Vaijanti Mala v. Union of India

1. The petitioner in the instant petition has prayed for the following relief:- “A) To issue a writ of mandamus or any other appropriate writ as deemed necessary by this Hon'ble Court thereby directing the respondents to release the amount standing in her bank account keeping in view the aforesaid facts as also in the interest of justice. B) To directed the respondents for payment of Rs.25,000/- as cost of legal expenses incurred by the petitioner. C) To pass such other and further order/ orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”

2. The case of the petitioner appears to be that she is in receipt of the family pension after the demise of her husband. Upon realising that certain amount was being deducted from the total pension amount without the respondent-Bank giving any notice to her, she tried to contact the officials of the respondent-Bank. Since the same was not explained satisfactorily by the concerned officials, therefore, she has been constrained to approach this court in the instant petition.

3. In terms of the order dated 09.10.2018, this court had restrained the respondent-Bank from effecting any further recovery from the family pension. When the respondent-Bank is called upon to explain as to why the recovery is still being effected, it is submitted that an excess payment of [3] pension amounting to Rs.2,89,461/- has been paid to the petitioner on account of some inadvertence of the officials of the respondent-Bank, and as per the undertaking given by the petitioner, the excess amount is being recovered.

4. Learned counsel appearing on behalf of the respondent-Bank, while placing reliance on a decision of the Hon'ble Supreme Court in the case of High Court of Punjab & Haryana v. Jagdev Singh,[1] submits that if there was an undertaking by the petitioner for allowing the respondent-Bank to recover any excess payment, the petitioner cannot challenge the said recovery.

5. Learned counsel appearing on behalf of the petitioner, however, states that the petitioner is not at fault for the action of the bank in releasing the excess payment in her account. Learned counsel also explains that if the facts are perused, the same would indicate that there was no excess payment and no inquiry has been conducted into the matter.

6. I have considered the submissions made by learned counsel for the parties and perused the record.

7. The undertaking submitted by the petitioner, which was relied upon by the respondent-Bank reads as under:- "In consideration of your having at my request agreed to make payment of pension due to me every month by credit to my account with you, I, the undersigned agree and undertake to refund or make good my amount to which I am not entitled or any amount which may be credited to my account in excess of the amount to which I am or would be entitled. I further hereby undertake and agree to bind myself and my heirs, successors, executors and administrators to indemnify the bank from and against any loss suffered or incurred by the bank in so crediting my pension to my account under the scheme and to forthwith the same to the bank and also irrevocably authorize the bank to recover the amount due

8. A cursory perusal of the undertaking indicates that the petitioner appears to be an illiterate lady since she has placed her thumb impression. There is no mention in the undertaking as to whether; the contents of the undertaking were explained to her in her mother tongue. Admittedly, the alleged undertaking is in English language.

9. It cannot be expected that an illiterate lady would have understood the context and meaning of such an undertaking. It is thus, seen that the same cannot be considered to be an undertaking, enabling the respondent-Bank to recover any excess amount, if paid inadvertently.

10. The Hon'ble Supreme Court in the case of High Court of Punjab & Haryana (supra) in paragraph nos.11 and 12 has held as under:-

11. A reading of the said decision rendered by the Hon'ble Supreme Court indicates that once the officer furnishes an undertaking while opting for the revised pay scale, he/she is bound by the same. The same is not applicable in the instant case as, firstly, the petitioner is not an employee. She is an illiterate pensioner. Secondly, owing to her non-understanding of the same, the present undertaking cannot be said to be an undertaking in the eyes of [5] law. The doctrine of non est factum, squarely applies in the present case. The Hon'ble Supreme Court, in the case of 'Bismillah v. Janeshwar Prasad'2 has elaborated upon the said doctrine, in the following terms:

12. Upon consideration of the fact that the petitioner is an illiterate woman who could not have understood the meaning of the undertaking, without having been explained the content of the same, it is seen that the undertaking cannot be considered as a valid document.

13. It is for this reason, the impugned decision of recovery being effected by the respondent-Bank is set aside.