Patna High Court
Rameshwar Ram vs The Union Of India on 5 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.288 of 2023
======================================================
Rameshwar Ram Son of Late Ram Sharan Ram Resident of Shanti Niketan
School Campus 3rd House, Jagat Narayan Road Kadam Kuan, P.S.- Kadan
Kuan, P.O.- Kadam Kuan, Town and District- Patna, Bihar PIN- 800003.
... ... Petitioner/s
Versus
1. The Union of India through Home Secretary, Government of India.
2. The Home Secretary, Ministry of Home, Union of India, North Block, New
Delhi, 110001.
3. The Director General, Border Security Force, FHQ, B.S.F. New Delhi
C.G.O. Complex Lodhi Road, New Delhi- 110003.
4. The Commandant 2nd Battalion, Border Security Force, Falia Bala Road,
Jalalabad, Fazilka (Punjab) PIN 152024, at present Commandant Take Head
Quarter 2nd B.N. B.S.F. Campus MV-3 Near R.T.O. Office Post Office-
Tamasa, District- Malkhangiri, State Orissa, Pin Code- 764045.
5. The Pay and Account Department Border Security Force, Pushpa Bhawan
2nd floor C. Wing, Madangir, New Delhi PIN- 110062.
6. The Branch Manager, State Bank of India, Kankarbag Branch Kankarbag,
Patna.
7. The Branch Manager, State Bank of India, Kadam Kuan Branch, Patna.
8. The Assistant General Manager, Centralized Pension Processing Center
Administrative Office Building, State Bank of India, 4th floor Judges Court
Road, Patna- 800001.
... ... Respondent/s
======================================================
With
Civil Writ Jurisdiction Case No. 4704 of 2023
======================================================
Ekbal Baitha S/o Late Nathuni Baitha, R/o Mohalla- Sahu Colony (Pathan
Toli), P.O.- Damodarpur, P.S.- Kanti, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through Additional Chief Secretary, Finance Department,
Govt. of Bihar, Old Secretariat, Patna.
2. The Principal Secretary, Department of Finance, Govt. of Bihar, Old
Secretariat, Patna.
3. The Commissioner Sales Tax, Govt. of Bihar, Patna Old Secretariat, Patna.
4. The Joint Commissioner (Audit) Sales Tax, Muzaffarpur Division,
Muzaffarpur.
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
2/19
5. The Accountant General (A and E), Bihar, Mahalekhakar Bhawan, Birchand
Patel Path, Patna.
6. The Chief Manager, Centralized Pension Processing Centre, State Bank of
India Judges Court Road, Patna (Bihar).
7. The Treasury Officer, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 288 of 2023)
For the Petitioner/s : Mr. Vishwa Mohan Kumar Sinha, Advocate
Mr. Debanjan Chowdhary, Advocate
For the Respondent No. 6 to 8 : Mr. Amit Shrivastava, Sr. Advocate
Mr. Apurv Harsh, Advocate
Ms. Almanya, Advocate
Mr. Raghu Raj Pratap, Advocate
For the Union of India : Mrs. Dr. Punam Kumar Singh, Advocate
(In Civil Writ Jurisdiction Case No. 4704 of 2023)
For the Petitioner/s : Mr. Manindra Kishore Singh, Advocate
For the Respondent/s : Mr. Sri Ram Krishna, AC to SC-11
For the Bank : Mr. Amit Shrivastava, Sr. Advocate
Mr. Apurv Harsh, Advocate
Mr. Raghu Raj Pratap, Advocate
Ms. Almanya, Advocate
For the A.G. : Mrs. Nivedita Nirvikar, Sr. Advocate
Ms. Supragya, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 05-01-2024
Heard the parties.
2. Considering the identical issue involved in both the
writ petitions, with consent of the parties, the same have been
heard together and are being disposed of by a common order.
However, the facts of both the cases are being noted separately
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
3/19
for easy reference.
Re.: CWJC No. 288 of 2023
3. The petitioner was initially appointed as Constable
in 3rd Battalion Manipur Rifles on 11.02.1967 and in the year
1968 his service was merged in Border Security Force named as
95 BSF Battalion. Having been promoted on different posts he
lastly promoted to the post of Inspector, BSF and
superannuated on 31.07.2004. After superannuation, his
necessary pension papers were forwarded to Payment and
Account Department (PAD), BSF for release of terminal
benefits and the petitioner's basic pension was fixed at Rs.
5520/- as per the Pension Payment Order issued by the office of
the Accountant General (A&E), Bihar, Patna. The pension of the
petitioner was subsequently revised @ Rs.8317/- with effect
from 01.01.2006 and after 6th and 7th Pay Revision,s lastly he
was getting monthly pension @ Rs.32064/- till August 2017.
However, all of a sudden his pension has been reduced to
Rs.14,472/- without any show cause notice or opportunity of
hearing. Being surprised, the petitioner enquired the matter from
his Bank whereupon he was informed that excess payment was
made to him and accordingly the same is being recovered from
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
4/19
his pension.
4. The petitioner thereupon filed an application under
Right to Information Act and also filed a representation before
the Commandant, 2nd Battalion, Border Security Force on
08.12.2017
for review of his pension according to 7 th Central
Pay Commission. In response to his application under Right to
Information Act, the respondent-Bank informed the petitioner
that due to miscalculation of the basic pension of the petitioner,
excess payment of Rs. 9,29,794/- has been paid to the petitioner,
hence same is recovered from the pension of the petitioner. On
the other hand, the Commandant 2nd Battalion, BSF by his letter
dated 16.12.2017 has informed that the pension of the petitioner
was duly revised @ Rs.32050/- and the same was sent to the
PAD, New Delhi vide letter No. 26573 dated 15.12.2017.
5. The petitioner on being aggrieved filed the present
writ petition seeking a direction upon the respondents,
especially the respondent-Bank to re-calculate the pension on
his basic pension at Rs. 32064/- in the light of the letter issued
by the Commandant, 2nd Battalion, BSF dated 16.12.2017 as
contained in Annexure-6 and stop the recovery of any amount
further from the pension of the petitioner and to return the
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
pensionary amount which was/is already recovered from the
petitioner by the Bank till date.
6. A separate counter affidavit has been filed on behalf
of the respondent-Union of India, submitting therein that the
petitioner having completed more than 37 years of qualifying
service proceeded for retirement from 2nd Battalion, Border
Security Force on 31.07.2004 with all admissible terminal
benefits. At the time of retirement, the petitioner was drawing
basic pay of Rs.7500/- in the pay scale of Rs.6500-200-10500.
After proper calculation, the basic pension of the petitioner was
fixed at Rs. 5520/- with dearness pay (Rs. 3680+DP @50% Rs.
1840) vide PPO dated 17.08.2004. After implementation of 6 th
Central Pay Commission the pension of the petitioner was fixed
@ Rs.8317/- per month w.e.f. 01.01.2006 and further on
implementation of 7th Central Pay Commission revised pension
of the petitioner was fixed @ Rs.23800/- w.e.f. 01.01.2016. It is
submitted that for revision of pension, the pensioner who retired
in the pay scale of Rs.6500-200-10500 or equivalent pay scale,
revised pension was fixed at Rs.24,500/- per month and thus the
revised pension was fixed at Rs.24,500/- to the petitioner.
However, in absence of essential documents regarding revision
of pension, the 2nd Battalion, BSF calculated suggestive revised
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
pension of the petitioner as per the available documents and
forwarded the same to PAD, BSF, New Delhi for revision of
pension of the petitioner but the same was not accepted and it
was correctly revised and thus the pension of the petitioner was
correctly revised @23800/- w.e.f. 01.01.2016.
7. In view of the aforesaid facts, the petitioner has
been accorded basic and revised pension as per his entitlement
and thus the claim of the petitioner for revision of his pension @
Rs.32064/- is found to be wrong.
8. A separate counter affidavit has been filed on behalf
of the respondent-Bank and categorical averments have been
made that the petitioner's basic pension was fixed at Rs.5520/-
as per the Pension Payment Order and all the post retiral
benefits have been calculated and given to him. The pension of
the petitioner has been revised from 5th and 6th CPC by the
system itself and the basic pension was revised from Rs.5,520 to
Rs.12,476/- as per the existing formula of revision and the
pension was being paid with basic of Rs.12,476/- and the
petitioner started receiving the enhanced pension.
9. It is further stated that in the general parlance as the
Bank adopts since revision order is delayed and revision is
undertaken for all the section of the pensioners, and in this case
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
the Bank has received the order of revision only on 06.02.2012
whereby the basic pension of the petitioner was revised
downward with retrospective effect from 01.01.2006 as per
revision order issued by the Central Pension Accounting Office.
The basis pension was reduced from Rs.12,476/- to Rs. 8,317/-
as per the 6th CPC whereas pension was being paid to the
petitioner with basic of Rs. 12,476/- resulting in accrual of
excess pension paid to the petitioner in excess of his eligibility.
10. It is further stated that duration of excess payment
in pension was from 01.01.2006 to 31.07.2016, therefore total
recovery of Rs.9,29,794/- on account of payment of excess
pension calculated and slated against the pension account of the
petitioner. It is further stated that the petitioner was duly
intimated and notice of recovery has already been sent to the
petitioner and further amount of deduction is within 1/3 rd limit
which is Rs.7007/- per month.
11. The petitioner was initially appointed as Joint
Commissioner (Audit) as on 13.01.1975 and after having
worked for more than 37 years he was superannuated from
service on 13.10.2013 after attaining the age of 60 years from
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
the post of Joint Director. Having been superannuated, the
Pension Payment Order was issued by the Accountant General
(A&E), Bihar, Patna to the Treasury Officer, Muzaffarpur fixing
the basic pension @ Rs.12355/- along with dearness and
medical allowance totalling Rs. 23575/- upto April 2019. The
pension of the petitioner was further revised w.e.f. 01.04.2017
as per 7th Pay Revision and accordingly the revised pension of
the petitioner was fixed as Rs.32,050/- and accordingly the
pension with admissible dearness allowance was started to be
paid through the State Bank of India, Red Cross Branch,
Muzaffarpur.
12. It is submitted that all of a sudden the respondent-
Bank started recovery of the amount of Rs.12,298/- w.e.f.
October 2019. The petitioner having come to know sought
information in this regard with the Branch Manager of
Centralized Pension Processing Centre (CPPC), State Bank of
India, thereupon a calculation chart was furnished to him
stipulating therein that since May 2014 to April 2019 excess
dearness allowance amount was paid with basic pension to the
petitioner which was later on ascertained and thus the total
recoverable amount of Rs. 7,83,834/- is being deducted @
Rs.12,298/- per month. The petitioner on being aggrieved by the
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
action of the respondent-Bank filed the present writ petition
seeking a direction upon the respondents concerned to stop the
recovery of alleged excess payment of dearness allowance on
the revised pension w.e.f. 01.04.2017 till 30.10.2019 against the
pension payment order issued by the Accountant General
(A&E), Bihar, Patna and further sought a direction to return the
amount which was/is already recovered from the account of the
petitioner.
13. Respective counter affidavits have been filed on
behalf of the State-respondent as well as the respondent-State
Bank of India. The stand of the State is that the pension of the
petitioner was revised in the light of the recommendation of 7th
Pay Revision Committee report w.e.f. 01.04.2017 and the
revised pension of the petitioner was fixed @ Rs.32,050/- per
month and admissible allowance was allowed by the Accountant
General, Bihar as per the the Finance Department, Government
of Bihar Resolution No. 755 dated 20.10.2017. It is submitted
that the calculation of pension and dearness allowance was done
by the Central Pension Processing Unit of the State Bank of
India, Patna and the amount of pension and dearness allowance
was paid by the State Bank of India as per their calculation in
pursuant to the authority slip of the Accountant General, Bihar,
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
the concerned respondent has not passed any order with respect
to the calculation of pension and dearness allowance of the
petitioner. Thus, the answering respondent has no concern and
is not accountable in the instant matter.
14. On the other hand, the respondent-State Bank of
India averred in its counter affidavit that the petitioner's basic
pension was fixed @ Rs.12355/- along with dearness allowance
on the basis of pension payment order issued by the Accountant
General(A&E), Bihar. It is submitted that while allowing the
dearness allowance to the basic pension, wrong amount has
been calculated due to which substantial increase took place in
his pension and the payments were being made to the petitioner
during 01.04.2017 to 30.04.2019, though as per the 6th Pay
Commission, the D.A. should have been reduced to 'zero' but
because of the fact that the petitioner was receiving the payment
as per the 5th Pay Commission till October 2019, he had
received an excess payment of Rs.7,83,834/- than the actual
amount of pension payable to the petitioner. It is lastly
submitted that the Bank corrected the anomaly and started
releasing the due amount of pension to which the petitioner is
entitled and is currently drawing a sum of Rs. 46511/- towards
pension, from which an amount of Rs.12,298/- is being set off
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
against the excess credit made earlier and for which demand has
been raised vide letter dated 25.09.2019 and consequently
Rs.34,213/- is being credited in the account of the petitioner by
the Bank.
CWJC No. 288 of 2023 with CWJC No. 4704 of 2023
15. While assailing the action of the respondent-Bank
making recovery of alleged excess payment, it is vehemently
contended on behalf of the petitioners that the action of the
respondent Bank is in complete violation of the principle of
natural justice, in as much as, at no point of time any notice to
show cause or opportunity of hearing has been given to the
petitioners and the decision to recover the alleged excess
amount from the pension was unilateral and against all the
canons of law. That apart, the action of the respondent was per
se in the teeth of the mandate of the settled legal proposition, as
propounded by the Apex Court in the case of State of Punjab
vs. Rafiq Masih (White Washer) [(2014) 8 SCC 883], and
further reliance has been made in the case of Thomas Daniel vs.
State of Kerala [2022 SCC OnLine SC 536]. It has lastly been
submitted that it is not the case of the respondents that the
petitioners have made any misrepresentation or they have
committed any fraud on the Bank or were anyhow found
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
instrumental in getting the enhanced pension in any manner, all
the more they have been getting enhanced pension since long
and as such any recovery at this belated stage from the pension
of the petitioners is quite iniquitous, harsh or arbitrary to such
an extent, as would far outweigh the equitable balance of the
employer's right to recover.
16. In response to the aforesaid submissions made on
behalf of the petitioners, Mr. Amit Shrivastava, learned senior
counsel representing the State Bank of India submitted across
the Board that the role of the Bank is limited only to the extent
of disbursement of pension on the basis of Pension Payment
Order issued by the Accountant General (A&E), Bihar, Patna
after getting sanction from the concerned Department. It is
submitted that the pensioner whose pension is paid by the Bank
under the scheme for payment of pension by Public Sector
Banks in consideration of the Bank having agreed at the request
of the pensioner to credit to Saving/Current Account in single
name of the pensioner, payable to him from time to time, as it
falls due, under the scheme for payment of civil pension by
Public Sector Banks, executes an undertaking to refund or make
good to the Bank any amount to which the pensioner is not
entitled or any excess amount which may be credited to the
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
account over that to which the pensioner would be entitled and
agrees that the amount, when demanded by the Bank and as due
and payable to the Bank shall be conclusive and binding on the
pensioner.
17. The pensioners also bound themselves and their
heirs, executors and administrators and agree and undertake to
indemnify the Bank from and against any loss, damage and
expenses suffered or incurred by the Bank in so crediting the
pension to the account of the pensioners under the scheme and
to forthwith pay the same to the bank and irrecoverably
authorise the bank to recover the amount in respect thereof by
debit to the account or any other deposit belonging to the hands
of the bank. After advancing the afore-noted submissions, he
drew the attention of this Court to the undertaking submitted on
behalf of the petitioners furnished before credit of pension in
their respective accounts.
18. Mr. Shrivastava, learned Sr. Advocate further
submitted that at the time of agreeing at his request to credit the
amount of pension payable had agreed that when demand is
raised by the State Bank of India he shall make good the amount
and thus the matter is squarely covered by the judgment of the
Hon'ble Apex Court in Chandi Prasad Uniyal Vs. State of
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
Uttarakhand reported in (2012) 8 SCC 417 where the Hon'ble
Apex Court has observed, especially at paragraph no. 14 thereof
that the excess money is the taxpayers money and does not
belong to officers who have affected payment and the recipient
and in such situations law implies an obligation on the payee to
repay the money or else it would amount to unjust enrichment.
Reliance has also been made on the judgment of the Apex Court
in the case of High Court of Punjab and Haryana Vs. Jagdeo
Singh reported in (2016) 14 SCC 267 where the Hon'ble Court
while considering the law as laid down in Rafiq Masih (supra)
has also postulated a principle that in case a person has given an
undertaking with effect that payment found in excess is required
to be refunded, is bound by that undertaking and therefore
action of recovery is totally justified.
19. He further made reliance on a Bench decision of
this Court in the case of Smt. Janaki Devi Vs. The State of
Bihar & Ors. (CWJC No. 14346 of 2019) and further
Bhuneshwar Prasad Singh Vs. The State of Bihar & Ors. and
Md. Yasin Ansari Vs. The State of Bihar & Ors.(CWJC Nos.
13085 of 2021 and 14025 of 2021), copies, whereof have been
put on record by Annexures F and G to the counter affidavit.
20. This Court has heard the learned counsel for the
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
respective parties and also examined the materials on record
meticulously. One thing it is admitted that the role of the
respondent Bank is only limited to the extent of drawing and
disbursing authority, who ensure payment of pension on the
basis of authority letter issued by the competent authority, i.e.,
the Accountant General (A&E), Bihar, Patna on being
sanctioned by the concerned Department/institution/authority
under which the employees had rendered their services. Thus,
there is no relationship of the employer and employee between
the Bank and the pensioner. That apart, the function of the Bank
is being regulated by the master circular(s) issued from time to
time by the higher authorities of the Bank empowering the Bank
to recover the excess amount, which is paid on account of
mistake or miscalculation, after giving proper demand notice.
21. After careful examination of the judgments
rendered by the Apex Court in the case of Sahib Ram Vs. The
State of Haryana [1995 supp (1) SCC 18]; Syed Abdul Kadir
Vs The State of Bihar [(2009) 3 SCC 475], Rafiq Masih (supra)
as also the Thomas Daniel (supra), it goes without saying that
the mandate of the Supreme Court not to recover the excess
amount is based upon equity, in case the excess payment was
not made on account of misrepresentation or fraud on the part of
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
the employee or 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 or where court arrives at the conclusion
that the 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.
22. Taking note of the aforenoted settled proposition of
law, this Court feels it apt and proper to quote paragraph nos. 13
and 14 of the judgment rendered in the case of Chandi Prasad
Uniyal (supra) where the learned Apex Court has observed as
follows:
"13. We are not convinced that this Court in
various judgments referred to hereinbefore has laid
down any proposition of law that only if the State
or its officials establish that there was
misrepresentation or fraud on the part of the
recipients of the excess pay, then only the amount
paid could be recovered. On the other hand, most
of the cases referred to hereinbefore turned on the
peculiar facts and circumstances of those cases
either because the recipients had retired or were on
the verge of retirement or were occupying lower
posts in the administrative hierarchy.
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
14. We are concerned with the excess payment of
public money which is often described as
"taxpayers' money" which belongs neither to the
officers who have effected overpayment nor to the
recipients. We fail to see why the concept of fraud
or misrepresentation is being brought in in such
situations. The question to be asked is whether
excess money has been paid or not, may be due to a
bona fide mistake. Possibly, effecting excess
payment of public money by the government
officers may be due to various reasons like
negligence, carelessness, collusion, favouritism,
etc., because money in such situation does not
belong to the payer or the payee. Situations may
also arise where both the payer and the payee are
at fault, then the mistake is mutual. Payments are
being effected in many situations without any
authority of law and payments have been received
by the recipients also without any authority of law.
Any amount paid/received without the authority of
law can always be recovered barring few
exceptions of extreme hardships but not as a matter
of right, in such situations law implies an
obligation on the payee to repay the money,
otherwise it would amount to unjust enrichment."
23. Further in the case in hand before making payment
of pension the petitioners were put to notice and the petitioners
had already furnished undertaking that they would refund the
excess amount paid and thus they are bound by the undertaking.
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
The aforesaid proposition has well explained and propounded
by a 3-Judge Bench of the Hon'ble Supreme Court in the case of
Jagdeo Singh (supra) wherein the Hon'ble Court taking note of
the earlier judgment rendered in the case of Rafiq Masih (supra)
has held that in case where officers to whom 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.
24. In view of the afore-noted settled legal position
and the fact that the petitioners have been accorded excess
payment on account of wrong calculation or miscalculation and
thus, in no stretch of imagination the same cannot be recovered,
otherwise certainly it would amount to unjust enrichment, for
which the petitioners are not legally entitled to receive. Any
person who receives an excess amount more than to his
entitlement owes a duty to repay the same as the amount is not
of the officer/department but of the common man/tax payer.
25. The opinion of this Court also strengthened by the
similar finding of the Co-ordinate Benches of this Court
wherein in identical matters the recovery at the level of the
Bank has not been interfered with by holding that it would be
Patna High Court CWJC No.288 of 2023 dt.05-01-2024
iniquitous to sustain the pensioner's plea to allow him/her to
retain the amount which was inadvertently deposited in his/her
account because of clerical errors at the time of making entries
in the pension system.
26. In view of the discussions made hereinabove, this
Court does not find any merit in the writ petitions and
accordingly both the writ petitions are dismissed.
(Harish Kumar, J)
Anjani/-
AFR/NAFR NAFR
CAV DATE 07.12.2023
Uploading Date 08.01.2024
Transmission Date N.A.
