Laxmi Bai vs State Bank Of India & Another

Debangsu Basak, J

The petitioner has assailed the action of State Bank of India (SBI) in freezing a savings bank account of the petitioner and seeking to recover the allegedly overpaid pension amount from the petitioner

Learned advocate appearing for the petitioner has submitted that, the petitioner is enjoying family pension after the death of the husband of the petitioner The petitioner has a pension account with SBI, Aberdeen Bazaar Branch The petitioner was receiving family pension at the rate of Rs 14,540/- till the month of June 2017 On and from the month of August 2017, SBI started deducting an amount Rs 3,200/- from the account of the petitioner The SBI did not issue any notice before deducting such amount When the petitioner contacted SBI, it was informed by SBI that, SBI was recovering an excess payment of Rs 1,96,338 17 made by SBI to the petitioner in the year 2006 Thereafter, SBI stopped the payment of family pension from the month of December 2017 and also froze an amount of Rs. 1,96,338 17 available in the account of the petitioner Despite representations SBI did not take any action.

Learned advocate appearing for the petitioner has relied upon (2015) 4 Supreme Court Cases 334 (State of Punjab and others vs Rafiq Masih (White Washer) and others) in support of the contention that, when, an employee is not at fault and particularly when such employee belongs to the economically weaker section of the society, then, the overpayment cannot be realized In the present case, according to the learned advocate appearing for the petitioner, there was no fault on the part of the petitioner The petitioner did not suppress any material fact Therefore, SBI should not realise the alleged overpayment He has sought suitable relief for the petitioner

Learned advocate appearing for SBI has submitted that, the Pension Payment Order of the petitioner did not contain the age of the petitioner Since the Pension Payment Order did not contain the age details of the petitioner, SBI acting bona fide credited the age benefits of the petitioner in terms of the government order The same was done by mistake The petitioner was not entitled to the age benefits given by SBI Upon discovery of such fact, SBI proceeded to realise the overpayment amount The SBI is realising the overpayment amount by instalments of Rs 3,453/- He has submitted, initially a sum of Rs 3,200/- was being deducted monthly from the family pension receivable by the petitioner Subsequently, upon the family pension being enhanced, SBI is deducting at the rate of Rs 3,453/- As on date, a sum of Rs 1,59,422/- remains overpaid by SBI to the petitioner which the petitioner is liable to refund.

In reply, learned advocate appearing for the petitioner has submitted that, the petitioner has a fixed deposit worth Rs 4,94,455/- SBI cannot claim any right over such fixed deposit He has submitted that, all freeze on every bank account of the petitioner should be removed and the bank be directed not to realise the allegedly overpaid amount on account of pension.

The writ petition was considered from time to time By an order of July 18, 2019 considering the factual matrix of the present case, the Court directed that the bank should file a supplementary affidavit indicating in details the quantum of excess payment made to the petitioner, the time when such excess payment was first made and the amount that has been adjusted thus far It was also directed that the affidavit of SBI should indicate the amount of excess payment that has not been adjusted yet and the manner in which the bank proposes to adjust such excess payment.

Subsequent to the order dated July 18, 2019, SBI filed an affidavit The same was allowed to be dealt with by the petitioner by filing a rejoinder thereto The petitioner filed a rejoinder to the supplementary affidavit of SBI In the supplementary affidavit SBI disclosed the quantum of amount overpaid to the petitioner It justified its overpayment on the ground that, for central government pensioners, the quantum of additional pension/family pension available to the pensioners/family pensioners attaining 80 years of age and above must be increased in the manner stipulated by the government with effect from January 1, 2006 SBI paid the enhanced family pension in terms of such direction of the government considering the petitioner to be 80 years and above The Pension Payment Order of the petitioner, however, did not disclose the age of the petitioner Consequently, SBI fell into an error in treating the petitioner of an age beyond 80 years and paying the family pension at the enhanced rate Upon SBI discovering such mistake, SBI took steps for the purpose of recovery of the excess payment in terms of a circular of the Reserve Bank of India dated March 17, 2016 The supplementary affidavit of SBI filed pursuant to the order of the Court, gives the details of the excess payment, the calculation of the excess payment, the quantum already realised and the quantum left to be realised, and the manner and mode in which the balance is to be realised.

Although, the petitioner filed a counter to the supplementary affidavit of SBI, the petitioner did not place any material to dispute the computation made by SBI.

On the date of the hearing of the writ petition, learned advocate for SBI has informed the Court that, a sum of Rs 1,59,422/- remains to be recovered from the petitioner and that, SBI is recovering such sum at the rate of Rs 3,453/-per month.

Rafiq Masih (supra) has considered a factual scenario where, the employer made a mistake in calculating the pension receivable by the employee In the facts of that case, Supreme Court has found that, the employee was not at fault in the employer making a wrong calculation and making excess payment It has held that, payments made in excess by the employer, should not be allowed to be recovered from employees belonging to class III and class IV groups or from retired employees or employees who are due to retire within one year of order of recovery, or from employees to whom excess payment has been made for a period in excess of five years before order of recovery is issued, or where employee is wrongfully required to discharge duties of higher post and has been paid accordingly and in any other case, where Court concludes that recovery if effected from employee would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh equitable balance of employer's right to recover.

The factual scenario in the present case is different SBI in the facts of the present case is not the employer SBI is a banker with whom the petitioner has maintained a pension payment account SBI has erroneously credited the pension account of the petitioner with extra amount The relationship between the petitioner and SBI is that of a customer and a banker In such relationship, the banker is entitled to recover any excess payment made to its customer, from the customer The banker also has a right of lien over funds coming into the hand of the banker in its usual course of business in respect of any outstanding that the customer has towards such banker Therefore, the ratio laid down in Rafiq Masih (supra) is not attracted in the facts of the present case.

SBI having disclosed the quantum of excess payment made to the petitioner on account of family pension and having justified its conduct in seeking to recover the overpayment from the petitioner, the action taken by the SBI cannot be said to be tainted with any illegality, perversity, arbitrariness or colourable exercise of power warranting interference under Article 226 of the Constitution of India. In the facts of the present case, in my view, interest of justice would, however, be sub served by requiring SBI to claim a right of lien to the extent of Rs. 1,59,422/- from out of the fixed deposit of Rs. 4,94,455/- lying with SBI in the name of the petitioner till the entire overpayment made by SBI to the petitioner is recovered. SBI is at liberty to recover the overpaid amount at the rate of Rs. 3,453/- per month from the petitioner. In the event of enhancement of the family pension subsequently, SBI is at liberty to realise the overpaid amount at a higher monthly rate in accordance with the relevant circular of Reserve Bank of India. Immediately upon recovery of the entire overpaid amount, SBI will issue a no lien on the fixed deposit belonging to the petitioner or any other account of the petitioner.

With the aforesaid directions, WP No. 306 of 2018 is disposed of. No order as to costs.

Urgent website certified copy of this order, if applied for, be given to the parties upon compliance of usual formalities.