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IN THE HIGH COURT OF PATNA
Chakradhari Sharan Singh, J.
Kailash Bhushan Tiwari – Appellant
Versus
The State of Bihar And Others – Respondents
Civil Writ Jurisdiction Case No. 7961 of 2020
Decided On : 12-02-2021
Service Law – Recovery – Recovery from employees belonging to lower rung of service should not be subjected to ordeal of any recovery even though they were beneficiaries of receiving higher emoluments – Nature of relief restraining back recovery of excess payment is granted by Courts not because of any right of employees, but in equity in exercise of judicial discretion to relieve employees from hardship that will be caused if recovery is implemented – If an employee receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it – In such circumstances, any subsequent action to recover excess payment shall cause undue hardship and, therefore, relief is granted in that behalf – Right to recover would be sustainable so long as same was not iniquitous or arbitrary. (Paras 17 and 18)
Bihar Pension Rules, 1950 – Rule 202 – Recovery – Payment of excess amount of pension – It is a case of more amount being deposited in employees' pension account by mistake, despite his pension having been rightly fixed and granted – Such benefits cannot be extended to an employee merely on account of fact that he was not an accessory to mistake committed by employer or merely because employee did not furnish any factually incorrect information on the basis whereof employer committed mistake of paying employee more than what was rightly due to him or merely because of excessive payment was made to employee in absence of any fraud or misrepresentation at behest of employee – It was well within knowledge of petitioner that amount which he was receiving, was more than amount of pension which was granted to him – Merely on account of fact that petitioner was not an accessory to mistake committed by employer leading to payment of more amount than petitioner was rightfully entitled to, action of respondents to recover excess amount credited in petitioner's account shall not require this Court's interference – It is only when Court reaches a conclusion that recovery would result in a hardship of a nature which would far outweigh equitable balance of employer's right to recover', that interference with action of employer seeking recovery of excess monetary benefits wrongfully extended to petitioner can be interfered with – Petitioner, in all fairness, ought to have brought to notice of employer or banker that amount which was being deposited in his pension account, was more than rate of pension granted in his favour with issuance of Pension Payment Order – He, instead, cleverly and silently kept on receiving amount knowing well that same was more than his actual entitlement – In such circumstance, decision of respondents to recover amount cannot be termed as iniquitous requiring this Court's interference – Application dismissed. (Paras 11, 12, 16, 21 to 25)
JUDGMENT :
1. Essential facts relevant for adjudication of the present case are not at all in dispute.
2. On attaining the age of superannuation, the petitioner retired as Junior Electrical Engineer, Electric Supply Division, Buxar under the erstwhile Bihar State Electricity Board with effect from 31.07.2002. The Bihar State Power (Holding) Company Limited (hereinafter referred to as 'the Company') is the successor body of the establishment from where the petitioner demitted his office on his retirement. His monthly pension was fixed at the rate of Rs. 6,480/- on the basis of his pay admissible to him as on the date of his retirement under the 5th Pay Revision. His monthly pension was revised with effect from 01.04.2007 at Rs. 14,645/- under 6th Pay Revision and a Pension Payment Order was accordingly issued on 04.11.2011. He, however, received monthly pension at the rate of Rs. 16,465/- per month instead because of a wrong entry. On introduction of 7th Pay Revision, the petitioner's monthly pension was revised treating his pension at the rate of Rs. 16,465/- per month instead of Rs. 14,645/- per month. This led to payment of pension to the petitioner in excess of what he was legally entitled to receive.
3. The Respondent-Company has taken steps to recover the amount from the petitioner's pension on monthly installment till the excess amount paid to the petitioner is fully recovered. It appears from the pleadings on record that the petitioner was getting pension of Rs. 46,572/- per month. It is his case that without any prior intimation, in the month of December 2019, a sum of Rs. 22,940/- was deposited in his pension account. It is his case that he learnt about the decision of the Respondent-Company to recover excess amount paid to the petitioner, because of which less amount of monthly pension was deposited in his account in December 2019, on the basis of information furnished to him by the Company under the Right to Information Act, 2005. The said action of the respondents to recover the amount paid to the petitioner in excess as monthly pension has been impugned in the present writ application.
4. I have heard Mr. Rakesh Kumar Sharma, learned counsel appearing on behalf of the petitioner and Mr. Vinay Kirti Singh, learned Senior Counsel representing the Respondent-Company.
5. Mr. Sharma, learned counsel appearing on behalf of the petitioner has placed reliance on Supreme Court's decision in case of State of Punjab and others vs. Rqfiq Masih(White Washer) and others reported in (2015) 4 SCC 334 [apparently incorrect citation of the case has been mentioned in paragraph-16 of the writ application as (2014) 8 SCC 883], in support of his contention that as the excess payment has been made for a period in excess of five years, recovery is impermissible in view of the directions issued in paragraph-18 thereof. He has argued that evidently the decision to recover the amount has been taken without giving the petitioner any opportunity of hearing, and, therefore, such action is in breach of the principles of natural justice. It is his contention that the petitioner did not play any role in payment of excess pension, over and above, what was sanctioned by the respondents and in the absence of any fraud or misrepresentation alleged against the petitioner, decision to recover the amount from the petitioner's pension is arbitrary, illegal, unreasonable and iniquitous.
6. Mr. Vinay Kirti Singh, learned Senior Counsel appearing on behalf of the Respondent-Company, on the other hand, has referred to Rule 202 of the Bihar Pension Rules, 1950 (hereinafter referred to as 'the Rules') which indisputably governs payment of pension to the petitioner and other employees of the Board/ Company to submit that in case the amount of pension granted to an employee is found to be in excess of that to which he is entitled under the Rules, he has to be called upon to refund such excess. Referring to the counter affidavit filed on behalf of the respondents, it h
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