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2022 DIGILAW 1109 (RAJ)

Usha Mehta v. State Of Rajasthan

2022-04-06

REKHA BORANA

body2022
JUDGMENT Rekha Borana, J. - The present writ petition has been filed aggrieved of the order dated 11.08.2016, whereby the petitioner was directed to deposit the excess amount paid to her qua her family pension. 2. The brief facts of the case are as under:- After the death of the husband of the petitioner who was a government employee, family pension order was issued in her favour by the competent authority vide order dated 04.06.2005. After 8 years of the issuance of the said order, a letter dated 27.07.2016 was served on the petitioner, wherein it was mentioned that an amount of Rs. 5,68,626/- had been paid excess to the petitioner. Vide notice dated 11.08.2016, the respondent - Bank directed the petitioner to deposit the excess amount in a single transaction. 3. It is relevant to note here that after the receipt of the communication dated 27.07.2016, the petitioner, in all good faith, requested the respondent - Bank not to recover the excess amount in lump sum and to deduct the same in installments. In pursuance to the request of the petitioner, one third of the pension payable was started to be deducted by the bank per month. But vide communication dated 05.01.2017, it was informed by the bank that the remaining amount is to be paid in lump sum and so the same be deposited by the petitioner with the bank. Aggrieved against the same, the present writ petition has been filed. 4. It has been argued by the counsel for the petitioner that no recovery qua the excess payment made to the petitioner is recoverable from her, in view of the ratio as laid down by the Hon'ble Apex Court in State of Punjab & Ors. v. Rafiq Masih reported in 2015 (4) SCC 334 . 5. Counsel argued that the excess payment was not made to the petitioner because of any miscommunication, misstatement, fraud or mistake on part of the petitioner/employee. The excess amount, if any, had been paid because of a miscalculation on part of the bank or the State for which the petitioner cannot be held to be liable and consequently, the excess amount cannot be held to be recoverable from her. Counsel submitted that the communication/undertaking given by the petitioner was in all good faith and in ignorance of the law. Counsel submitted that the communication/undertaking given by the petitioner was in all good faith and in ignorance of the law. He submitted that despite the said undertaking being furnished by the petitioner, she is not liable to the recovery as alleged against her, rather she is entitled to the refund of the excess amount already recovered from her. Beside the Rafiq Masih's case (supra), counsel also relied upon the judgment passed in S.B. Civil Writ Petition No. 5553/2014; Mukan Singh Rajpurohit v. State of Rajasthan & Ors. decided on 12.04.2017. 6. Per contra, counsel for the State argued that the PPO issued in favour of the petitioner by the Pension Department specifically mentioned that an amount of Rs. 9,300/- was to be paid up to 28.03.2012 and thereafter, Rs. 5,580/- per month was to be paid. It has been argued by the counsel that there was no role of the State Authorities in the said excess payment being made to the petitioner. It was only the bank which has issued the excess payment to the petitioner. For the purpose, counsel relied on the documents placed on record, whereby, the PPO and the revised PPO had been issued specifically mentioning the fact. It is the submission of the counsel for the State that the amount is first paid to the employee by the bank and then the same is refunded by the State to the bank after the relevant bill being submitted by the bank to the State. Therefore, the fault, if any, in excess of payment has been committed by the bank and not by the State Authorities. Counsel therefore argued that even if the petitioner is held to be entitled for refund of the amount already recovered, the sole liability should be of the bank only. 7. Counsel relied upon the judgment passed by Hon'ble Apex Court in the case of High Court of Punjab and Haryana & Ors. v. Jagdev Singh reported in 2016 (14) SCC 267 . 8. Learned counsel for the respondent-Bank argued that in the present matter, there was a specific undertaking given by the present petitioner twice to the bank to the effect that if any excess amount is paid qua her pension, the same would be liable to be refunded by her on a demand by the bank. 8. Learned counsel for the respondent-Bank argued that in the present matter, there was a specific undertaking given by the present petitioner twice to the bank to the effect that if any excess amount is paid qua her pension, the same would be liable to be refunded by her on a demand by the bank. Counsel relied upon the document Annexure - R-1/3 placed on record and further upon the communication sent by the petitioner vide registered letter dated 08.08.2016, whereby the petitioner requested that she is not in a position to deposit the complete amount in lump sum and 1/3rd of the pension per month be recovered. Counsel argued that because of the above mentioned two undertakings, the petitioner is now estopped from arguing that she is not liable to refund the amount admittedly paid in excess. 9. Heard learned counsel for the parties and perused the material available on record. 10. It is a fact admitted on record that the amount qua the pension was paid in excess to the petitioner. The only question that remains for consideration is whether the same is recoverable from the petitioner or not. In Rafiq Masih's case (supra), the Hon'ble Apex Court laid down the guidelines and the principles where the amount paid in excess to an employee cannot be recovered, if the said amount has been paid because of no misstatement or fraud on the part of the employee. The classes of employees which have been exempted from recovery and which have been held to be impermissible in law are as under:- "18. ......... (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. (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." 11. Apparently, the present petitioner falls both in category (ii) and (iii) as defined in the above mentioned categories. Therefore, in view of the ratio laid down in Rafiq Masih's case (supra), it is held that the amount paid in excess is not liable to be recovered from the petitioner. But the fact in the present case remains that certain amount @ Rs. 6,500/- per month for a period of 11 months has already been adjusted from the account of the petitioner till the interim order was passed in the present matter. The said adjustment was made by the bank on the communication made by the petitioner herself requesting for the said adjustment. It is clear on record that the petitioner had for the first time, submitted an undertaking at the inception of the pension order being passed in her favour and again when for the second time, when the demand was raised by the bank. 12. In Jagdev Singh's case (supra), the Hon'ble Apex Court held that in cases where there is a clause that any payment found to have been made in excess would be required to be refunded and the employee furnishes an undertaking qua the same, he/she would be bound by the said undertaking. Therefore, the petitioner in the present case would also be bound by her undertaking and her consent which she rendered for adjustment of the excess amount from pension. 13. In order to balance the equities, it would be appropriate that the amount already adjusted from the pension account of the petitioner not be refunded to her by the Bank or the State. However, the State as well as the Bank would not be entitled to recover the remaining amount qua the excess amount paid to the petitioner. 14. With the above observations, the present writ petition is disposed of. However, the State as well as the Bank would not be entitled to recover the remaining amount qua the excess amount paid to the petitioner. 14. With the above observations, the present writ petition is disposed of. However, it is made clear that it would be open for the State Authorities to proceed against the responsible Authorities or the Bank, whosoever is liable for the excess amount being paid to the petitioner. 15. All the pending applications also stand disposed of.