Patna High Court
Hrishikesh Singh @ Rishikesh Singh vs The State Of Bihar on 19 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10873 of 2023
======================================================
Hrishikesh Singh @ Rishikesh Singh, Son of Late Kedar Nath Singh,
Resident of C-66 Birla Colony, Phulwarisharif, P.S Phulwarisharif, District-
Patna-801505.
... ... Petitioner/s
Versus
1. The State of Bihar represented through the Additional Chief Secretary,
Education Department, Government of Bihar, Patna
2. The District Education Officer, Patna.
3. The District Programme Officer (Establishment), Patna.
4. The Headmaster of High School, Amarpura, Naubatpur, District Patna,
Bihar.
5. Senior Treasury Officer, Treasury Office, Patna.
6. Indian Bank (earlier known as Allahabad Bank) through its General
Manager, Main Branch, Patna.
7. The Branch Manager, Indian Bank, Phulwarisharif Branch, Patna.
8. The Accountant General (A and E) Bihar, Veerchand Patel Path, Patna-
800001.
9. Reserve Bank of India, South Gandhi Maidan, Patna 800001, Bihar through
the Regional Director.
10. The Additional Chief Secretary, Finance Dept. Govt. of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Kumar Ravish, Advocate
Ms. Siddhi Aashana, Advocate
For the Respondent/s : Mr. Madan Jeet Kumar, GP- 20
For the Indian Bank : Mr. Dr. B. K. Jha, Advocate
For the R.B.I. : Mr. Rajesh Ranjan, Advocate
For the Accountant General: Mr. Prabhat Ranjan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 19-01-2024
This Court has heard Mr. Kumar Ravish, learned
counsel for the petitioner, Mr. Madan Jeet Kumar, learned GP-
20 for the State, Dr. B. K. Jha, learned counsel for Indian Bank
and Mr. Rajesh Ranjan, learned counsel for the Reserve Bank of
India.
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
2/19
2. The petitioner who was initially appointed as an
Assistant Teacher on 20.02.1970, after reaching the age of
superannuation, has retired from the service on 31.03.2006,
from the post of Assistant Teacher (TGT), High School,
Amarpura, Naubatpur, Patna, Bihar, has filed the present writ
petition for the following reliefs:
"a. To direct Respondents
particularly the Indian Bank i.e. the bank
responsible for paying pension to the
petitioner - to stop the recovery of Rs. Fifteen
Thousand or any other amount per month that
is being done from the month of May 2023
from the monthly pension amount/account of
the petitioner with the Indian Bank A/c No.
20956904920 as a result of which the
petitioner is getting a significantly reduced
pension.
b. To direct Indian Bank, the
pension paying Bank to refund the arrears of
recovered pension amount that has been
deducted / recovered from the pension amount
of the petitioner.
c. To restore the pension of the
petitioner as was being paid to him in July
2022 inasmuch as from August 2022 the
pension of the petitioner has been reduced.
d. To direct the respondents to
pay interest on the recovered amount at the
rate of 18% compound interest.
e. To direct the respondents and
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
3/19
the Pension Paying Authority i.e. Indian Bank
-to raise / restore the commuted pension
amount of the petitioner as the petitioner
retired from service on 31.03.2006 and since
then he has completed 15 years of receiving
(commuted) pension amount, hence he is
eligible to receive enhanced pension amount.
f. Any other relief or reliefs
which the petitioner may be found entitled to
in the facts and circumstances of the case.
3. It is submitted on behalf of the petitioner that
having been superannuated on 31.03.2006, the Treasury Officer,
Patna forwarded his pension payment order, bearing no. 434691,
issued by the Accountant General, Bihar to the respondent Bank
with advice to pay the pension to the petitioner in his Bank
Account No.20956904920 of Indian Bank, Phulwarisarif
Branch, Patna. Accordingly, as per the Pension Payment Order
(PPO), the petitioner was sanctioned his basic pension @ Rs.
8235/- per month and the respondent Bank, Phulwarisharif
started paying basic pension plus admissible D.A. Further, after
the implementation of the 6th Pay Revision Commission, as also
in the light of Resolution dated 23.09.2009, issued by the
Government of Bihar wherein instructions were given to revise
the pension of the eligible pensioner with effect from
01.01.2006
, the petitioner's pension was revised to Rs.18,815/-.
In view thereof, the petitioner was being paid revised pension of
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
Rs.18,815/- per month plus admissible D.A. till the
implementation of 7th Pay Commission. However, after
implementation of 7th Pay Commission, as per Resolution No.
381 dated 23.05.2017 of the Finance Department, Government
of Bihar, the pension of the petitioner was further revised to
Rs.48,355/- per month and, accordingly, the revised basic
pension of Rs.48,355/- + admissible D.A. was being paid to the
petitioner.
4. On 09.05.2022, the petitioner submitted a
detailed representation to the Treasury Officer, Patna for
restoration of his commuted portion of pension, as he has
already completed 15 years after his retirement and also
requested therein to advise respondent Bank to enhance the
pension. Accordingly, the Treasury Officer, Patna vide his letter
no. 866 dated 15.06.2022 send the representation of the
petitioner to the respondent Bank after due verification at their
end. In the light of the aforenoted letter of the Treasury Officer,
Patna, the Indian Bank, Phulwarisharif Branch, Patna made a
request to the Central Processing Centre (CPC) Indian Bank,
Head Office, Chennai to consider the petitioner's request for
addition of commuted pension of the petitioner.
5. While processing the petitioner's request for
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
restoration of commuted pension, the Head office of respondent
Bank at Chennai, CPC found that the petitioner was being paid
an excess amount of pension over his eligible pension. Thus,
they corrected his pension and started paying the corrected basic
pension amount of Rs.32,236/- plus DA thereon and other
payable allowances, which amounts to a total sum of
Rs.45,486/- per month. While restoring the commuted amount,
the respondent Bank calculated the excess paid amount of
Rs.22,99,673/- as on February, 2023 after adjustment of
commuted amount of pension.
6. It is submitted on behalf of the petitioner that
before the reduction, the petitioner was getting an amount of
Rs.62,466/- as a monthly pension. However, all of a sudden
without any intimation or any sort of any notice made to the
petitioner that his pension was going to be reduced, the
petitioner's pension was reduced to Rs.44,197/- in the month of
August, 2022, out of which Rs.32,236/- was paid as pension,
Rs.10,961/- as Dearness Relief and Rs.1,000/- as Medical/other
allowances, the total of which comes to Rs.44,197/-. The
petitioner on being apprised, whose pension was being reduced
to a significant amount to the tune of Rs.22,000/-, sent a letter to
the Branch Manager, Indian Bank, Phulwarisharif regarding
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
reduction in pension highlighting his inabilities and physical
disability as a senior citizen, but even after repeated request and
reminders his pension amount was not restored. Moreover, on
03.05.2023, the pension amount of the petitioner was further
reduced to a sum of Rs.31,776/-.
7. Being aggrieved by repeated deductions from his
pension amount, the petitioner sent another letter on 01.07.2023
to the Branch Manager, Indian Bank, Phulwarisharif, but to no
effect, thus the present writ petition.
8. Mr. Kumar Ravish, learned counsel representing
the petitioner while challenging the action of the respondent
Bank as well as the State authorities and the Accountant
General, Bihar submits that the pensions are not the nature of
reward, rather they are binding obligation on the Government,
which can be claimed as a right. The petitioner has also a right
to receive his pension and it cannot be forfeited or reduced after
17 years of retirement. Moreover, no sanctions were imposed on
the petitioner during his service period that would reduce his
pension amount, so arbitrarily reducing the petitioner's pension
amount after 17 years of retirement is not only bad in the eyes
of law, but also contrary to the rights of the petitioner. He
further submits that master servant relationship between the
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
petitioner and his employer ended way back in the year 2006
and that there cannot be any recovery from his pension amount
after such a long period of time, all the more he has never been
put to any notice regarding this sudden and arbitrary recovery of
pension and such unilateral decision is wholly without
jurisdiction. He next submitted that there is no fraud/
misrepresentation or foul from the side of the petitioner, yet the
drastic decision has been taken by the respondents to recover the
huge amount from the petitioner. Heavy reliance has been made
on the judgment rendered by the Apex Court in the case of State
of Punjab Vs. Rafiq Masih (White Washer) (2015) 4 SCC
334 and further on a subsequent judgment on the similar issue in
the case of Thomas Daniel Vs. State of Kerala and Ors,
reported in 2022 SCC OnLine 536.
9. Per contra, the respondent Bank by filing counter
affidavit and supplementary counter affidavit submitted that the
basic pension of the petitioner was wrongly fixed at the initial
stage by the Accountant General, Bihar, Patna as Rs.8325/-,
instead of Rs.5550/-, which clearly establishes that the
respondent Bank is not at fault, rather the mistake lies on the
part of the pension fixation authority. Further submission has
been made that as per Clause 14 of the Bihar Treasury Code,
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
2011, the Authority of the Treasury Officer, who examined that
the withdrawal of pay, pension, etc. by an agent on behalf of the
Government servant and pensioners is in accordance with the
instructions contained in Accounts General circular no. 135
dated 31.10.1940 and subsequent orders issued by him from
time to time. As Per Clause 15 of the said Code, the authority of
the Treasury Officer is personally responsible for any payment
of pension wrongly made. In case of the pension sanctioning
authority or the Treasury Officer did not forward any revision
order or any revised order to the Bank or any revised order or
any revised P.P.O. to the respondent Bank after notification of
implementation of 6th and 7th CPC, the respondent Bank would
have certainly avoided the discrepancies. Further submission
has been made that the respondent Bank discussed the entire
issue involved in the matter with the petitioner and his
representative in person and also sent a written communication
through a letter dated 15.05.2023 explaining the facts and
reasons for reduction in pension and also informed therein that
excess pension of Rs.22,99,673/- would be recoverable in an
installment of Rs.15,000/- per month till 2036. The respondent
Bank has also delivered the pension calculation sheet of the
pension paid and payable along with the excess paid amount to
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
the petitioner under his acknowledgment on 20.09.2023.
10. On the other hand, counter affidavit as well as
supplementary counter affidavit has been filed on behalf of
respondent no.3, the District Programme Officer
(Establishment), Patna stating therein that from the record it
appears that at the very initial stage when the petitioner retired
from service on 31/03.2006, the Accountant General, Bihar,
Patna has made a mistake while issuing the PPO in favour of the
petitioner and fixed his basic pension of Rs.8325/- per month,
whereas at that point of time, he was entitled to basic pension of
Rs.5550/- per month, because at the time of retirement, the
petitioner was getting the basic salary, which was Rs.11,000/-.
The mistake compoundly benefited to the petitioner at every
stage of pension fixation such as in the 6th Pay Revision and 7th
Pay Revision that is why the Treasury Officer, Patna vide his
letter no. 842 dated 16.09.2023 has confirmed to the Bank that
the initial pension of the petitioner after 6 th Pay Revision should
be Rs.12,543/-. In view thereof, he categorically submitted that
the PPO, which was issued as Rs.8325/- per month was wrong
and incorrect.
11. He further submitted that on account of the
aforesaid reason, the exchequer of the State Government has
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
been adversely affected and as such so far recovery of excess
paid amount is concerned, the Bank is competent authority to
act on account of Circular of the Reserve Bank of India after
due process. He lastly submitted that after fixation of pension
with regard to any employee, normally file has been closed with
respect to the employee and thereafter the matter has come in
between the pensioner and the respondent Bank.
12. It is to be noted that during the pendency of the
present writ petition, the petitioner has filed an interlocutory
application, bearing I.A. No. 1 of 2023 assailing the letter dated
15.05.2023 and 21.09.2023 issued by the Manager/Branch
Manager of the Indian Bank, Phulwarisharif Branch, Patna
under which a decision was purported to have been
communicated to the petitioner that his pension was wrongly
fixed from September, 2008 that was led to excess pension
payment of Rs.22,99,673/-, which is to be recovered to be
monthly installment of Rs.15,000/- per month, which will end in
February, 2036.
13. The respondent Bank while concluding his
submission has made reliance upon a judgment rendered by the
Apex Court in the case of High Court of Punjab & Haryana
& Ors, Vs. Jagdev Singh, reported in 2016 (4) PLJR (SC) 78.
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
14. This Court has meticulously perused the
materials available on record, as also given anxious
consideration to the submissions advanced on behalf of the
learned counsel appearing for the respective parties.
15. Before coming to the final conclusion, it would
be apt and proper to deal with the provisions, which regulates
the mechanism for recovery of excess pension payment made by
the Bank. From time to time, the Reserve Bank of India has
issued circulars providing for recovery of excess payment made
by the Bank and at present, the Reserve Bank of India vide
Circular dated 21.01.2021, while withdrawing its earlier
instruction issued vide Circular dated 17.03.2016, provided for
recovery of excess pension payment made by the Banks,
whereunder the deduction of excess pension paid to the
petitioner started from July, 2022, which circular governs the
case of the petitioner. The provisions of instructions further
consolidated in the Master Circular-Disbursement of
Government Pension by Agency/Banks dated 01.04.2022
prescribed the guidelines pertaining to refund of excess payment
to Government, which are also mentioned in para. 5 and 6 of the
aforementioned circular and read as under.
5. Whenever any excess/over
payment is deducted the entire amount
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
thereof should be credited to the
Government account in lump sum
immediately when the excess/overpayment
is due to an error on the part of the agency
bank. This action is independent of recovery
from the pensioner. Agency banks are
requested to seek guidance from respective
Pension Sanctioning Authorities regarding
the process to be followed for recovery of
excess pension paid to the petitioners, if any.
6. If the excess/wrong payment
to the pensioner is due to errors committed
by the Government, Bank may take up with
the matter with the full particulars of the
cases with respective Government
Department for a quick resolution of the
matter. However, this must be a time bound
exercise and the government authority's
acknowledgment to this effect must be kept
on the bank's record. The banks may take up
such cases with government departments
without reference to the Reserve Bank of
India."
16. Now coming to the materials available on
record, especially the affidavit filed on behalf of the Bank as
well as the District Programme Officer (Establishment), Patna,
one thing, which is evident is that at the very initial stage, when
the petitioner retired from service on 31.03.2006, the
Accountant General, Bihar, Patna has made a mistake while
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
issuing the P.P.O. to the petitioner by fixing his basic pension of
Rs.8325/- per month, whereas at that point of time, he was
entitled to the basic pension of Rs.5550/- per month, because at
the time of retirement the petitioner was getting the basic salary
only @ Rs.11,1000/-. Accordingly, the mistake compoundly
benefited to the instant petitioner for every stage of pension
fixation, till the petitioner filed his representation to the
Treasury Officer, Patna for restoration of his commuted portion
of pension, whereupon the matter has been referred to the
Central Processing Centre, Indian Bank, Head Office, Chennai
and it has been found that the petitioner was being paid excess
amount of pension.
17. It has been informed to this Court that the
aforesaid Master circular dated 01.04.2022, also contained the
aforesaid provisions, as noted hereinabove in para. 5 and 6 of
the circular.
18. Now coming to the case in hand, this Court in
the course of hearing vide its order dated 04.10.2023, while
granting interim order of stay of recovery has directed Regional
Director, Reserve Bank of India, South Gandhi Maidan, Patna to
look into the affairs of the Indian Bank, Puhlwarisharif Branch,
Patna and further take steps to proceed in accordance with the
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
provisions of Bank Regulation Act, 1934 and to furnish action
taken report with respect to present Bank and also direct the
disciplinary authority of the Bank to take action against the
officials of the Bank.
19. Having gone through the affidavit filed on
behalf of the respondent Reserve Bank of India, apart from
other irregularities, this Court, prima facie, in the matter of the
petitioner has found that the fitment factor has wrongly been
used by the Bank, resulting into excess pension payment order.
The Bank had initiated the recovery of excess pension amount
from the petitioner since July, 2022 without consulting the
Pension Sanctioning Authority, which is in contravention to
para. 5 of the RBI Master Circular on Disbursement of
Government Pension by Agency Banks dated 01.04.2022. It is
also informed to this Court that RBI has initiated follow up
action for the aforesaid irregularities committed by the
concerned branch of Indian Bank in accordance with the
provisions of the Agency Agreement entered with the Bank
under Section 45 of the Reserve Bank of India Act, 1934.
20. The error or the mistake, while issuing the PPO
by the office of Accountant General, Bihar, either based upon
the letter of the sanctioning authority or on account of own
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
mistake. The allegation and counter allegations are being made
by the concerned department or by the office of the Accountant
General, Bihar, but admittedly the mistake occurred by the
pension sanctioning authority or at the level of the Accountant
General Office, Bihar, which is not required to be adjudicated
by this Court. However, this is the fact that before the initiation
of process of recovery, there has never been any consultation of
the Bank with the Pension Sanctioning Authority and, as such, a
complete go-bye to the provisions of the guidelines, pertaining
to refund of excess pension payment as contained in Master
Circular-Disbursement of Government Pension by Agency/
Banks dated 01.04.2022 or the revised circular dated
03.04.2023.
21. Thus, this Court has no hesitation to hold and
declare that the entire process of recovery initiated by the Bank
is contrary to the guidelines, especially para. 5 of the R.B.I.
Master Circular dated 01.04.2022.
22. Now coming to the reliance on the judgment
rendered in the case of High Court of Punjab & Haryana &
Ors, Vs. Jagdev Singh, reported in 2016 (4) PLJR (SC) 78. It
is needless to observe that the same would not be applicable in
the facts of the present case, as the role of the respondent Bank
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
is only limited to the drawing and disbursing authority and there
is no relationship of employer and employee between the Bank
and the pensioner. Furthermore, this is not a case where excess
payment has been made on account of wrong calculation or
miscalculation on the part of the Bank, rather from the materials
available on record, it prima facie suggests that the initial
mistake was made either by the authority, who has issued the
pension payment order or the sanctioning authority and, as such,
any rectification, if any, is required to be done only with the
consultation of the sanctioning authority or the authority, who
had issued the Pension Payment Order in favour of the
petitioner.
23. Further, the reliance of the petitioner on the
judgment rendered by the Hon'ble Supreme Court in the case of
Rafiq Masih and Thomas Denial (supra) finds substance in the
facts of the present case. It would be apt to quote para 8 and 18
of the judgment rendered in the case of Rafiq Masih (supra),
which would certainly, in the opinion of this Court answer the
issue posed before this Court:
"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
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
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).
(ii) Recovery from the retired
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
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."
24. Further, the Hon'ble Supreme Court in the case
of Thomas Daniel (supra) after taking note of the earlier
judgments has held in clear terms that in case where the excess
payment was made due to a mistake on account of wrong
interpretation of rules, which was subsequently pointed out by
the Accountant General, Bihar after passage of 10 years of his
retirement is unjustified when the excess payment has not been
made on account of misrepresentation or the fraud.
Patna High Court CWJC No.10873 of 2023 dt.19-01-2024
25. In view of the aforesaid facts, circumstances
and the position obtaining in law, the present writ petition stands
allowed and the impugned orders, as contained in letters dated
05.05.2023 and 21.09.2023, issued by the Branch Manager,
Indian Bank, Phulwarisarif Branch, Patna, are hereby set aside
to the extent it relates to recovery of excess amount from the
pension of the petitioner. However, the respondents are at liberty
to make necessary correction(s) by re-fixation of the pension of
the petitioner in terms of the guidelines issued by the Reserve
Bank of India, as discussed hereinabove, after giving an
opportunity of hearing to the petitioner.
26. The present writ petition stands allowed with
the aforesaid observations and the liberty.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE 03.01.2024
Uploading Date 22.01.2024
Transmission Date NA
