimum

interest and the pension has been paid to the petitioner and,

therefore, the dearness allowance has been merged in his minimum

basic pension. The Court having found no merit in the writ

application, dismissed the same vide order dated 17.07.2019, as

contained in Annexure-2 to the writ petition.

4. The petitioner on being aggrieved, preferred L.P.A.

No. 1136 of 2019, which also stood dismissed on being found no

infirmity or error in the order passed by the learned Single Judge.

5. It would be apt and proper to state here that the

original petitioner was the beneficiary of retiral benefits under the

TBS and according to this scheme the employees is only entitled

for three benefits i.e. Employees Provident Fund, Life Insurance

and Pension. There is no provision for payment of family pension,

as such, the wife of the employee is not entitled for family pension

and the same was not sanctioned by the Accountant General and

the office of the Accountant General had authorized pension

having PPO No. 15155/TBS as per Triple Benefit Scheme in

favour of late employee.

6. In the earlier round of litigation counter affidavit was

filed on behalf of the Accountant General, Bihar, Patna. In the said Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

counter affidavit it was submitted that there is no order of Finance

Department/ Primary Education Department for revision of

pension under TBS scheme like the general pensioner. It was also

submitted that in terms of letter no. 2701 dated 03.12.1996,

pension revision order issued in favour of the retired government

servant time to time is not admissible to the pensioner under triple

benefit scheme, hence the rate of pension under 5th, 6th and 7th pay

commission has not been changed by the Government of Bihar.

7. In the light of the aforesaid stand of the Accountant

General, Bihar, Patna, the respondent Bank vide impugned letter

no. 89/2019-20 dated 26.08.2019 raised a demand for restitution of

excess amount from the pensioner and the petitioner being

aggrieved filed the present writ application.

8. A counter affidavit has also been filed on behalf of the

respondent Bank justifying the impugned letter and submitted that

the pensioner was not entitled to get enhanced pension under 5 th,

6th and 7th CPC and he was erroneously paid the excess enhanced

pension, as no separate category of TBS was available in the

pension processing software and the system paid the enhanced

pension, as applicable to other State government pensioners, who

are entitled to pension revision. He further submits that a

pensioner undertakes through an undertaking to refund or make

good any amount to which he was not entitled and also authorizes Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

the Bank to realise the amount to which he is not entitled. He also

relied upon the judgment rendered by the Hon'ble Supreme Court

in the case of High Court Punjab and Haryana and others Vs.

Jagdev Singh, reported in (2016) 14 SCC 267 and submits that

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.

9. In response to the aforesaid submission, learned

counsel for the petitioner vehemently submits that so far the

recovery from the pensionery benefit is concerned, the issue has

already stands settled by the catena of judgments rendered by the

Apex Court. She further submits that in any case, the petitioner is

entitled to the pensionary benefit till her husband died on

26.12.2020.

10. This Court heard the parties at length and considered

the materials available on record. So far the issue with regard to

recovery of pensionery benefit is concerned, the same has dealt

with in many of the cases by this Hon'ble Court as well as Hon'ble

Supreme Court on number of occasions by various judgments held

that no recovery of excess payment can be made in absence of any

misrepresentation. Reliance may be taken note of the judgment Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

rendered in the case of Syed Abdul Qadir and others Vs. The

State of Bihar and Others, since reported in (2009) 3 SCC 475 as

well as the State of Punjab & Others Vs. Rafiq Masih (White

Washer), reported in (2015) 4 SCC 334.

11. For proper appreciation of the issue in question, it

would be apt and proper to quote para 27 and 28 of the judgment

rendered by the Hon'ble Supreme Court in the case of Syed

Abdul Qadir (supra).

27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma vs. Union of India, [1994] 2 SCC 521; Union of India vs. M. Bhaskar, [1996] 4 SCC 416; V. Ganga Ram vs. Regional Jt., Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors. (2006) 11 SCC 709; Purshottam Lal Das & Ors., vs. State of Bihar, [2006] 11 SCC 492; Punjab National Bank & Ors. Vs. Manjeet Singh & Anr., [2006] 8 SCC 647; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., [2000] 10 SCC 99.

28. Undoubtedly, the excess amount that has been paid to the appellants- teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants- teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants- teachers, we are of the view that no recovery of the Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

amount that has been paid in excess to the appellants- teachers should be made."

12. Further, the Hon'ble Supreme Court in the case of

State of Punjab & Others Vs. Rafiq Masih (White Washer),

reported in (2015) 4 SCC 334 dealing with the similar issue

relating to recovery of amount paid in excess without fault of

recipient, after his superannuation, has been pleased to hold that

"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 concerned employee. If the effect of the recovery

from the concerned employee 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."

13. The Hon'ble Supreme while parting with the

judgment has been pleased to postulate certain situations of Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

hardship wherein recovery by the employees would be

impermissible in law. For the proper appreciation, para. 18

whereof is quoted herein below:

"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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group '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."

Patna High Court CWJC No.23756 of 2019 dt.20-12-2022

14. It would also be proper to observe that as the

original petitioner has already died on 26.12.2020 and it is well

settled that after the death of Government servant recovery is only

permissible by getting a decree of competent jurisdiction else it is

violative of principles of natural justice and fair play because it is

not possible for the widow of the deceased employee to dispute

such recovery on merit for want of proper opportunity. Reliance

may be taken of the judgment passed by a learned coordinate

Bench of this Court in the case of Smt. Indu Devi Vs. State of

Bihar and others, since reported in 2004 (1) PLJR 162.

15. In view of the aforesaid settled proposition of law,

the impugned order of recovery is not sustainable and the same is

fit to be quashed. It is also made clear that the petitioner would

also be entitled to the arrears of pension, as her husband was

getting, till the date her husband died, i.e. on 26.12.2020.

16. Accordingly, the writ application stands allowed.

(Harish Kumar, J) uday/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          22.12.2022
Transmission Date       NA