The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR W.P.(C) No.31071 of 2023 In the matter of an application under Article 226 and 227 of the Constitution of India. ……………… Smt. Binapani Patnaik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. D.K. Mohanty & A.K. Mohanty, Advocates For Opp. Parties :M/s. M.K. Balabantaray Additional Standing Counsel (for Opp. Party Nos.1 & 2) M/s. A.K. Nath, Adv. (for Opp. Party No.3 & 4) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 06.02.2024 and Date of Judgment : 06.02.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. This matter is taken up through Hybrid Arrangement(virtual/Physical) Mode. 2.
Legal Reasoning
Heard Mr. D.K. Mohanty, learned counsel appearing for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate along with Mr. A.K. Nath, learned counsel appearing for Opp. Party No.3. 3. The Petitioner has filed the present Writ Petition inter alia with the following prayer.
Decision
<It is therefore most humbly prayed that the Hon’ble Court may be graciously pleased to admit this writ petition, call for the relevant records and after hearing both the parties, to allow the Writ Petition to the extent that:- A. Hon’ble Court be pleased to quash the order of recovery dated 04.08.2020 (as per Annexure-2) of Director of Treasuries & Inspection, Odisha, Bhubaneswar for being illegal, irregular and not sustainablxe in the eye of law and to issue an appropriate writ(s), order(s) and/or direction(s), particularly a writ in the nature of mandamus commanding upon the respondent-authorities not to recover any amount from the family pension payable to the Petitioner herein towards so called excess payment made to her. (b) Hon’ble Court be further pleased to issue of an appropriate writ(s), order(s) and/or direction (s), particularly a writ in the nature of mandamus commanding upon the O.P. NO.4 to refund the amount already recovered from the saving bank account of the Petitioner to the tune of Rs.2,73,000/- from 01.12.2020 onwards from Petitioner’s family pension till the date of filing of this petition towards excess paid amount of pension.= 4. It is contended that Petitioner while in receipt of family pension, when without any notice, recovery was made basing on the communication issued by Opp. Party No.2 on 04.08.2020 under Annexure-2, Petitioner is before this Court challenging such action of Opp. Parties. Page 2 of 14 4.1. It is contended that basing on Annexure-2 and by the time the Writ Petition was filed Opp. Party-Bank had already recovered a sum of Rs.2,73,000/- out of the recoverable amount of Rs.8,83,141/-. Learned counsel for the Petitioner contended that since Petitioner was released with family pension w.e.f April, 2008 and she has received the amount so released by the bank, Petitioner is not liable to refund the excess payment, in view of the decision of the Hon’ble Apex Court in the case of State of Punjab Vs. Rafiq Masih so followed in the case of Thomas Daniel Vs. State of Kerala & Others. 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 the employer, “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 their made by entitlement. But 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: in excess of (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). Page 3 of 14 (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 equitable balance of the employer’s right to recover. It is not possible to postulate all <18. 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 employers, would be the 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 duteis 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 Page 4 of 14 the equitable balance of the employer’s right to recover.= 4.2. It is also contended by the learned counsel appearing for the Petitioner that similar issue has been decided by the High Court of Jharkhand in W.P.(S ) No.4661 of 2010. High Court of Jharkhand placing reliance on the decision in the case of Rafiq Masih held that no recovery can be effected from a pensioner, if he has been released with higher amount without fault of his own. View of the High Court in Para-20 of the judgment is reproduced hereunder. In my considered opinion, since “20. the Petitioner’s husband retired as an <Assistant= and the recovery is sought from the family pension, the judgment rendered by three Judges Bench of the Hon’ble Apex Court the case of Rafiq in Masih(supra) fully covers the present case where it has been held that no recovery should be made from the retired employees, or the employees who are due to retire within one year of the order of recovery and also not the employees belonging to Class-III and Class-IV service (or Group and Group D service)= to recover from 4.3. Learned counsel for the Petitioner also relied on an order passed by the High Court of Bombay at Aurangabad in its order dt.08.03.2017 passed in W.P.(C ) No.4610 of 2016 as well as the other decision by the High Court of Madras on 22.02.2018 in W.P.(C ) No.19611 of 2013. View of the High Court of Bombay in Para 5 of the Judgment dt.08.03.2017 and view of Page 5 of 14 the High Court of Madras in Para 8 & 9 of the Judgment dt.22.02.2028 are quoted hereunder. 5. We are not inclined to accept the contentions of the learned AGP. The Petitioner was a Class-III employee. After his retirement, his income certainly must have reduced to a considerable extent. If the mount of excess payment of pension made to him is ordered to be recovered at this stage, it would certainly put to him to a great hardship. In the case of State of Punjab and Others (supra), in paragraph 18, it is observed as under : 12. 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 here-in-above, 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 outweigh the employer’s right to recover.= the equitable balance of In view of the circumstances, referred to above and particularly, the circumstances referred to in Clauses (i) Page 6 of 14 and (ii) , the amount of excess payment of pension made to the Petitioner cannot be allowed to be recovered since such recovery would be iniquitous, arbitrary ad in violation of Article 14 of the Constitution of India. Consequently, Rule 134-A of the Rules, in the facts of the present case, would not come in the aid of the respondents in getting the excess payment of pension recovered form the Petitioner.= xxx xxx xxx xxx 8. Now, a question arises with regard to refund of the amount already made. It appears that in the similar facts and situation, this Court in the case of D. Susairaj (supra) placing reliance on a decision of the Apex Court in the case of Rqfiq Masih(supra) has also ordered refund of the same. Hence, this Court though unable to accept that the reduction of excss pension without prior notice to the Petitioner to be unsustainable inasmuch as the aforesaid cannot be said to be reduction of a pension, but release of the amount, to which the Petitioner was actually entitled to, of which she was given prior notice in the family pension order. But far as the recovery of excess pension released in favour of the Petitioner, the same cannot be sustained in view of the law laid down by the Apex Court in the case of Rafiq Masih(supra). Hence the order of recovery of pension is liable to be quashed, so also she is entitled to refund of the excess amount of pension recovered. 9. Accordingly, this Writ Petition stands allowed in part with the order of quashment of the order of recovery of the excess pension released in favour of the petitioner, communicated vide impugned order dated 02.05.2012 and also refund of the amount already recovered in her favour within a period of months from the date of receipt of a copy of this order, positively. Needles to say that if the aforesaid amount is not refunded within the time stipulated to the Petitioner, then the respondent is liable to pay interest at the rate of 9% per annum till the payment is made. The Writ Petitioner is also at liberty to approach this Court in an appropriate petition if the said amount is not paid. However, in the circumstances, there shall be no order as to costs.= 4.4. It is contended that High Court of Jharkhand as well as High Court of Bombay and Madras placing reliance on the decision in the case of Rafiq Masih held that no recovery can be made from a Pensioner, if the Page 7 of 14 Pensioner has been released with higher amount of pension. It is accordingly contended that in view of the decision in the case of Rafiq Masih so followed in the case of Thomas Daniel and the decision rendered by the High Court of Jharkhand, Bombay and Madras, no recovery can be effected from the family pension of the petitioner in terms of Annexure-2. It is accordingly contended that the recovery made from the Petitioner’s pension in terms of Annexure-2 is required to be interfered with by this Court. 5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. party No.2. 5.1. It is contended that Petitioner though was sanctioned with the family pension at a particular rate, but the bank wrongly released higher amount of family pension in favour of the Petitioner w.e.f April, 2008. When the said fact came to the knowledge of Opp. Party No.2, Annexure-2 was issued to the bank directing to recover Rs.8.83,141/- which has been paid in excess to the Petitioner w.e.f 28.10.2008. The Page 8 of 14 stand taken by Opp. Party No.2 in para-6 & 7 of the counter is reproduced hereunder. 6. That as authorized by the Controller of Accounts in the original Pension of Payment Order, the family pension at higher rate i.e. Rs.3349 per month shall be paid upto 27.10.2008 (i.e. age upto 65 years of the deceased pensioner) and then the family pension shall be paid at the normal rate i.e. Rs.2040/- per month from 28.10.2008 till death of the family pensioner. Copy of Pension Disbursh halves is annexed herewith and marked as Annexure-B/2. Subsequently, the amount have been revised based on 6th Pay and 7th Pay revision orders issued by Government in Finance Department as follows: Monthly family pension amount authorized As the by of Controller Accounts in the Pension Payment Order Revised as per 6th Pay revisioni Higher Rate Normal rate Rs.3349/-(upto 27.10.2008) Rs.2040/- (from 28.10.2008) Rs.7569/-(w.e.f 01.01.2006 27.10.2008) to Rs.4611/- (from 28.10.2008 to 31.12.2015) Revised as per 7th Pay revision Nil Rs.11851/- (w.e.f 01.01.2016) As per the instruction of Reserve Bank of India, Odisha, the Government in Finance Department vide Notification No.16277/F, dated 16.05.2018 decided to constitute a Treasury i.e. State Pension Treasury in the rank of Special Treasury to prepare the monthly accounts of pension paid by Public Sector Banks on behalf of State Government and to issue confirmation to Reserve Bank of India for reimbursement of the pension payment claims of different Public Sector Banks. The standard operating procedures to be adopted by State Pension Treasury for accounting has also been laid odwn vide O.M. No.11839/F, dated 31.03.2018 issued by Government in Finance Department. That procedure is also being adopted by all authorized Public Sector Banks for submission of their claims. Copy of Office Memorandum No.11839 Dated 31.03.2018 is annexed herewith and marked as Annexure-C/2. Page 9 of 14 7. That it is to mention here that Andhra Bank has been merged with Union Bank of India w.e.f 01.04.2020 and since then the State Penison Treasury is receiving the monthly payment scrolls/claims from the nominated Nodal Officer of Union Bank of India. State Pension Treasury conducted regular audit on test check basis in respect of the genuineness of the pension paid by authorized Public Sector Banks. In course of audit of the pension payment scrolls in respect of Andhra Bank, discrepancies in the quantum of monthly pension disbursed to Smt. Binapani Pattanaik were noticed as (i) The family pension was paid to Smt. Binapani Pattanaik in the higher rate i.e. Rs.7569/- w.e.f 28.10.2008 in place of normal rate ie.e. Rs.4611/- upto 31.12.2015 with T.I. (ii) Family pension was paid to Smt. Pattanaik in the higher rate i.e. Rs.19453/- + TI w.e.f 01.01.2016 (based on 7th CPC) in place of normal rate i.e. Rs.11851/- +TI. (iii) As ascertained by the Audit team, Rs.883141/- has been paid to Smt. Binapani Pattanaik as excess from State Exchequer till July, 2020 due to the above mistakes done at the level of Bank branch. Copy of details of calculation sheet prepared by Audit is annexed herewith and marked as Annexure- D/2.= Based on the internal audit report, the excess payment of Rs.883141/- paid to Smt. Binapani Pattanaik as ascertained by audit was intimated to the Bank vide No.8171/DTI, dated 04.08.2020 by Joint Director, Directorate of Treasuries & Inspection, Odisha with a request to verify at their level and to submit compliance by 10th August, 020. However, compliance has not been received till date from the bank.= 6. Mr. A.K. Nath, learned counsel appearing for the bank also made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.4. Page 10 of 14 6.1. It is contended that even though petitioner was sanctioned with family pension at a lower rate as reflected in Para-6 of the counter so filed by Opp. Party No.2, but the bank wrongly released higher amount w.e.f 28.10.2008. When the said fact was brought to the notice of the bank by Opp. Party No.2 vide his letter dt.04.08.2020 under Annexure-2, a sum of Rs.8,300/- was recovered from the monthly pension of the petitioner w.e.f August, 2020 till July, 2023. Pursuant to the interim order passed by this Court, no further recovery has been made after July, 2023. Learned counsel for the bank contended that since Petitioner was sanctioned with the family pension at the rate indicated in para 6 of the counter so filed by Opp. Party No.2, and the Petitioner was released with higher pension amount wrongly by the bank which is not disputed, no illegality is there on the part of the bank to recover the amount so paid in excess w.e.f 28.10.2008, as it is public money, which has been wrongly paid. 6.2. It is also contended that similar issue was issue before the High Court of Karnataka in W.P(C ) Page 11 of 14 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 in the 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 recovery of in equal monthly instalments of Rs.4,000/- (Rupees four thousand only) from the hands of the Petitioner. the amount 11. For the aforesaid reasons, I pass the following: O R D E R (i ) Writ Petition is allowed. to shall issue (ii) A mandamus the 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. Page 12 of 14 (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. Having heard learned counsel appearing for the parties and after going through the materials available on record, this Court finds that on the death of the Petitioner’s husband, she was sanctioned with the family pension with the rate as indicated in Para-6 of the counter so filed by Opp. Party No.2. Petitioner does not dispute the amount so sanctioned in her favour as indicated in Paragraphs-6 of the counter affidavit. 7.1. Since on the face of the amount sanctioned toward 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. Page 13 of 14 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. With the aforesaid observation and direction, the Writ Petition is disposed of. Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 15-Feb-2024 13:53:43 Orissa High Court, Cuttack Dated the 6th February, 2024/sangita (Biraja Prasanna Satapathy) Judge Page 14 of 14