Shakuntala Sharma v. Jharkhand Urja Utpaadan Nigam Limited

09/ 05.07.2024 Heard the parties. ----------- : : Mr. Prabhat Singh, Advocate Mr. Ashok Kumar Yadav, Sr. SC-I Mr. Ranjan Kumar, AC to Sr. SC-I ----------

2. Petitioner has approached this Court for quashing/setting aside of the letter No.704/Ranchi dated 17.07.2023 (Annexure-2) issued by the respondent No.5, whereby and whereunder the said respondent without issuance of notice upon the petitioner has directed the banker of petitioner to put on hold an amount to the tune of Rs.11,09,468/- being excess paid amount towards family pension.

3. The husband of the petitioner died in harness on 24.03.2008 working as Assistant Executive engineer at Patratu Thermal Power Station (PTPS). Petitioner is husband of late Raghav Sharma was an employee of the respondents and had subscribed to Family Pension Scheme and accordingly deductions were made towards the employee’s contribution for pension fund. After death of her husband, petitioner represented for grant of family pension and pursuant to order of Director of Accounts, the then Jharkhand 1 State Electricity Board, Ranchi, Pension Payment Order (PPO) was issued to the tune of Rs.6825/- with other admissible allowance with effect from

25.03.2008 to 24.03.2015. Thereafter Rs.4095/- with other admissible allowances was payable with effect from 25.03.2015 till her death or remarriage. Accordingly, the petitioner started receiving family pension as per the PPO. Since petitioner is a rustic lady, she was not aware of her actual entitlement. The family pension was transferred in her bank account, when the same was updated in April, 2023, it was found that the amount of Rs.24,500/- was only transferred to her bank account which was less than her actual entitlement of family pension. Petitioner having came to know about the lesser amount she approached the authorities where she was informed that due to technical error excess family pension has been paid to her to the tune of RS.11,09,468/-. Thereafter a direction was given to the Bank to hold the amount of Rs.11,09,468/- and on the information given to the Bank, the amount was put on hold.

4. Learned counsel for the petitioner submits that widow has been harassed and dragged to this Court by the respondents. A direction has been issued for withdrawing the amount of Rs.11,09,468/- from her family pension. Learned counsel further submits that without any notice and information, the said amount has been ordered to be recovered which is not tenable in the eyes of law. Learned counsel further submits that right from 2023 her pensionary benefits which was paid to her has been reduced and the amount of Rs.11,09,468/- has been put on hold and as such a direction be given to the respondents to release the pensionary benefits which she was getting by way of family pension and not to recover any amount. Learned counsel for the petitioner places heavy reliance on the judgment of Hon’ble Apex Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334. Learned counsel further submits that there was no misrepresentation or fraud on the part of the petitioner.

5. On the other hand, learned counsel for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that admittedly the petitioner was paid excess amount to the tune of Rs.11,09,468/- inadvertently due to mistake on the part of the respondents. 2 Learned counsel further submits that the mistake was detected in the year 2023 and thereafter reduction was made in the family pension and the excess amount of Rs.11,09,468/- which was paid to her was ordered to be recovered. Learned counsel further submits that there is no illegality or infirmity in the order, since the petitioner was not entitled for family pension of Rs.40,650/- and her entitlement was only Rs.24,390/- per month. The recovery was started with a lesser amount of Rs.4000/- per month and the family pensioner was informed on telephone regarding recovery of the excess amount paid. Learned counsel for the respondent-State places heavy reliance on the judgment of Hon’ble Apex Court in the case of State of Punjab & Ors. Vs. Refiq Masih (Whitewasher) reported in (2014) 8 SCC 883.

6. Having gone through the rival submissions of the parties, across the bar and from perusal of the documents brought on record and the relevant judgments cited, this Court is of the view that case of the petitioner needs consideration on the following grounds. (i) Admittedly, petitioner was entitled for family pension which she was getting right after the death of her husband till 2023. (ii)The amount of pension was reduced from Rs.40,650/- to Rs.24,390/- without any notice to the petitioner. (iii) The respondents have admitted that a telephonic message was given regarding recovery and reduction of the family pension. From the records, it appears that save and except the internal communication between the Sr. Manager (F & A) and the Branch Manager for recovery of the amount which is at Annexure-3 page-62 of the counter-affidavit nothing was done. Nothing is reflected that prior to reduction or recovery, the petitioner was put to notice. The law is well settled, the Hon’ble Supreme Court in the case of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334, it has clearly observed that recovery by the employer would be impermissible in law in certain circumstance. It is also not dispute that amount paid to the petitioner was in excess and the issue arises whether even if it has been found that amount has been paid in excess whether any rectification can be made after retirement. 3 The issue fail for consideration before the Hon’ble Apex Court in case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh reported in (2016) 14 SCC 267 wherein at para-11 it was held as under:-

11.The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, 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. Further Hon’ble Apex Court in case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarkhand & Ors. reported in (2012) 8 SCC 417 at para-14 has held as under:-

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 whether 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 on obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. In the instant case admittedly petitioner was never put on notice before passing the order of recovery and in view of observations made in the case of High Court of Punjab & Haryana & Ors. Vs. Jagdev Singh (supra) it was requirement of law is that before the order of recovery is passed the employee should be put on notice.

7. The respondents are at liberty to fix the family pension as per the actual entitlement of the petitioner after making suitable rectification if any wrong has been done on the part of the respondents the same can be subject to rectification. As far as recovery is concerned, since the petitioner was 4 never put on notice the amount cannot be recovered from her. Petitioner is entitled for family pension to the tune of Rs.24,390/- from date of rectification as per due and the excess amount already paid to her shall not be recovered.

8. Accordingly, the instant writ petition stands allowed to the aforesaid extent.

9. I.A. No.575 of 2024 and 3306 of 2024 stand closed. Rohit/- (Dr. S.N. Pathak, J.) 5