Sayed Abdul Malik vs State Bank Of India & Ors

The matter was appearing as item no. 1133 in the Combined Monthly List of May, 2019. On 13th May, 2019 the petitioner appeared in person and mentioned the same for upgradation. Considering the fact that the petitioner is a fairly aged person travelling all the way from Malda to Kolkata to get his matter heard, I directed the matter to appear in the supplementary list on 15th May, 2019 under the heading "Hearing". The petitioner was directed to intimate the order to the learned advocate appearing on behalf of the respondents.

As the learned advocate for the respondent bank was not readily available due to the ongoing cease work of the learned advocates, the petitioner intimated the order to the respondent bank by a letter dated 13th. May 2019. The bank received the letter on the same day by putting their official seal and signature. The petitioner has also served a copy of the letter upon the State Bank of India, Harishchandrapur Branch, District- Malda by speed post. Copy of the letter showing service upon the respondent bank is already on record.

The petitioner submits that a considerable sum is deducted from his pension account every month by the bank. The said deduction is causing severe hardship to the petitioner and his family members. The petitioner and his wife are fairly aged and suffering from various old age ailments. The money is required for their medical expenses. In view of such submission I feel it expedient to allow the petitioner to move the matter in person, in the absence of the learned counsel appearing for the respondent bank. However, the affidavit in opposition filed on behalf of the respondent bank is taken into consideration for ascertaining the stand of the respondents.

Shorn of unnecessary details the case of the petitioner is as follows:

The petitioner was appointed as Assistant Sub-Inspector of Police under the Kathiyar Division, Northern Frontier Railways on 22nd June, 1964. He retired on superannuation on 30th April, 2004. By the Pension Payment Order (PPO) dated 30th April, 2004 the Divisional Finance Manager, Northern Frontier Railway, Kathiyar intimated the Manager of the State Bank of India, Malda Main Branch regarding disbursement of pension in favour of the petitioner through Public Sector Bank. The pension payment papers of the petitioner were forwarded along with the said letter. On expiry of every month the petitioner was to receive the sum of money as mentioned in the PPO along with the amount of dearness relief as admissible from time to time. The pension was payable on and from 1st May, 2004. The petitioner all along received the pension from the bank and the said system continued till November, 2015.

By a communication dated 22nd December, 2015 the Branch Manager of the Harishchardrapur Branch of the Bank intimated the petitioner that a sum of Rs.4,12,928/- as on November, 2015 had been paid in excess of his normal pension as per the information received from the Centralised Pension Processing Centre, Kolkata. The petitioner was requested to refund the said amount within a period of seven days from the date of receipt of the letter failing which legal courses may be explored against him. It was also mentioned that the Bank was ready to extend support by sanctioning a pensioner's loan in his favour in case all the formalities have been duly complied by the petitioner to avail the said loan.

The said letter was issued in favour of "Mr. Abdul Malik" and the Railway Pensioner Account Number was mentioned as "11651975204". Be it mentioned that the PPO was issued in favour of "Sayed Abdul Malik" and the Pension Account Number was "01190040699".

By a letter dated 26th October, 2017 the petitioner was informed that the bank was deducting Rs.3,500/- per month from his pension account on account of recovery of the excess pension paid in his favour. As per the extant guidelines of recovery, 1/3rd of monthly pension received by the pensioner was fixed as monthly instalment. Since the quantum of monthly pension had been increased the amount of deduction was also enhanced at Rs.4,552/- keeping parity with the Government directive. The petitioner was further requested to liquidate the Government dues at the earliest by paying the outstanding amount in one lump sum basis.

By a letter dated 10th February, 2018 the petitioner through his learned advocate objected to the recovery of the said amount. As there was no response from the bank the petitioner filed the instant writ petition praying for a direction upon the bank to disburse actual and regular pension amount month by month without any deduction in his favour.

The petitioner submits that he received pension since May, 2004 and he was not aware of any excess payment that had been made in his pension account. He fairly submits that he withdrew money every month from his pension account for his expenditure for running his family. He submits that he utilised the money that was credited in his favour with the firm belief that the same was his legal due. He submits that he is no way responsible for the said excess payment and the same ought not to be recovered from his account as he has been enjoying the same for a considerable period of time.

The petitioner relies upon a decision delivered by the Hon'ble Supreme Court of India in the case of Sayed Abdul Qudir & Ors. -vs-The State of Bihar & ors. reported in (2009)3 SCC 475.

In the affidavit in opposition that has been filed by the respondent bank it has been mentioned that "excess payment was made to the petitioner from 1st January, 2006 to January, 2015." It was further mentioned that "the excess payment has been on account of consideration of erroneous basis in course of conducting petitioner's pension payment at Centralised Pension Processing Centre, Kolkata for the aforesaid period. The excess payment was deducted from the pension account of the petitioner in compliance with the guidelines issued by the Reserve Bank of India being RBI/2015-16/340, DGBA GAD No. 2960/45.01.001/2015-16 dated 17th March, 2016".

In the said opposition it is alleged that the petitioner was not an illiterate person and he held a responsible post during his service. He was all along aware about the amount of pension to be received by him on retirement he was also aware that he was receiving excess amount in his pension account. The petitioner enjoyed the excess amount with full knowledge and is presently opposing the recovery of the excess payment received by him. The petitioner never intimated the bank or his employer regarding the excess payment received by him. The petitioner being a citizen of India did not have any honest intention. Every citizen of India is duty bound to act honestly and cooperate with the Government authorities. The Government authority pays pension to the pensioners from the public funds. There is no letter written by the petitioner to the respondents for deduction of lesser amount due to his financial hardship. The bank was deducting the excess sum in discharge of public duties fairly with responsibility. Recovery of excess payment is the legal right of the respondents. The petitioner cannot use his age to shield his dishonest intention. The petitioner cannot get any protection under Article 300A of the Constitution of India. The prayers made by the petitioner do not have any legal basis and the writ petition is liable to be set aside.

The bank relied upon an unreported order/judgment delivered by a learned single Judge of this Court on 2nd January, 2019 in WP No. 328 (W) of 2017 (Shri Murari Mohan Das -vs- Union of India & Ors.).

Upon perusal of the records of the case it appears that the petitioner retired from service on 30th April, 2004. He became a pensioner on and from 1st May, 2004. His pension was disbursed through the State Bank of India, Harishchandrapur Branch. From the month of May, 2004 till November, 2015 the petitioner received his pension. By a letter dated 22nd December, 2015 the petitioner was informed that an amount of Rs.4,12,928/- has been paid in excess to his normal pension. In the affidavit in opposition filed by the bank it has been mentioned that the excess payment was made to the petitioner from January, 2006 to January, 2015. This implies that from May, 2004 till December, 2005 the petitioner received his pension as per his legal entitlement.

The PPO of the petitioner mentioned that the petitioner will receive his pension along with dearness relief as admissible from time to time. It may not be possible for a pensioner to ascertain the proper figure of his pension along with admissible dearness allowance that he is entitled to receive. It is not unusual for a pensioner to believe that the money that has been credited in his pension account was paid under proper verification and he was legally entitled to the said sum. It is also not uncommon for a pensioner to withdraw the money that is deposited in his pension account for running his family and for other expenses. The petitioner very candidly submits before the Court that he has withdrawn all his money from the pension account for his personal use, family necessities and for medical expenses. He has stated that apart from pension he does not have any other source on income. He has withdrawn the money on the firm belief that it was his money and he was legally entitled to enjoy the same as per his requirement.

Apparently there is nothing wrong on the part of a pensioner to withdraw the money that was credited to his pension account. According to the bank, excess payment was made in favour of the petitioner for a considerable period of time, and that is the reason that a huge sum of Rs.4,47,928/- got accumulated as excess payment in favour of the petitioner. The bank admits that due to erroneous calculation the excess payment was made in his favour.

If the bank deposits excess amount in the pension account of a pensioner then should the pensioner be allowed to suffer for the mistake committed on the part of the bank employee? Why should the pensioner be directed to refund the excess amount on lump sum basis due to miscalculation on the part of a bank employee? The alleged erroneous calculation continued for a period of ten years, resulting in accumulation of a huge sum. The pensioner had enjoyed the sum thinking it to be his own entitlement and have got used to a particular standard of life. Now, all on a sudden after a period of twelve years can the pensioner be directed to refund the said payment on the ground that the sum was credited in his account by mistake? Can the said excess payment be considered as a Government due? Does the mistake committed for a continuous period of ten years reflect a semblance of sanctity? Was it not the duty of the bank to check and verify the amount that a pensioner is legally entitled to get? Will it not be dereliction of duty on the part of the bank for making excess payment due to wrong calculation? Will not the bank be accountable for negligence? Will the bank not be allowed to rectify the mistake committed by them? Can a pensioner be permitted to enjoy money beyond his entitlement? Is he not bound to refund the excess amount?

The Hon'ble Supreme Court in various judgments has held that if the excess payment was not on account of any misrepresentation or fraud or if the excess payment was made by applying a wrong principle then the employer was not entitled to recover the same. The relief was granted not because of any right of the employees but to relieve the employees from the hardship that will be caused if recovery is ordered.

There are contrary judgments also which mention that recovery of excess payment is not a bar as the same being public money would result in undue enrichment which the pensioner is legally not entitled to receive.

The petitioner retiring as a sub inspector of police ought to know the amount of pension that he was legally entitled to receive. He also did not check his pension account and merrily enjoyed the money credited in his favour.

The decisions of the Supreme Court arise from an employer and employee relationship. In the instant case the status of the parties are different. Apart from the fact that the petitioner holds a pension account in the bank there is no further relationship between the parties. The relationship is strictly restricted between a bank and its customer.

The bank was very well aware of the amount which the petitioner was entitled to receive on account of pension as well as his dearness relief. In fact, the bank admits that the petitioner had been properly paid his pension from May, 2004 till December, 2005. Mistake was committed in January, 2006 and the same perpetrated till December 2015. How and who was responsible for the said mistake is not disclosed.

The queries made herein above cannot be answered in the absence of the learned counsel appearing for the parties. As the petitioner submits that he is passing through severe financial crisis due to huge deduction every month accordingly as an interim arrangement the bank is restrained from deducting the excess amount @ Rs. 4,552/- per month but will deduct @ Rs. 3,500/- per month till 30th August, 2019 or until further order, whichever is earlier. The balance of convenience and inconvenience rests entirely prejudice and disadvantage faced by the petitioner will far outweigh the advantage of the bank.

Let the matter appear for further hearing in the combined monthly list of June, 2019.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.