Sadanand Narnawre (Dr.) vs Reserve Bank of India

A.B. Chaudhari, J.—Rule. Rule returnable forthwith. Heard finally with the consent of learned Counsel for the parties.

Learned Counsel for the Petitioner, in support of the writ petition, contended that the recovery from Petitioner''s pension due to wrong fixation of his pension cannot be made in view of the fact that the Petitioner did not misrepresent the employer and there was no fault on his part. Though two installments have been recovered by the employer same are liable to be refunded and rest of the recovery is liable to be stopped. He relied on the decision in Shyam Babu Verma v. Union of India (1994) 27 ETC 121 and unreported decision of this Court in Chandrarao Balkirshna Sawant v. State of Maharashtra, W.P. No. 430 of 2005 decided on 23-6-2005. Mr. Jamal however fairly admits that the Petitioner was not entitled to the said amount under recovery of Rs. 27,888/- and that was in fact a mistake.

Per contra, Mr. Bhangde learned Counsel for the Respondent, argued that the pension case of the Petitioner was required to be reviewed in view of the clerical mistake committed by the concerned clerk in computing Petitioner''s pensionable service of 26 years when the same was infact 25 years and the said mistake was corrected. He then argued that the Petitioner is presently working as Professor of Law in the Post Graduate Department of Law in Nagpur University and is getting monthly salary of not less than Rs. 40,000/-. He submitted that when the Petitioner took voluntary retirement from the Respondent-Bank he received Rs. 11 lacs and therefore there is no element of hardship. He relied on the decision of Supreme Court in Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, . Learned Counsel for the Respondent stated that the Petitioner had given an undertaking that in case excess amount is found the Petitioner would not object to the recovery thereof.

We have heard learned Counsel for the rival parties. We have also gone through the judgments cited by the learned Counsel for the parties. There is no dispute that the computation of the pension could not be calculated on the basis of pensionable service of 26 years and the same could have been only 25 years. Thus the legal entitlement of the Petitioner was only for pension calculated on the basis of 25 years of service and that is why the amounts paid in excess could not be legally retained by the Petitioner. That apart, the Petitioner has nowhere averred about any hardship, and on the contrary the record shows that the Petitioner received Rs. 11 lacs when he got retirement voluntarily and is also now getting total emolument of Rs. 50,000/- per month. Recovery of Rs. 27,888/- can therefore be well justified. The said payment made to him was never made during a long period. Para 27 of the judgment of Supreme Court in Col. B.J. Akkara, supra, reads as under:

The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-6-1999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director):

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.

(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

In Syed Abdul Qadir and Others Vs. State of Bihar and Others, , the Apex Court has had to say thus:

"The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. [See Sahib Ram Vs. State of Haryana and Others, , Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, , Union of India v. M. Bhaskar (1996) 4 SCC 139 , V. Gangaram Vs. Regional Joint Director and others, , Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, , Purshottam Lal Das and Others Vs. The State of Bihar and Others, , Punjab National Bank and Others Vs. Manjeet Singh and Another, and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. .]

In the light of the ratio of the above judgments and the case at hand, we deduce the following propositions -

(a) There is whatsoever no right in the employees to retain the excess amount paid to them by the employer due to mistake or by applying a wrong principle or rules or regulations for calculating pay/allowances/pension etc. or on the basis of a particular interpretation of rule/order etc. which is subsequently found to be erroneous;

(b) where the employee had full knowledge that the payment received by him was in excess of what was due or wrongly paid to him;

(c) where the employee had given an undertaking to refund any excess payment made to him if found in future;

(d) where the error is detected or corrected within a short time of wrong payment, the Court would not stop the recovery being made.

(e) However, where the Court is satisfied about the hardship that will be caused due to recovery, the matter being in the realm of judicial discretion, Courts may on facts and circumstances of a particular case, in equity, make a suitable order regarding recovery, except in a case where employee made a misrepresentation or fraud.

In view of the above legal position, we find no substance in the present writ petition and the same is dismissed.