The main legal point established in the judgment is the application of principles of natural justice and the limitations on an employer's right to recover excess salary paid to an employee, as summarized in the case of State of Punjab and others Vs. Rafiq Masih and others.

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 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 24.02.201