The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OA) NO.1713 of 2018 Baijayanti Das ..... Petitioner Mr. S.P.Pati, Adv. State of Odisha & Others ..... -versus- Opposite Parties Mr. M.K. Balabantaray, Addl. Govt. Advocate Mr. S.K. Das, Adv. (for Opp. Party No.4) Mr. S.K. Patra, Adv. (for O.P. No.3) CORAM: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No.2 ORDER 16.07.2024 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the letter issued by Opp. Party No.4 on 10.07.2018 under Annexure-5. Vide the said letter, Petitioner was intimated that since Petitioner for the period 25.09.2012 to 01.09.2017 was released with pension @ Rs.9,831/- per month in place of Rs.5899/-, after adjusting a sum of Rs.4,00,000/- which was available in the account of the Petitioner, Petitioner is liable to pay the balance excess payment of Rs.1,02,757/-. The bank vide the said letter also proposed to recover the amount of Rs.1,02,757/- in 24 . equal instalments starting from the month of July, 2018.
Legal Reasoning
W.P.(C ) No.31071 of 2023. This Court in para 6.2,7.1 & 7.2 of the judgment has held as follows: 6.2. It is also contended that similar issue was issue before the High Court of Karnataka in . W.P(C ) No.20321 of 2021. High Court of Karnatak taking into account the fact that Petitioner therein has been paid in excess, which is public money, directed for recovery of a sum of Rs.4,000/- per month from the family pension of the Petitioner. The stand taken by the High Court of Karnatak in Para 10 & 11 of the order dt.27.10.2022 is reproduced hereunder. “10. Pension, trite, not a bounty or a gratis that is granted to the Pensioner or the spouse of the Pensioner as a family pension, for the Bank to deal with it as its whim and fancy. It is to be noticed that the husband of the Petitioner is not an employee of the Bank. He has only his account in the bank. Pension is deposited rightly in the CPPC. The State Government has not paid any excess pension to the husband of the Petitioner. It is the irresponsibility of the Officers of the Bank, which has led to such over payment. Therefore, to generate a balance facts and circumstances becomes necessary. The amount that is deposited into the account of the husband of the Petitioner is neither the money belonging to the callous officers nor the money that belonged to the husband of the Petitioner. It is “public money”. Therefore, I deem it appropriate to permit in equal monthly recovery of instalments of Rs.4,000/- (Rupees four thousand only) from the hands of the Petitioner. the amount the in 11. For the aforesaid reasons, I pass the following:
Arguments
3.1. Learned counsel for the Petitioner contended that since Petitioner without having any fault of her own was released with the excess amount for the period from 25.09.2012 to 01.09.2017, no recovery can be made from the Petitioner and the recovery already made to the tune of Rs.4,00,000/- is not only illegal, but also further direction to recover the balance amount of Rs.1,02,757/- in 24 monthly equal instalments. It is accordingly contended that the direction issued in the impugned notice under Annexure-5 is not sustainable in the eye of law. 4. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that vide letter issued under Annexure-A to the counter, entitlement of the petitioner to receive family pension in the case of the death of the original petitioner was fixed at Rs.5899/-. It is contended that husband of the Petitioner died while in receipt of pension on 10.02.2010. Basing on the guideline governing the field , Petitioner was allowed to draw the original pension amount@ Rs.9831/- till 25.08.2012. But w.e.f 25.09.2012, petitioner became eligible to get family pension @Rs.5899/-. Since the Bank wrongly released pension @Rs.9831/- after 25.09.2012, the bank was issued with a notice with regard to such excess payment in favour of the petitioner vide letter dt.23.08.2018 under Annexure-E to the counter. . 4.1. It is contended that the basing on the letter so issued, the bank issued the impugned communication under Annexure-5. While adjusting a sum of Rs.4,00,000/- from the available balance, Petitioner was directed to refund the excess payment to the tune of Rs.1,02,757/- in 24 monthly instalment starting from July, 2018. 4.2. It is contended that since Petitioner w.e.f 25.09.2012 became eligible to receive monthly family pension of Rs.5899/- and in place of that she was released with pension @Rs.9831 for the period from 25.09.2012 to 01.09.2017, the bank adjusted a sum of Rs.4,00,000/- from out of the excess amount drawn by the petitioner to the tune amount of Rs.5,02,757/- and directed to recover the balance amount of Rs.1,02,757/- from the petitioner in 24 monthly equal instalments starting from July, 2018. It is contended that since Petitioner admittedly was paid in excess for the period from 25.09.2012 to 01.09.2017 to the tune of Rs.5,02,757/- petitioner is liable to refund the entire amount. 4.3. It is also contended that out of the recoverable amount, a sum of Rs.4,00,000/- has already been adjusted by the bank as reflected in Annexure-5 and further direction be issued to recover the balance amount of Rs. 01,02,757/- However, pursuant to the interim order passed by the Tribunal on 24.07.2017, no further recovery has been made. 5. To the submission made by the learned Addl. Govt. Advocate, learned counsel for the Petitioner contended that in view of the decision of the Hon’ble Apex Court in . the case of State of Punjab & Others Vs. Rafiq Masih ,AIR 2015 SC 696 so followed in the case of Thomas Daniel Vs. State of Kerala & Others, 2022 Live Law (SC) 438, Petitioner is not liable to pay the excess amount so received by her. Hon’ble Apex Court in Para 18 of the judgment in the case of Rafiq Masih and in Para-18 of the judgment in the case of Thomas Daniel has held as follows. xxx xxx xxx “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. But that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise few situations, following wherein recoveries by the employers, would be impermissible in law: the (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 . outweigh employer’s right to recover. the equitable balance of the “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 few situations, following wherein recoveries by the employers, would be impermissible in law: the (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 outweigh the employer’s right to recover.” the equitable balance of 6. To the submission made by the learned counsel for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate, brought to the notice of this Court the judgment passed in similar issue by this Court in
Decision
O R D E R (i ) Writ Petition is allowed. to shall issue the (ii) A mandamus respondent/Bank to re-credit the amount that is recovered i.e. Rs.6,40,000/- or whatever, from the account of the Petitioner, within two weeks from the date of receipt of a copy of this order and also pay appropriate pension without any deductions on this issue. (iii) The Bank is at liberty to recover Rs.4,000/- every month from the family pension of the Petitioner till the alleged excess amount deposited in the account of the husband of the Petitioner gets cleared.” 7.1. sanctioned Since on toward face of the the amount family pension, Petitioner . admittedly has received higher amount because of the fault committed by bank, this Court is of the view that the Petitioner is required to pay back the amount to the bank as it amounts to receipt of excess amount which was never sanctioned by the Government. The amount so received in excess by the Petitioner and indicated in Annexure-2 being public money, no illegality can be attributed to Opp. Party No.2 and 4 in recovering the excess payment. 7.2. In view of the same, this Court placing reliance on the decision of the Karnataka High Court as cited supra is not inclined to interfere with the request made by Opp. Party No.2 to recover the excess payment as indicated in Annexure-2. Taking into account the fact that a sum of Rs.2,73,000/- has already been recovered from the family pension of the petitioner, it is observed that the bank from this month onwards will recover a sum of Rs.1,000/- per month from the monthly pension of the Petitioner till the amount is so recovered or till Petitioner is alive, whichever is earlier. Learned counsel appearing for the Petitioner also fairly accept the view of this Court with regard to recovery of sum of Rs.1,000/- per month from the monthly pension of the petitioner from this month onwards. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that on the death of the original pensioner on 10.02.2010, petitioner as per the prevailing guideline was allowed to draw monthly pension @ Rs. 9831/- till 25.09.2012. But after 25.09.2012, Petitioner in view of Annexure-8 became entitled to receive monthly family pension of Rs.5899/-. 7.1. Since it is not disputed by the either of the parties that Petitioner has been paid in excess for the period from 25.09.2012 to 01.09.2017 @ 9831/-, this Court placing reliance on the order passed by this Court in W.P.(C ) No.31071 of 2023, finds no illegality or . irregularity with regard to the impugned communication issued under Annexure-5. However, considering the fact that Petitioner has been paid with the excess amount without any fault of her own, this Court directs the Bank to recover the balance recoverable amount of Rs.1,02,757/- in 48 monthly equal instalments starting from August, 2024. The Writ Petition is accordingly disposed of. Judge P.T.O ( BIRAJA PRASANNA SATAPATHY) sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 19-Jul-2024 19:07:11 .