Punjab-Haryana High Court
Shivani Joshi vs State Bank Of India And Another on 15 March, 2024
Neutral Citation No:=2024:PHHC:037864
CWP-12431-2022 1 2024:PHHC:037864
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
201 CWP-12431-2022
Date of Decision: 15.03.2024
SHIVANI JOSHI ...PETITIONER
Versus
STATE BANK OF INDIA AND ANOTHER --- RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Anupam Singla, Advocate
for the petitioner.
Mr. Nitin Kumar, Advocate
for respondent Nos. 1 and 2-SBI.
Mr. Karan Kumar Jund, Senior Panel Counsel
for respondent No. 3-UOI.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227
of the Constitution of India is seeking setting aside of order dated
09.01.2020 (Annexure P-1) whereby respondent has recovered a sum of
Rs. 1,79,121/- from the family pension of the petitioner.
2. The husband of the petitioner was working with Indian Navy.
He retired from Indian Navy on 31.07.2011 and as per applicable rules,
started getting pension from Government of India. The payment was made
through respondent-State Bank of India. The said employee passed away on
08.12.2019 and thereafter, the petitioner-wife of deceased employee started
getting family pension. The respondent after death of aforesaid employee
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came to know that bank had made excess payment of Rs. 1,79,121/- during
01.07.2014 to 30.11.2019. The respondent has recovered aforesaid amount
from the family pension of the petitioner.
3. Mr. Anupam Singla, counsel for the petitioner would submit
that respondent made alleged excess payment during the life time of
petitioner's husband and respondent cannot recover alleged amount from the
family pension.
4. Mr. Karan Kumar Jund, Senior Panel Counsel, submits that no
recovery of excess payment can be made from LRs of deceased employee.
5. Learned counsel for the respondent-bank asserts that a sum of
Rs. 1,79,121/- has been recovered from family pension.
Faced with statement made by learned counsel for the
respondents-UOI, Mr. Nitin Kumar, Advocate submits that deceased
employee had furnished undertaking and as per said undertaking, bank can
recover excess payment even from legal heirs.
6. The respondent-bank is claiming that they have right to recover
excess payment of pension from legal heirs of the deceased employee. This
Court in CWP No.4626 of 2019 involving similar issue has held that alleged
excess payment cannot be recovered from legal heirs of the deceased
employee.
7. Supreme Court in State of Punjab Vs. Rafiq Masih (White
Washer) etc 2015 (4) SCC 334 has laid down circumstances where no
recovery can be effected from an employee despite excess payment. The
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circumstances enumerated in the judgment are not conclusive. The
circumstances where the Court has categorically held that no recovery shall
be effected are reproduced as 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 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
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outweigh the equitable balance of the
employer's right to recover."
(emphasis supplied)
9. In the case in hand, the respondent-UOI has conceded that no
recovery can be effected from legal heirs of deceased employee, however,
bank is disputing on the ground that deceased employee had furnished
undertaking. The undertaking, if any, furnished by deceased employee was
binding upon him and in the absence of any statutory provision, it cannot
create liability of legal heirs.
The Supreme Court in Shabina Abraham and others vs.
Collector of Central Excise and Customs, (2015) 34 GSTR 146 has held
that even tax cannot be recovered from legal heirs of a proprietorship
concern if there is no statutory provision. An employee gets pension under
the statutory provisions. The right of pension has been recognised as
constitutional right in terms of Article 300-A of Constitution of India. It is
apt to notice that prior to omission of clause (f) of article 19(1) of the
Constitution of India, it was considered as fundamental right.
10. This Court everyday is getting similar cases where there is
excess payment on account of mistake on the part of bank. The employer i.e.
Union of India or State Government is not at fault whereas it is bank who is
at fault and claiming that excess payment has been made on account of its
mistake. There is no case wherein it has been found that mistake was on the
part of employee. In every case, there is mistake on the part of bank. The
bank has initiated recovery even from the widow. It ill behoves the banks.
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11. In the backdrop, this Court is of the considered opinion that the
present petition deserves to be allowed and accordingly allowed. The
respondent-bank shall re-credit the aforesaid amount within two months
from today.
(JAGMOHAN BANSAL)
JUDGE
15.03.2024
Anju
Whether speaking/reasoned Yes
Whether reportable Yes
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