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2022 DIGILAW 1529 (CAL)

Jharna Chakraborty v. State Bank Of India

2022-12-08

MOUSHUMI BHATTACHARYA

body2022
JUDGMENT Moushumi Bhattacharya, J. - The petitioner is the widow of an employee who worked under the Government of West Bengal at the time of retirement. The petitioner's husband retired from service on 30.6.2000 and drew a pension of Rs. 2,480/- month from the date of retirement. The petitioner's husband died on 13.10.2002 after which the petitioner informed the Asst. General Manager of the State Bank of India (SBI) about the death of her husband and requested to start family pension in favour of the petitioner. The petitioner was provided with family pension vide Pension Payment Order (PPO) which is part of the records. The petitioner got family pension from 2002 to December, 2021. The family pension was however stopped from January, 2022. The petitioner contacted the respondent bank, SBI pursuant whereto the petitioner, according to the learned counsel appearing for the petitioner, was compelled to sign an undertaking on 29.1.2022 declaring that the petitioner authorises the Bank to recover any amount paid to the petitioner which the petitioner is not entitled to. 2. The petitioner claims that the petitioner was not put on notice of the sudden stoppage of the family pension from January, 2022 and was not informed of the reason for the same. 3. The petitioner has challenged two impugned letters of SBI dated 15.2.2022 and 18.5.2022 respectively. By the said letters, the petitioner was informed that the petitioner was paid excess pension of Rs. 9,71,184/- on account of wrong reflection of the basic pay of the petitioner's deceased husband. The petitioner was accordingly told that the Bank would recover the excess amount from the petitioner. In both these letters, the SBI admits to an error in calculation on its part. The petitioner seeks quashing of both the letters and for a direction on SBI to pay the family pension due to the petitioner from January, 2022 without any deduction. 4. Learned counsel appearing for the petitioner relies on State of Punjab vs. Rafiq Masih (White Washer); (2015) 4 SCC 334 wherein the Supreme Court held certain instances of recovery by employers to be impermissible in law (Paragraph 18 of the Report). Counsel also relies on a recent decision of the Supreme Court pronounced on 2.5.2022 in Thomas Daniel vs. State of Kerala, Civil Appeal No. 7115 of 2010 which followed the dictum in Rafiq Masih. Counsel also relies on a recent decision of the Supreme Court pronounced on 2.5.2022 in Thomas Daniel vs. State of Kerala, Civil Appeal No. 7115 of 2010 which followed the dictum in Rafiq Masih. Counsel submits that SBI discovered its mistake in calculation of the amounts disbursed to the petitioner after more than 15 years from the date on which the petitioner was allowed the disputed quantum of family pension. 5. Learned counsel appearing for SBI relies on several decisions to buttress the Bank's right to recover the excess amount paid to the petitioner. Foremost among these decisions are Chandi Prasad Uniyal vs. State of Uttarakhand; (2012) 8 SCC 417 and High Court of Punjab and Haryana vs. Jagdev Singh; (2016) 14 SCC 267 . Counsel also relies on decisions of Co-ordinate Benches including in Sri Biswabrata Basu vs. State Bank of India, W.P. No. 29901(W) of 2015. 6. The point for adjudication in the present writ petition is whether the respondent State Bank of India can recover the excess payment made to the petitioner on account of family pension by reason of an admitted error on the part of SBI. Notably, SBI was not the employer of the petitioner's deceased husband but is the disbursing authority of the family pension. Paragraph 18 of Rafiq Masih makes it clear that the situations of hardship where recovery would not be permissible in law were restricted between the employer and the employee. This was also the case in Thomas Daniel where the employer was the Accountant General of the State of Kerala and the Supreme Court accordingly followed Rafiq Masih in holding that the recovery of the amount could not be made particularly after 10 years from the date of retirement of the petitioner before the Supreme Court. 7. The issue is hence whether SBI, as the disbursing authority of the family pension, can be brought within the fold of Rafiq Masih barring recovery from a retired or soon-to-retire employee who falls within the categories mentioned in paragraph 18 of the Report. It is of relevance to point out that a Co-ordinate Bench in its order dated 7.7.2022 in Smt. Renuka Sarkar vs. State of West Bengal, W.P.A. 10545 of 2020 noted the decisions both in favour and against recovery of excess amount by the Bank. The facts in Renuka Sarkar also involved a letter issued by the Asst. It is of relevance to point out that a Co-ordinate Bench in its order dated 7.7.2022 in Smt. Renuka Sarkar vs. State of West Bengal, W.P.A. 10545 of 2020 noted the decisions both in favour and against recovery of excess amount by the Bank. The facts in Renuka Sarkar also involved a letter issued by the Asst. General Manager, State Bank of India, to the petitioner informing the latter that an excess sum was paid to the petitioner part of which had already been recovered. The learned Judge referred the issue to a larger Bench upon finding conflicting decisions on the subject. 8. This Court also notes the decisions passed by Co-ordinate Benches both in favour of recovery and against by the disbursing bank. Under the circumstances, this Court deems it fit to refer the issue to a larger Bench for a decision on the subject. The issue accordingly is : Whether a Bank, being the disbursing authority of pension to a retired employee or his family member, can be brought within the fold of the Supreme Court decision in State of Punjab vs. Rafiq Masih (White Washer); (2015) 4 SCC 334 , more specifically under Paragraph 18 of the decision? 8. The balance of convenience in the facts before the Court cannot however be ignored. The State Bank of India has continued to pay family pension to the petitioner from 2002 - December 2021 that is almost for 20 years at the accepted rate before the impugned letters were issued to the petitioner. The petitioner was made to sign an undertaking for the first time on 29.1.2022 i.e. again after 20 years from the date on which the petitioner was paid family pension. The first impugned letter was issued within a month from the undertaking given by the petitioner. The Bank has unequivocally admitted to its error in calculating the basic pay in both the impugned letters. Hence, this Court finds no tenable basis for the Bank to discontinue the family pension of the petitioner from January, 2022. This act is clearly arbitrary and retaliatory. The petitioner has remained deprived of her family pension for almost a year from January, 2022 till date. 9. Hence, this Court finds no tenable basis for the Bank to discontinue the family pension of the petitioner from January, 2022. This act is clearly arbitrary and retaliatory. The petitioner has remained deprived of her family pension for almost a year from January, 2022 till date. 9. Hence, until the issue, as framed, is decided by a larger Bench constituted by the Hon'ble the Chief Justice of this Court, the SBI shall pay family pension to the petitioner at the rate calculated by SBI every month as was done from October, 2002 till December, 2021. The deducted amount shall be deposited by SBI every month to the Registrar General of this Court which shall be kept in a separate account preferably in an interest bearing account in a reputed Bank. The SBI shall pay the arrear pension from January, 2022 till December, 2022 at the rate calculated by it to the petitioner within 2 weeks from the date of this judgment. The amount deposited will be disbursed in favour of the party who succeeds before the larger Bench. 10. Let the record of this writ petition along with copies of the judgments relied on by counsel appearing for the parties be placed before the Hon'ble the Chief Justice for constitution of a larger Bench for examination of the issue as formulated above. Urgent Photostat certified copies of this judgment, if applied for, be supplied to the respective parties upon fulfillment of requisite formalities.