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Allahabad High Court · body

2019 DIGILAW 953 (ALL)

Kashi Nath Gupta v. Chairman Allahabad Bank

2019-04-15

AJAY BHANOT

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JUDGMENT : Ajay Bhanot, J. 1. Heard Sri G.P. Gupta, learned counsel for the petitioner, Sri P.N. Tripathi, learned counsel for the respondent Bank and Sri P.K. Pandey, learned counsel holding brief of Sri Sharad Ranjan Nigam, learned counsel for the respondent Railways. 2. The petitioner has prayed for quashment of the order dated 21.01.2013 passed by the Chief Account Officer, Uttar Madhya Railway, Allahabad and letter dated 12.04.2013 issued by the respondent Bank and for release of the excess amount to the extent of Rs. 5,59,690/which has been recovered from the petitioner. The further prayer of the petitioner is as under: “issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the medical allowance and pension as per revised P.P.O. And increase pension by virtue of implementation of Vith Pay Commission w.e.f. 01.01.2006 as per Annexure1 to this writ petition.” 3. The petitioner has assailed the recovery of excess pension paid to the petitioner seven years after his superannuation. The recovery was effected by letter dated 12.04.2013 issued by the respondent Bank. 4. Sri G.P. Gupta, learned counsel for the petitioner contends that no opportunity of hearing was granted to the petitioner before the effecting the recovery of excess amount paid to the petitioner. The petitioner consented for deduction of the amount at the rate of two thousand per month under duress and the same cannot be held against the petitioner nor does it curtail his rights to challenge the arbitrary and illegal recovery from his pension. 5. Sri P.N. Tripathi, learned counsel for the respondent Bank submits that the Bank has merely acted on the instructions of the employer which is the Railways. He further places reliance on an undertaking given by the petitioner at the time of his superannuation to the respondent Bank on 27.10.2004. 6. Sri P.K. Pandey, learned counsel for the Railways submits that the petitioner's pension was incorrectly fixed. Excess pension was released in favour of the petitioner on account of the aforesaid incorrect fixation. The petitioner cannot claim any right to the amount to which he was not lawfully entitled. 7. Heard learned counsel for the parties. 8. The petitioner superannuated from the post of driver in the South East Central Railway on 30.06.2004. The petitioner became entitled to payment of pension w.e.f. 01.07.2004. The petitioner cannot claim any right to the amount to which he was not lawfully entitled. 7. Heard learned counsel for the parties. 8. The petitioner superannuated from the post of driver in the South East Central Railway on 30.06.2004. The petitioner became entitled to payment of pension w.e.f. 01.07.2004. The petitioner was paid his pension regularly as and when it became due after his superannuation. The petitioner had opened his pension account in the Allahabad Bank, Branch Bansdih, District Ballia. 9. By letter dated 23.04.2011 the Bank authorities intimated the petitioner that a discrepancy in the fixation of his pension had come to light. The excess amount to the extent of Rs. 5,40,275/was paid to the petitioner towards his pensionary dues. The letter dated 23.04.2011 issued by the Bank required the petitioner to refund the entire excess amount paid by him. Subsequently by communication dated 12.04.2013 the respondent Bank intimated that the petitioner had received an excess amount of Rs. 5,59,690/towards his pension. The letter then records that the petitioner is liable to repay the aforesaid excess amount. A further recital in the communication dated 24.04.2013 has been made by the Bank that the payment of pension is an issue between the employer and the employee. The Bank is bound by any decision of the employer namely the Railways. 10. The petitioner has specifically asserted that the employer of the petitioner namely the Railways which is liable to pay the pension to the petitioner did not issue any notice to the petitioner regarding payment of excess amount or incorrect fixation of his pension. The order of recovery of pension is exparte to the petitioner and has been made at a highly belated stage after a period of seven years from the date of fixation of his pension. The petitioner on his part clearly resisted the recovery against him by tendering a letter dated 24.02.2011. The letter records the details of the mistakes made by the bank authorities. However, the letter also records the consent to deduct a certain amount on monthly basis from his pension. The letter is hedged with conditionalities. The tenor of the letter dated 24.02.2011 clearly reveals that the adjustment of amount from his pension on monthly basis towards recovery of access amount, was not unconditional undertaking given by the petitioner authorizing the respondents to make a recovery. The letter is hedged with conditionalities. The tenor of the letter dated 24.02.2011 clearly reveals that the adjustment of amount from his pension on monthly basis towards recovery of access amount, was not unconditional undertaking given by the petitioner authorizing the respondents to make a recovery. The contents of the letter reveal that the petitioner succumbed before the authorities and accepted the recovery of the amount as a fait accompli. The petitioner did not waive his rights to challenge the validity of such recovery. 11. The petitioner's right to challenge the recovery is not in any manner impaired by the letter dated 24.02.2011. The undertaking given to the respondent Bank is also of no avail since it has not been given to the employer namely the Railways. In any case even if the undertaking is taken on its face value it does not authorise the Bank to make the recovery dehors the law laid down by the Hon'ble Supreme Court. 12. After consideration of the pleadings in the record this Court finds that the Railway authorities did not serve any notice upon the petitioner regarding incorrect fixation of his pension or payment of excess pension to him. The petitioner was never given an opportunity to tender his defence and refute the charge of excess payment. The recovery order was ex parte to the petitioner. The procedure adopted by the Railway authorities is not known to law and is arbitrary. 13. More importantly the issue relating to recovery of excess salary paid to an employee engaged the attention of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih and others, (2014) 8 SCC 883 . The Hon'ble Supreme Court in the case of Rafiq Masih (supra) held that the right to recovery of an employer to recover excess salary paid is not an unconditional right but is circumscribed by various limitations. The limitations posed upon an employee to recover excess salary paid to an employee were thus summarised in Rafiq Masih (supra): "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. The limitations posed upon an employee to recover excess salary paid to an employee were thus summarised in Rafiq Masih (supra): "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 employees belonging to Class III and Class IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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." 14. The petitioner being a Class III employee falls within the ambit of Clause (I) and Clause (II) of the facts situations in Rafiq Masih (supra). 15. It also needs to be mentioned that the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) was considered in the case of High Court of Punjab and Haryana and others Vs. Jagdev Singh, AIR 2016 SC 3523 . In the case of Jagdev Singh (supra) the Hon'ble Supreme Court took note of the distinct facts of the case and declined to apply the principle of protection granted to such employees in the case of Rafiq Masih (supra) by holding as under:_ “11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. 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. ” 16. The facts which needs to be noticed is that the case of Jagdev Singh (supra) did not fall in the category I of the class of employees and situations in Rafiq Masih (supra). The employee in the case of Jagdev Singh (supra) was a judicial service officer. He was not a Class III or Class IV employee. Moreover, in the Jagdev Singh (supra) an undertaking was given to the employer. In this case, as this Court finds no such undertaking was given to the employer. 17. In view of the facts found in this case and the law laid down by the Hon'ble Supreme Court in the case of Jagdev Singh (supra), will not apply here. However, the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) will rule the fate of the instant case. 18. The order dated 21.01.2013 passed by the Chief Account Officer, Uttar Madhya Railway, Allahabad has been passed in violation of principles of natural justice. The order dated 21.01.2013 is a non speaking order and suffers from non application of mind. The order dated 21.01.2013 is arbitrary, illegal and cannot stand. 19. The order dated 12.04.2013 passed by the respondent no. 3 is in excess of jurisdiction. The order has been passed in violation of principles of natural justice. The order dated 12.04.2013 is only a consequential order to the order dated 21.01.2013. The order dated 12.04.2013 cannot cure the fundamental illegalities which vitiates the order dated 21.01.2013. Moreover, the order dated 12.04.2013 has been passed in violation of principles of natural justice. The order dated 12.04.2013 suffers from non application of mind. The order dated 12.04.2013 completely overlooks the defence of the petitioner tendered while resisting the recovery against him. The order dated 12.04.2013 is arbitrary, illegal and cannot stand. 20. In the wake of the preceding discussion this Court finds that the recovery of the amount of Rs. The order dated 12.04.2013 suffers from non application of mind. The order dated 12.04.2013 completely overlooks the defence of the petitioner tendered while resisting the recovery against him. The order dated 12.04.2013 is arbitrary, illegal and cannot stand. 20. In the wake of the preceding discussion this Court finds that the recovery of the amount of Rs. 5,59,690/made from the petitioner is arbitrary and illegal. 21. In the light of the preceding narrative, the he orders dated 21.01.2013 passed by the Chief Account Officer, Uttar Madhya Railway, Allahabad and order dated 12.04.2013 passed by the respondent no. 3 are quashed. 22. A writ of mandamus is issued commanding the respondents to refund the amount to the extent of Rs. 5,59,690/to the petitioner forthwith. 23. The petitioner claims that his pension needs to be fixed again. He has made a representation for refixation of his pension to the Railway authorities. 24. The respondent Railway authorities shall decide the application of the petitioner for revising his pension. The petitioner shall make a fresh representation before the respondent no. 4 for refixation of his pension. The competent Railway authority shall decide the quantum of pension to which the petitioner is entitled strictly in accordance with law without being influenced by the observations made herein above within a period of four months. 25. The writ petition is allowed.