JUDGMENT : Dr. D.P. Choudhury, J. Challenge has been made to the illegal action of the opposite parties in withdrawing the gratuity amount from the savings bank account of the petitioner without following the principles of natural justice. FACTS 2. The unshorn details of the case of the petitioner is that the present petitioner is the widow of late R. Nagaraju, who was working as a Helper under the Executive Engineer (Electrical), Phulbani Electrical Division, Phulbani, opposite party no.5 with effect from 1.1.1981. The late husband of the petitioner while working as a Line-man in an electric pole, on 28.5.2010 got electric shock causing burn injuries to his body and while he was under treatment, he died on 29.5.2010. Thereafter, W.C. Case No.48 of 2011 was filed by the legal heirs of the deceased R.Nagaraju before the Commissioner for Employees’ Compensation, Berhampur (hereinafter called as “the Commission”) and the Commission vide its order dated 30.6.2012 awarded compensation of Rs.6,04,250/-. Being aggrieved by the said award, the Department preferred FAO No.424 of 2012 before this Court and this Court vide its order dated 23.8.2013 modified the award to the tune of Rs.3,02,125/- along with interest. After the death of the late husband of the present petitioner, the opposite party no.5 also sanctioned the provisional pension in her favour on 18.10.2010 (Annexure-1) and since the petitioner was getting provisional family pension, it was finalized on 19.1.2015 (Annexure-2). The family pension amount has been deposited in the savings bank account of the petitioner maintained at State Bank of India, Nuagaon ADB Branch and the opposite parties have also deposited the said amount of Rs.3,10,335/- towards gratuity of the deceased employee in the said account of the present petitioner. It is alleged inter alia that within fourteen days of such deposit, i.e., on 14.8.2015, the opposite parties have withdrawn such amount from the savings account of the present petitioner without her knowledge. On 25.8.2015, while the petitioner had been to the bank to withdraw her amount, she came to know that Rs.3,10,335/- have been withdrawn by the opposite parties from her bank account without her knowledge. On 25.8.2015, while the petitioner had been to the bank to withdraw her amount, she came to know that Rs.3,10,335/- have been withdrawn by the opposite parties from her bank account without her knowledge. From the copy of the document available under the Right to Information Act, she came to know that since the compensation awarded under the Workmens’ Compensation Act (in short “the Act”) to the tune of Rs.3,02,125/- paid to the petitioner, therefore, the pension is reduced to 30% of last salary of deceased employee from 50% as per Rule 56(4)(a)(i) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as “Rules, 1992”). As there was excess payment of family pension made during the month of May, 2010 to June, 2015, same was recovered from the said amount of gratuity. 3. Be it stated that even if 30% is computed, the excess amount should be Rs.2,41,152/-, which should have been adjusted, but instead of withdrawing said amount, the opposite parties have withdrawn the entire amount of Rs.3,10,335/- from the bank account of the petitioner. Further, the petitioner challenges such reduction of the family pension amount to 30% as the concerned provisions of law is silent about reduction of the family pension in the event where workman died in an accident and got compensation under the Act. 4. Be it stated that while the opposite parties decided to withdraw the benefit already granted, a notice should be issued to the petitioner for giving her opportunity of being heard but the action of the opposite parties in withdrawing the amount from the bank account of the present petitioner, without her knowledge, is violative of the principles of natural justice. On the other hand, principles of natural justice have been violated by the opposite parties by making recovery of the amount already paid. So, it is prayed for a direction to the opposite parties to grant family pension at the rate of 50% of pay last drawn by the deceased employee and refund the amount already withdrawn from the bank account with interest. 5. Per contra, the opposite parties have filed a counter affidavit refuting the allegations made in the writ petition. So, it is prayed for a direction to the opposite parties to grant family pension at the rate of 50% of pay last drawn by the deceased employee and refund the amount already withdrawn from the bank account with interest. 5. Per contra, the opposite parties have filed a counter affidavit refuting the allegations made in the writ petition. It is the case of the opposite parties that the opposite parties are following the Rules, 1992 and as per the provision of Rule 56(4)(a)(i) of Rules, 1992, any Government servant, who is not governed by the Act, dies while in service after having rendered not less than seven years of continuous service, the rate of family pension payable to the family shall be equal 50% of the pay last drawn. Rule 56 (2)(c) of Rules, 1992 postulates that after retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter-IV other than the pension referred to in Rules 43 ad 44, the family of the deceased shall be entitled to family pension, the amount of which shall be calculated at the uniform rate of 30% of the emoluments and shall be subject to a minimum of Rs.1,275/- and maximum of Rs.6,000/- per month. Since the case of the petitioner comes within Section 56(2)(c) of Rules, 1992, the amount of family pension was reduced to 30% instead of payment of 50%. 6. Be it stated that the opposite parties have also taken undertaking from the petitioner under Rule 70 of Rules, 1992 to the effect that the excess amount paid would be recovered from her monthly family pension without any further notice. So, when the opposite parties came to know that excess amount has been paid to the petitioner, such amount was withdrawn from the savings bank account of the petitioner. The opposite parties have also filed an additional counter affidavit stating therein that when the opposite parties have ascertained that an amount of Rs.2,42,172/- has been paid excess to the petitioner towards family pension, they decided to recover the excess amount from the gratuity fund of the petitioner for which on 14.8.2015, opposite party no.5 requested the bank authority to return the amount deposited on 21.7.2015 in the account of the petitioner. It is stated that the opposite party no.5, vide his letter no.912(3) dated 18.8.2015 has requested the opposite party no.3 for adjustment of the excess payment of provisional pension of the above amount from gratuity preserving the wage board arrear amount of Rs.1020/- as she is eligible to get the same for the period of April-May, 2010. After deducting the recoverable amount of Rs.2,42,172/- from the gratuity amount of Rs.3,10,335/-, rest amount of Rs.68,163/- and Rs.1020/- was again deposited in the account of the petitioner on 21.9.2015 and 22.3.2016 respectively. Since the recovery has been made as per Rule 70-A of Rules, 1992, the action of the opposite parties is justifiable and the writ petitioner has no cause of action to file the present writ petition under Articles 226 and 227 of the Constitution of India and the same should be rejected being not in accordance with law. SUBMISSIONS 7. Miss.Mohapatra, learned counsel for the petitioner submitted that according to Rule 56(4)(a)(i) of Rules, 1992, the petitioner is entitled to 50% family pension because she has received the compensation under the Act only after the death of her husband, who met with an accident while in service. She further submitted that the provisions of Rule 56(2)(c) of Rules, 1992 is not applicable to the present case to reduce her pension to 30% and even if the pension is reduced, the amount already withdrawn from her account without any proper notice to her is gross violation of the principles of natural justice. In support of her submission, she cited the decision of the Hon’ble Supreme Court rendered in the case of State of Punjab and others -V- Rafiq Masih (White Washer) and others; (2015) 4 SCC 334 where Their Lordships, at paragraph-18 of the said judgment, have observed in the following manner: “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 herein 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). Be that as it may, based on the decisions referred to herein 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 equitable balance of the employer's right to recover.” 8. In view of such provisions as enunciated by the Hon’ble Supreme Court, she submitted not to recover any excess amount as in the instant case, the husband of the petitioner was an employee of Group-D service and recovery of amount, if any, would be a hardship to her. 9. Mr. Mohanty, learned Senior Advocate for the opposite parties submitted that Rule 70-A of Rules, 1992 amply permits the opposite parties to recover the excess amount, if paid, from the gratuity amount of the employee. Moreover, it is submitted that when the petitioner has received the compensation under the Act, she is not entitled to family pension 50% equal to or last pay drawn by the deceased employee, rather she is entitled for family pension 30% equal to such last pay drawn by the petitioner’s husband. He also cited the judgment of the Hon’ble Supreme Court in the case of Chandi Prasad Uniyal and others -V- State of Uttarakhand and others; AIR 2012 SC 2951 where Their Lordships, at paragraph-16 of the said judgment, have observed as follows: “16. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We are concerned with the excess payment of public money which is often described as “tax payers money” which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. 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 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 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.” 10. Relying upon the aforesaid decision of the Hon’ble Supreme Court, he submitted that since the excess amount paid is a tax payers money and there is provision to recover the same, the opposite parties have not done any wrong by withdrawing the amount from the savings bank account of the petitioner. POINT FOR CONSIDERATION 11. The main point for consideration is as to whether the principles of natural justice have been violated by the opposite parties while withdrawing the gratuity amount from the bank account of the present petitioner. DISCUSSIONS 12. It is admitted fact that the petitioner is the widow of late R. Nagaraju and while the deceased husband of the petitioner was working as Line-Man, he got burn injuries on 28.5.2010 and succumbed to such injuries on 29.5.2010 while under treatment. It is also not in dispute that the Commission awarded compensation of Rs.6,04,250/-, which was challenged before this Court by the opposite parties and this Court, vide order dated 23.8.2013 passed in FAO No.424 of 2012, have modified the award to the tune of Rs.3,02,125/- along with interest. It is also not in dispute that the Commission awarded compensation of Rs.6,04,250/-, which was challenged before this Court by the opposite parties and this Court, vide order dated 23.8.2013 passed in FAO No.424 of 2012, have modified the award to the tune of Rs.3,02,125/- along with interest. It is also not in dispute that the opposite party no.5 has deposited the sanctioned gratuity amount of Rs.3,10,335/- in bank account of the petitioner on 30.7.2015. 13. Learned counsel for the petitioner strenuously contended that whether the petitioner is entitled to 50% family pension or 30% family pension, but the action of the opposite parties in recovering the entire gratuity amount from the savings account of the present petitioner without giving any notice to the petitioner is clearly violation of the principles of natural justice. Contrary to the submission of the learned counsel for the petitioner, learned Senior Advocate for the opposite parties submitted that as per Rule 70-A of Rules, 1992, they have obtained the undertaking to recover the excess amount, if paid, to the petitioner and accordingly they have recovered the amount after issuing notice to the petitioner in accordance with law for which the question of violation of principles of natural justice is non-est. 14. Rule 70(A) of the Rules, 1992 speaks as follows: “70-A. Recovery of over-payment: Any over payment to a retied a Government employee or his/her family on account of final payment of General Provident Fund, Gratuity, Pension and Temporary Increase detected before or after retirement, not being legally due to such retired employee or his/her family, shall be deemed to be Government dues and shall be recovered from his/her gratuity and/or Temporary Increase on Pension.” 15. From the aforesaid provision, it is clear that any over payment to the retired Government employee on account of payment of general provident fund, pension and temporary increase shall be recovered from his/her gratuity after the same being treated as Government due and for that, one declaration shall be retained by the pension sanctioning authority from the person concerned as per Note-2 of Rule 70-A of Rules, 1992. 16. 16. The authorities have produced the copy of the undertaking obtained by the Pension Sanctioning Authority on 25.11.2010 in following manner: “ANNEXURE-II UNDERTAKING I do hereby undertake that any excess payment that may be found to have been made as result of incorrect revision of Pension/Family Pension of any excess payment detected in the light of discrepancies noticed subsequently will be refunded by me to the concerned Pension Disbursing Authority either by adjustment against future Pension/Family Pension due to me or otherwise. Sd/- Smt. R.Waralaxmi PPO NO//FPPO No:W/o-Late R. Nagaraja” 17. The aforesaid undertaking appears to have not been obtained in consonance with Rule(5)(a) of the Rules, 1992. Even if assuming that there is excess payment, there is nothing found from the aforesaid undertaking that such amount would be recovered from the gratuity already paid to the petitioner. The opposite parties have also produced the notice dated 12.8.2015 issued to the petitioner, which is reproduced as under: “Southco Utility OFFICE OF THE EXECUTIVE ENGINEER (ELECTRICAL), PHULBANI ELECTRICAL DIVISION, PHULBANI Email:ped.phulbani@gmail.com, Ph:06842-253732 ------------------------------------------------------------------- Letter No.875 (E)/PED Date:12.8.2015 By Regd. Post To Smt. R. Waralaxmi W/o-Late R. Nagaraju, Ex-Helper AT/PO-Nuagaon Via-Balliguda, Dist-Kandhamal Sub: Recovery of Excess Payment of Provision Pension Madam, With reference to above cited subject, this is to intimate you that you have been paid excess amount of Provisional family pension Rs.242172.00 (Rupees Two Lakhs Fourty Two Thousand One Hundred Seventy Two) only, within the period from may 2010 to June 2015 which may please be deposited to this office within one month or else the amount will be recovered from your monthly pension now paid without any further notice. Encl: As above Yours Faithfully, Sd/- Executive Engineer (Elect) P.E. Division, Phulbani Copy communicated to: 1. Dy. Manager (F) Southco Utility, Berhampur 2. Superintendent Engineer, Electrical Circle, Bhanjanagar” 18. From the aforesaid notice, it appears that notice has been given to the petitioner to deposit the excess amount of provisional family pension of Rs.2,42,172/- or else, such amount would be recovered from her monthly pension now paid without any further notice. So, the notice also does not disclose that the petitioner was issued with the notice to recover the excess amount from the gratuity as the same was already paid and deposited in her savings bank account. 19. So, the notice also does not disclose that the petitioner was issued with the notice to recover the excess amount from the gratuity as the same was already paid and deposited in her savings bank account. 19. From the aforesaid material, there is nothing conveyed that the petitioner was even issued with the notice to recover the excess amount from the gratuity of the deceased employee already deposited in her savings account. It must be observed that the present petitioner is a widow of an employee who died in harness while discharging his duty. Since the petitioner is a woman and her savings account is her own account, any amount deposited in her account, is her STRIDHAN. When there is no clear notice to recover any amount from her savings account and the amount is nothing but the gratuity made available to her by virtue of the direction of this Court dated 23.8.2013 passed in FAO No.424 of 2012, the action of the opposite parties intimating the opposite party no.3 to take away that money without her knowledge is gross violation of principles of natural justice. It is further revealed that the entire gratuity amount of Rs.3,10,335/- has been recovered from her savings account on 14.8.2015 although the notice was issued just before two days, i.e., on 12.8.2015 to deposit the excess amount of provisional family pension paid within a period of one month or else the same would be recovered from her monthly family pension. So, the recovery of the amount which is after only two days of the notice is otherwise illegal and improper and cannot be said that the notice has been duly issued and received by the petitioner and, therefore, service of notice is not proved by the opposite parties. Thus, the conduct of the opposite parties to recover the excess amount is very deplorable and speaks volume on the violation of right of the petitioner, who has every right to protect her property either immovable or movable. 20. Thus, the conduct of the opposite parties to recover the excess amount is very deplorable and speaks volume on the violation of right of the petitioner, who has every right to protect her property either immovable or movable. 20. From the foregoing discussions, it appears that the undertakings from the petitioner having not been obtained as per Rules, 1992 and the notice also being not issued in terms of the provisions of law to recover the excess amount, if any, the recovery of the entire amount of gratuity from her savings bank account without her notice is nothing but abuse of process of law and consequently, the violation of the principles of natural justice available to the petitioner. The issue is answered accordingly. CONCLUSION 21. In the writ petition, a prayer has been made to direct the opposite parties to grant full family pension @50% at the rate of last pay drawn by the deceased employee to the petitioner and refund the amount already withdrawn by them from the bank account of the petitioner. When it is observed in the aforesaid paragraphs that the gratuity amount has been withdrawn by violating the principles of natural justice, except such amount of Rs.68,163/- which is deposited subsequently in her savings bank account as stated in additional counter affidavit, rest of amount should be refunded by depositing the same in the savings bank account of the present petitioner and then the opposite parties should follow the provisions of law in determining the regular family pension whether it is 30% or 50% of salary last drawn by the deceased husband and then recover the excess amount, if any, strictly as per the provisions of the Rules, 1992. 22. In terms of the above discussions, the opposite parties are directed to deposit the aforesaid amount of Rs.2,42,142/- with accrued interest in the savings bank account of the present petitioner within a period of four weeks from today. 22. In terms of the above discussions, the opposite parties are directed to deposit the aforesaid amount of Rs.2,42,142/- with accrued interest in the savings bank account of the present petitioner within a period of four weeks from today. It is further directed that after the above deposit is being made, the opposite party no.1 would do well to proceed to determine as to whether any excess amount is required to be refunded by the present petitioner in accordance with law after affording reasonable opportunity of being heard to her within a period of eight weeks from the date of deposit in her said bank account and in the event of any amount to be refunded, opposite party no.1 would proceed strictly in accordance with Rules, 1992. The petitioner is further directed not to withdraw the money from the said bank account after deposit being made by opposite party no.1 till determination of excess amount by opposite party no.1. The writ petition is disposed of accordingly.