NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 2789 of 2015 1. [ENTITY] S/o Shri Niranjan Prasad Dubey Aged About 62 Years R/o Badra ( B) Police Station Patharia District Mungeli Chhattisgarh Petitioner Versus 1. [ENTITY] Through Secretary, School Education Department Mahanadi Bhawan, New Raipur District Raipur (Chhattisgarh) 2. [ENTITY] 3. [ENTITY] 4. [ENTITY] Respondent
For Petitioner Shri [ENTITY], Advocate For Respondent/State Shri [ENTITY], Panel Lawyer Hon'ble Shri Justice [ENTITY] Order On Board 16/09/2015
1. By this petition, the petitioner seeks quashment of the order Annexure P-3, whereby a sum of Rs.2,76,396/- has been recovered from him, after his reinstatement.
2. The petitioner retired as Headmaster from the Government Primary School Badra (B) on 31.12.2014. The recovery was made from him after his retirement.
3. Relying on the judgment of Supreme Court in [PRECEDENT], which has been followed by this court in the matter of [PRECEDENT], and [PRECEDENT], learned counsel for the petitioner would submit that recovery of excess payment cannot be made without giving any opportunity of hearing to the petitioner when payment has not been obtained by him by committing fraud or misrepresentation.
4. Learned State counsel has relied on judgment of Supreme Court in the matter of [ENTITY] and Ors. vs. State of Uttarakhand and Ors.4 to argue that recovery of excess payment of public money paid to an employee has to be made as the concept of fraud or misrepresentation is not applicable to such situation. According to the learned State Counsel, any amount paid/ received without authority of law can always be recovered.
5. In the matter Col. [ENTITY] (Retd.) V. Government of India and others5, the Supreme Court has held that restraining recovery back of excess payment is granted by the courts not because of any right in the employees, but in equity, in exercise 11995 Supp (1) SCC 18 22006 (1) MPHT 105 32010 (3) CGLJ 400 42012 AIR SCW 4742 5 [(2006) 11 SCC 709] : (2006 AIR SCW 5252) of judicial discretion, to relieve the employees from the hardship that will be caused if recovery is implemented with further observation that a Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, and relief was granted in that behalf.
6. In [ENTITY] and others vs. State of Bihar and others 6, the Supreme Court restrained the department from recovery of excess amount paid by holding thus :
"Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bonafide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in [PRECEDENT] excess to the appellants-teachers should be made."
7. While holding in [ENTITY] (supra) that any amount paid/ received without authority of law can always be recovered and the concept of fraud or misrepresentation is not applicable in such situation, the Supreme Court has clearly laid down the exceptions to the rule and the exceptions mentioned in the Judgment of Col. [ENTITY] (Retd.) (supra) and [ENTITY] (supra) has been referred with approval. One of the exceptions carved out by the Supreme Court in the matter of [ENTITY] (supra) is that where the beneficiary of excess payment has either retired or is on the verge of it, to avoid any hardship to such employees/teachers, the recovery was quashed.
8. In an extremely recent case, in the matter of State of Punjab & others Vs. [ENTITY] (Whitewasher) 7, the Supreme Court has taken a similar view holding thus in para 7:-
"7.In [ENTITY] case, a specific issue was raised and canvassed. The issue was whether the appellant therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that [SECTION] the excess payment is made by mistake or negligence, the excess payment so made could be recovered. While holding so this Court observed at paras 14 and 16 as under: ([CASE NUMBER]) "14. We are concerned with the excess payment of public money which is often described as 'taxpayers' money' which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
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16. The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that excess payment made be recovered from the appellant's salary in twelve equal monthly instalments "
9. Thus, in [ENTITY] (Whitewasher) (supra), also the Supreme Court did not differ with the earlier view in Col. [ENTITY] (Retd.) (supra) and [ENTITY] (supra) that any amount paid/received without the authority of law can always be recovered barring few exceptions of external hardships. Paras 10 & 11 of [ENTITY] (Whitewasher) (supra) are reproduced hereunder:-
"10. [SECTION] of the [ACT], confers a wide discretionary power on the Supreme Court to interfere in suitable cases. [SECTION] is a special jurisdiction and can be best described in the words of this Court in [PRECEDENT], " 14 It is a residuary power, it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself".
11. [SECTION] of the [ACT] was legislatively intended to be exercised by the Highest Court of the land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. [SECTION] of the [ACT] is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in [PRECEDENT], it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under
[SECTION] of the [ACT]."
[PRECEDENT]
10. In the matter of State of Punjab and Others Vs. [ENTITY] (White Washer) and Others10, the Supreme Court has held thus in para 18:-
"18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
11. In the present case also the steps for recovery of excess payment from the petitioner was initiated after his retirement.
[PRECEDENT]
12. Since the petitioner was not working on any gazetted post and was not a highly paid employee, the present case squarely fall within the exception carved out by the Hon'ble Supreme Court in the matters of [ENTITY] (Supra), [ENTITY] (Supra) and the second case of [ENTITY] (White Washer) (Supra).
13. For the foregoing, this Court has no hesitation in quashing the impugned recovery of Rs.2,76,396/- from the petitioner. The respondents shall refund the amount to the petitioner, however, the petitioner shall not be entitled to interest.
14. Accordingly, the writ petition is allowed to the extent indicated above.
JUDGE [ENTITY]