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2018 Supreme(Mad) 1322
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. BHARATHIDASAN, J.
C.Jebamani - Petitioner
Versus
The Branch Manager, State Bank of India and Ors. - Respondent
Writ Petition (MD) No.19822 of 2014 and M.P(MD)No.1 of 2014 and W.M.P(MD)No.1395 of 2016
Decided on : 01-03-2018
Advocate Appeared:
For the Petitioner: Mr.K.Sureshkumar
For the Respondents: Mr.Pala.Ramasamy, Mr.A.Haja Mohideen
Headnote:
Indian Contract Act, 1872 – Section 72 – Recovery of excess amount of pension paid – Writ petition has been filed against the order passed by the second respondent for recovery of excess amount of pension paid to the petitioner. – Held, Basic principle laid down in all the above judgments is that if the amount paid in excess not due to the misrepresentation or fraud on the part of the employee but due to the mistake committed by the authorities, normally, it is not recoverable – Even though the employee cannot resist recovery as a matter of right but in equity, while exercising judicial discretion, the Court should see that the recovery is iniquitous or harsh and causing hardship to the employee, then the Court can exercise discretion and stop the recovery. – So far as the contention of the learned counsel appearing for the respondents 1 and 2 that it is contractual liability between the petitioner and the respondents 1 and 2 and the petitioner is bound to repay the amount paid in excess, if the respondents 1 and 2 claim that it is a contractual liability, their remedy is only before the Civil Court for recovery of the amount paid in excess and they cannot pass an order arbitrarily for recovery that too without any notice to the petitioner – In the above circumstances, the impugned order passed by the second respondent is liable to be set aside and accordingly, it is set aside – Second respondent is directed to refund the amount already deducted from the petitioners pension forthwith. – Writ Petition Allowed
1. This writ petition has been filed against the order passed by the second respondent for recovery of excess amount of pension paid to the petitioner.
2. According to the petitioner, he was working as Senior Ferro Printer at Engineering Department of Southern Railways, Madurai from 1972 to 2007 and retired on 31.08.2007. After retirement, he is getting pension as per the Pension Payment Order (P.P.O)No.0608213393 through the second respondent bank in his Savings Bank Account No.10828724463. Now, the second respondent is deducting a sum of Rs.2,500/- from his pension amount of the petitioner from May 2014. The second respondent, without issuing any notice to the petitioner and without conducting enquiry whatsoever has passed the impugned order. The only reason assigned in the impugned order is that there is an error in calculating the dearness allowance eligible to the petitioner and it is rectified now and except that no other particulars were given.
3. According to the petitioner, he is a senior citizen and he is suffering from various ailments and he is also having unmarried daughter and his entire family is depending on the meagre pension received by him and the recovery sought to be made only due to the mistake committed by the respondents 1 and 2 and not by the petitioner and if the amount is deducted, he and his family will be put to great hardship. In the above circumstances, the present writ petition has been filed.
4. The first and second respondents filed counter affidavit stating that the petitioner is one among the railway pensioners availing pension benefit through their Madurai Branch and the pension has been disbursed through his savings bank account. While depositing the pension, the dearness allowance payable to the petitioner was wrongly taken as Rs.5,480/- instead of Rs.2,431/- from 01.04.2011 and the excess amount of Rs.1,39,615/- was paid from 01.04.2011 to 30.04.2014 and after coming to know about the same, the respondents have advised the petitioner and demonstrated him about the excess amount but he did not reimburse the excess amount received by him. In the above circumstances, the deduction was made at the rate of Rs.2,500/-. Since the petitioner has given irrevocable authority to recover the excess amount due by way of letter of undertaking dated 04.12.2007, the bank is entitled to recover the same. Apart from that the excess amount has been inadvertently paid not from and out of the employer's money, namely, the Southern Railways but from the funds of the respondent bank they are only disbursing agent and it is against the Doctrine of Unjust and Enrichment. As per Section 72 of the Indian Contract Act, 1872, the money paid by mistake should be repaid and hence, the bank is entitled to recover the money which was paid from public deposits. Apart from that after given an undertaking affidavit before the respondent bank, now it is not open to the petitioner to maintain the present writ petition challenging the order passed by the second respondent.
5. It is further contended that the respondents 1 and 2 only disbursing agent and the excess amount is not paid by the employer and the amount has been paid from and out of the funds of the bank during the course of giving credit and no additional burden can be placed on disbursing authority, namely, the respondents 1 and 2. The bank has also not sought recovery of the entire amount by charging interest on the excess amount credited but they have ordered recovery of the excess amount paid by deducting 1/3rd from the pension amount in easy installments. Apart from that the petitioner is having alternative statutory remedy before the Railway Tribunal and without availing such remedy, the petitioner cannot maintain this writ petition.
6. The respondents 3 to 5 filed counter affidavit stating that after retirement of the employees, the railway administration will send original copy of the pension payment order to the concerned bank and the bank will remit the
