IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 95 of 2007 Date of decision : 8.12.2011 The Branch Manager, Punjab National Bank, Jahu, Tehsil Bhoranj, District Hamirpur (H.P.) … Appellant (Respondent) Versus 1. Smt. Sita Devi wd/o late Shri Bhup Singh R/o Village Barot, P.O. Baldwara, Tehsil Sarkaghat, District Mandi (H.P.) 2. Shri Kushal Kumar S/o late Shri Bhup Singh, R/o Village Barot, P.O. Baldwara, Tehsil Sarkaghat, District Mandi (H.P.) 3. Shri Kamlesh Kumar S/o late Shri Bhup Singh R/o Village Barot, P.O. Baldwara, Tehsil Sarkaghat, District Mandi (H.P.) … Respondents/Petitioners 4. The Treasury Officer, Hamirpur (H.P.) 5. The Deputy Accountant General, Office of the Accountant General, H.P. Shimla. 6. The Accountant General, Accounts and Entitlements, Haryana, Plot No. 4 and 5, Sector 33-B, Chandigarh. 7. The Commandant, 5th Battalion, Haryana Armed Police, Madhuban (Haryana). 8. The State of Haryana, through its Home Secretary, Civil Secretariat, Chandigarh (UT). Letters Patent Appeal under clause 10 of the Letters Patent as applicable to the High Court of Himachal Pradesh against the judgement dated 11.6.2007 passed by the Hon’ble Single Judge in CWP No. 481 of 2001 titled Smt. Sita Devi and others vs. Branch Manager, PNB and others whereby the Hon’ble Single Judge has allowed the writ petition filed by the respondents No. 1 to 3 by setting aside and quashing Annexure P-10 dated 5.2.2001 and Annexure P-11 dated 29.3.2001 and further directing the Respondent Nos. 2 to 6 in the CWP to release the family pension in favour of Petitioner No. 2 and 3 and further directing the respondent Nos. 5 and 6 to refund a sum of Rs.58,103/- to the petitioners. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 No. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 For the Appellant: Mr. Ajay Kumar, Advocate. For the Respondent 1 to 3: Mr. Pawan Gautam, Advocate. For the Respondents NO. 6 to 8: Mr. Ajay Chandel, Advocate. Per Deepak Gupta, J. (Oral) 1. A writ petition was filed by Smt. Sita Devi and her sons Kushal Kumar and Kamlesh Kumar claiming that Sita Devi was the lawfully wedded wife of Shri Bhup Singh and after the death of Shri Bhup Singh she and her sons were entitled to the family pension on account of the services rendered by Shri Bhup Singh with the Haryana Armed Police. 2. Bhup Singh was an employee of the Haryana Police and at the time of his retirement he was posted in the 5th Battalion of the Haryana Armed Police. There is no dispute that Kushal Kumar and Kamlesh Kumar are his sons. Smt. Sita Devi was admittedly the wife of Shri Bhup Singh but she was his second wife and had married Bhup Singh in the year 1975 when his first wife Smt. Jasoda Devi was still alive. Therefore, obviously the second marriage was illegal being against the provisions of the Hindu Marriage Act and as such her marriage could not be held to be legal and valid marriage. However, as per the pension Rules, the children born from such an illegal marriage are entitled to get family pension and therefore, the learned Single Judge rightly held that Kushal Kumar and Kamlesh Kumar are entitled to pension. 3. However, in this appeal we are concerned with an entirely different issue. The stand of the appellant-Bank is 3 that when revision of pay scales and pension took place in the year 1986 some clerk of the Bank wrongly calculated the amount of pension due and payable to Bhup Singh and an excess amount of Rs.1,50,771/- was paid to Shri Bhup Singh. At the time when the account was opened Bhup Singh had given an undertaking that in case any excess amount is paid to him the same can be recovered from him. Bhup Singh died on 15th July, 1999. It appears that thereafter on 13th November, 1999 the office of the Accountant General (A & E), Haryana sent a letter to the PNB as well as to the Deputy Accountant General, H.P. that an amount of Rs.1,50,771/- had been paid in excess to Shri Bhup Singh due to wrong fixation of pension w.e.f. 1.1.1986 to 31.8.1998. Bhup Singh admittedly had an FDR in the bank and the bank after exercising its right of lien adjusted a sum of Rs.58,163/- payable on account of the FDR. According to the bank even now an amount of Rs.81,200/- is recoverable from the estate of late Shri Bhup Singh. This amount was sent by the Bank to the State of Haryana. 4. The bank sent a communication annexure P-8 to Smt. Sita Devi on 17.11.2000 asking her to remit the balance amount of Rs.81,200/- paid in excess in the account of Shri Bhup Singh. Another letter in this regard was again issued to her on 29.3.2001. The learned Single Judge has quashed these letters. The Bank is aggrieved by the quashing of these 4 letters. We find that in the judgement, the learned Single Judge has not given any finding as to whether any payment in excess had been paid to Sh. Bhup Singh or not. As far as the recoveries made by the Bank are concerned, the learned Single Judge held that there was no material on record to show that any notice was issued to the petitioners. This is patently erroneous since annexure P-8 is a letter addressed to one of the petitioners asking them to pay the amount of Rs.81,200/-. No further notice was required to be given. However, the concluding part of the judgement of the learned Single Judge reads as follows:- “The upshot of the above discussion is that Annexure P-10 dated 5.2.2001 along with Annexure P-11 dated 29.3.2001 are liable to be quashed and set aside. Consequently, the writ petition is allowed. Annexure P-10 dated 5.2.2001 and Annexure P-11 dated 29.3.2001 are quashed and set aside. The respondents No.2,3,4,5 and 6 are directed to release the family pension in favour of petitioners No.2 and 3 by working out the arrears of pension with interest at the rate of 12% per annum. The respondents No.5 and 6 are also directed to refund a sum of Rs. 58,103.00 to the petitioners. It is clarified that the petitioners No.2 and 3 will be held entitled to the family pension till they had attained the age of 25 years. The compliance of the above directions be made by the respondents within a period of 8 weeks from the date of receipt of certified copy of this judgment.” 5. There is no direction to the Bank to repay the amount. The learned Single Judge has earlier noticed that sum of Rs.58,163/- which was recovered was paid by the Bank to the 5 State of Haryana. There is no direction to the Bank to pay or refund any amount. In case there is an excess payment of an amount of pension due to the mistake of an official of the bank, merely because the pensioner has died does not mean that the bank cannot recover the amount paid in excess. However, this amount can only be recovered from the estate, if any, left by Bhup Singh and not from the legal heirs as a matter of right. Therefore, the direction of the learned Single Judge quashing annexures P-10 and P-11 is set-aside and the Bank can take steps to recover the amount from the estate of Bhup Singh in accordance with law. Needless to say, the heirs of Bhup Singh may contest their claim, if filed, on all grounds. 6. Shri Ajay Chandel, learned counsel for respondents No. 6 to 8 submits that in view of the findings given by us above the direction given to respondent No.5 to refund the amount be also set-aside. We cannot accept this submission since despite specific directions the State of Haryana did not choose to file any appeal against the judgement of the learned Single Judge. The appeal is accordingly disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ) Judge. 8th December, 2011. ( V.K.Ahuja ) ™ Judge.