The main legal point established in the judgment is that the relationship between the petitioner and the bank was not that of employer and employee, and therefore, the law cited by the appellant was not applicable. The recovery of the excess payment proposed by the bank was held to be legal.

Judgment

SHANTANU KEMKAR, J.:-

Heard on the question of admission.

By filing this intra Court appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellant has challenged the order dated 29-3-2012 passed by the learned Single Judge of this Court in Writ Petition No. 7008/2010.

2. Briefly stated, the appellant/writ petitioner filed the aforesaid writ petition challenging the recovery of excess payment of Rs. 87,239/- sought to be made by respondents No. 1 and 2 Bank. The contention of the appellant before the writ Court was that the excess payment was made to her was not on account of any fault or fraud on her part, and therefore, in view of the law laid down by the Supreme Court in the case of Shy am Babu Verma vs. Union of India, 1994 SCC (L and S) 683, the recovery, after retirement, cannot be ordered.

3. The respondents filed reply to the petition. The respondents No. 1 and 2-Bank in its reply had stated that excess amount of family pension was erroneously credited in the petitioner's saving bank account. According to the respondent-Bank, the petitioner was not entitled for the amount, which has been credited by the Bank to the petitioner's account. The payment was made in excess to her entitlement, as sanctioned to by the State Government in the Pension Payment Order. In the circumstances, according to the respondent-Bank, the amount, which is sought to be recovered, is not having any bearing about the master and servant relationship, but is a pure dispute of civil nature between the banker and its customer.

4. The case of the respondents No. 3, 4 and 5/State was that as per the Madhya Pradesh Pension Rules, 1976 any retired government servant is entitled for full pension till he attains the age of 67 years or till seven years from his death, whichever is earlier. In the present case, the petitioner's husband was retired on 31-12-2001 and died on 26-1-2003. As per the relevant Rules, he was entitled for full pension till 9-1-2008 and thereafter, the petitioner wife of the deceased employee was entitled to get family pension to the extent of amount, which is less than the full pension. However, due to the mistake of respondent-Bank, the petitioner was continued to be paid more amount than her entitlement, which resulted in excess payment.

5. Taking into consideration the aforesaid averments made in the petition, amended petition, reply and rejoinder, learned Single Judge dismissed the writ petition holding that the relationship between the writ petitioner and respondents No. 1 and 2 is not of the employer and the employee, but the relationship is of banker and the customer, and therefore, the law laid down by the Supreme Court in the case of Shyam Babu Verma (supra) is not applicable.

6. Having gone through the aforesaid order as also the orders passed by the Single Judge of this Court in the case of Ratan Bai vs. State of M. P. and others, Writ Petition No. 3730/2009 (s) decided on 22-3-2010 reported in 2010(5) MPHT 125, we are of the view that the appeal deserves to be dismissed.

7. It is not in dispute that at no point of time, there was any order passed by the State Government to fix the petitioner's pension at the rate at which it was paid by the respondents No. 1 and 2 Bank after 9-1-2008. In the circumstances, if the respondent-Bank has paid the excess amount of family pension than the amount payable to the appellant/writ petitioner as per the Pension Payment Order, the appellant cannot be allowed to get the benefit of the said mistaken excess payment made by the Bank. Therefore, the judgment passed by the Supreme Court in the case of Shyam Babu Verma (supra) has got no application to the facts of the present case. The appellant/writ petitioner cannot be allowed to take benefit of mistake occurred on the part of the respondent-Bank. Thus, the recovery of the excess payment proposed to be made by respondents No. 1 and 2-Bank cannot be said to be illegal.

8. As a result,