IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.01.2009 CORAM THE HONOURABLE MR. JUSTICE D. MURUGESAN and THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN Writ Appeal Nos.781 to 786 of 2003 and W.A.M.P.Nos.954 to 959 of 2003 M.A.Vadamalai Raju ... Appellant in W.A.No.781 of 2003 The General Insurance Employees Union, rep. by its Organising Secretary M.Karthikeyan Southern Zone, SIET Buildings, 317, Anna Salai, Madras 600 018. ... Appellant in W.A.No.782 of 2003 V.Navaneetha Krishnan ... Appellant in W.A.No.783 of 2003 B.Sounder ... Appellant in W.A.No.784 of 2003 K.Marimuthu ... Appellant in W.A.No.785 of 2003 P.Easwaran ... Appellant in W.A.No.786 of 2003 Vs. 1.General Insurance Corporation of India 170-J, Tata Road, Church Gate, Mumbai 400 020. 2.The New India Assurance Company Limited, rep. by its Chairman & Managing Director, 87, Mahatma Gandhi Road, Fort, Bombay 400 001. 3.The Assistant General Manager, New India Assurance Co. Ltd., Spencer's Towers, 3rd Floor, 770-A, Anna Salai, Chennai 600 002. .. Respondents in all the writ appeals https://hcservices.ecourts.gov.in/hcservices/ Writ Appeals under Clause 15 of Letters Patent, praying to set aside the Order dated 22.11.2002 made in W.P.Nos. 5169, 5397, 5445, 5530, 5787 and 9871 of 1996. W.P.5169/96, 5530/96, 9871/96:- Writ of certiorari calling for the recrds on the file file of the respondents in refixing the basic pay vide letter dated 2.4.96 and the same as illegal unconstitutional without jurisdiction and contrary to the scheme of revision of Salary. W.P.5397/96, 5445/96, 5787/96:- Writ of declaration declaring that the action of the respondents is refixing the basic pay ignoring the revised option exercised pursuant to the first amendment scheme of General Insurance (Rationalisation of Service of Supervisory Clerical and Subordiante Staff) Amendment Scheme 1985 as illegal unconstitutional without jurisdiction and contrary to the Scheme of revision of salary. For Appellant in the : Mr.Sethuraman respective writ appeals For Respondents in all : Mr.P.Sukumaran for R3 the writ appeals COMMON JUDGEMENT (Judgement of the Court was delivered by D.MURUGESAN, J.) These Writ Appeals relate to a common issue as to, whether the option exercised by the appellant in the respective writ appeals for fixation of their basic salary in terms of the Amendment Scheme to the General Insurance (Rationalisation of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Amendment Scheme, 1974 notified on 15.10.1985 by the Ministry of Finance, Department of Economic Affairs could be withdrawn in the year 1996. 2. For factual matrix, we would like to refer the averments made by the Petitioner in W.P.No.5169 of 1996 who is the appellant in W.A.No.781 of 2003. He joined M/s.New India Assurance Company Limited as Typist in the year 1980 at the pay scale of Rs.175-10-235-15-295-20-395-EB-25-495-30-585. The said pay structure was in force in terms of the General Insurance (Rationalisation of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Amendment Scheme, 1974 (hereinafter referred to as "the Amendment Scheme, 1974") which was framed in exercise of the power conferred under Section 17A of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) (herein after referred to as "the Act"). By an amendment to the said Scheme https://hcservices.ecourts.gov.in/hcservices/ made in the year 1985, a notification was issued on 15.10.1985 giving effect from 01.04.1983 and as per the said Amendment Scheme to the Act, 1974 (hereinafter referred to as "the Scheme 1985") the pay scale for the Assistant, Typist, Telephone Operator, Telex Operator, Receptionist, Punch Card Operator, Unit Record Machine Operator, Comptist and other equivalent position were revised as Rs.520-30-670-45-850-60- 1210-75-1660/-. As per Para 3(a) of the Amendment Scheme, the employee may choose that his basic salary may be fixed in the revised scales of pay, in which case he shall intimate in writing to the Corporation or Company within 30 days of such publication of the Amendment Scheme or such further period as may be allowed by the Managing Director or Chairman-cum- Managing Director of the Company. As the said notification was not made known, the appellant did not exercise his option within the period of 30 days. Having come to know the amendment scheme, some of the employees, who are otherwise entitled to exercise their option and had not in fact exercised their option, had made their request for extension of time and accordingly the time was extended by issuing a supplement notification dated 23.12.1986 and they were granted time till 31.01.1987 to exercise their option. The said extension of time was also not made known to the appellant and consequently, he did not exercise his option. Only when he came to know of the scheme on 13.01.1992, he exercised his option and the same was accepted by the Assistant General manager of the Insurance Company and consequently, the pay scale was also revised in accordance with the Amendment Scheme,1985. Subsequently, during Government Audit, an objection was made on the ground that the option exercised by the appellant ought not to have been accepted as the same was beyond the period of 30 days as per the Amendment Scheme. Based upon the audit objection and also in view of the subsequent third amendment scheme, 1996, by impugned order dated 02.04.1996, the appellant was informed that his basic salary was fixed as per the Amendment Scheme, 1996 ignoring the revision option exercised by him in the amendment scheme, 1985. The appellant questioned the said order in the writ petition on the ground that when once the option exercised by him was accepted and the salary was also revised in terms of the Amendment Scheme, 1985, it cannot now be unilaterally withdrawn. The learned single Judge did not agree with the contention of the appellant and ultimately dismissed the writ petition giving rise to the present appeal. The other appellants had also approached this Court on similar set of facts and met with the similar order. 3. We have heard Mr.Sethuramaman, learned counsel for the appellant in the respective writ appeals, Mr.P.Sukumaran, learned counsel appearing for the third respondent. 4. As far as the entitlement of the appellant in the respective writ appeals to exercise option that their basic https://hcservices.ecourts.gov.in/hcservices/ salary may be fixed in the revised scales of pay in terms of the Amendment Scheme, 1985, the only requirement to be complied with is that such employees, who are willing to exercise such option, should make their option within 30 days from the date of publication of such Amendment Scheme. As the Scheme was notified on 15.10.1985, the employees ought to have exercised their option on or before 15.11.1985. Factually they had not exercised their option within the said period of 30 days. Though the period prescribed under the Amendment Scheme to exercise option was subsequently extended by way of a subsequent supplement Notification No.II dated 23.12.1985, extending the time till 31.01.1987 factually, none of the employee/appellant in the respective writ appeals had exercised their option even within the extended period. In view of the reason that the notifications were not published and supplementary instructions were not displayed in the notice board and they came to know of the scheme only on 13.01.1992, they exercised their option to the Assistant General Manager, which was entertained and the salary was also revised in terms of the Amendment Scheme, 1985. Pursuant to the acceptance of the options exercised by the appellants, they were also paid revised scales w.e.f. 01.04.1983 as the Scheme came into force with effect from the said date. This position continued till the year 1996 and when the Government Audit objected to that the option made by the employees beyond the period of 30 days ought not to have been accepted and and they ought not to have extended the benefit of revised pay scale in terms of the Amendment Scheme, 1985. In the mean time, the third amendment Scheme was also introduced and on the basis of the Government Audit Objection, by the order questioned in the writ petition, the appellant in the respective writ appeals were informed that their basic scale had been revised only in terms of the third amendment Scheme, 1996 and the benefit given to them as per their option and the consequent revision of salary in terms of the amendment scheme, 1985 was ignored. 5. The question arises for consideration is as to whether the act done by the Assistant General Manager in accepting or entertaining the option exercised by the employees beyond the period prescribed under Para 3(a) of the Scheme could be considered to be valid or not. 6. Para 3(a) of the Scheme reads as under:- 3(a) Notwithstanding anything contained in sub-paragraphs (1) and (2), the employee may choose that his basic salary may be fixed in the revised scales of pay with effect from the date of publication of the Amendment Scheme in the Official Gazette, in which case he shall intimate this fact in writing to the Corporation or Company within 30 days of such publication of the Amendment Scheme or such https://hcservices.ecourts.gov.in/hcservices/ further period as may be allowed by the Managing Director or Chairman-cum-Managing Director of the Company. 7. As Mr.P.Sukumaran, learned counsel appearing for the third respondent had also drawn our attention to the administrative instruction for implementation of the Amendment Scheme, particularly para 4 of the Scheme, we are inclined to extract hereunder the para 4 of the Scheme as well:- "4. Option for the date of fixation of basic salary: The employees to whom the Scheme applies have the option to seek fixation of basic salary under the Amendment Scheme either from 1st April 1983 ( or the date of appointment, if later) or the date of publication of the Amendment Scheme viz., 15th October 1985. Such option is to be exercised within a period of 30 days from the date of publication. The form of option is enclosed-marked Appendix – I. Such option is to be submitted to the Officer- in-Charge of the Office in which the employee is working. The option once exercised shall be final." 8. Para 3(a) of the Scheme contemplates that an employee may chose that his basic salary may be fixed in the revised scale and in case, if such employee opts for re-fixation of his basis salary in terms of the scheme, he shall intimate the same in writing to the Corporation or Company within 30 days on such publication of the Amendment Scheme. The said period of 30 days is not flexible as the said para further empowers the Managing Director or the Chairman-cum-Managing Director of the Company to allow the employees to exercise their option even beyond the period of 30 days of publication of such Amendment Scheme. 9. Of course, an employee is not entitled to opt for revision of pay scale in terms of the Amendment Scheme beyond the period of 30 days in case, neither the Managing Director or the Chairman-cum-Managing Director of the Company extended the period to enable the employee to exercise his option or entertained any request for revision of pay scale in terms of the Amendment Scheme, 1985. 10. In this context, para 4 of the Amendment Scheme which we have extracted earlier is also referable. By that instruction, the employees were informed that they should make their option within the period of 30 days from the date of publication of the Amendment Scheme. The employees were also informed that the option once exercised shall be final. An argument was advanced by the learned counsel for the appellant that in view of the above instruction, the employee cannot https://hcservices.ecourts.gov.in/hcservices/ make any request for revision of scale of pay in terms of the Amendment Scheme, 1985 and once he exercises an option, he cannot withdraw as well, thereby meaning that no option could be entertained, if the same is exercised beyond the period of 30 days. Therefore, the learned counsel would submit that even assuming that the option had been entertained, it is contrary to the instructions and therefore, the employees cannot take advantage of the mistake committed by the officer as such mistake has serious financial implications of the Company. We are not inclined to accept the said submission for the simple reason that the instruction cannot go beyond the very Amendment Scheme framed in exercise of the power under Section 17A of the Act. 11. The question is, as to whether the entitlement of an employee to exercise his option should be considered with reference to para 3(a) of the Scheme as such or as to whether on the basis of the instructions. Instructions under Para 4 of the Amendment Scheme is in the nature of administrative instruction as to how an option should be exercised. Merely because para (4) of the Amendment Scheme does not indicate as to whether the period of 30 days can be extended or not, the right of an employee to exercise his option in terms of Para 3 (a) of the Amendment Scheme even beyond the period of 30 days cannot be deprived of, in case, such option is accepted in view of the power conferred on the Managing Director or the Chairman-cum-Managing Director of the Company to allow such option which exercised even beyond the period of 30 days. It is not as if that the employees in question had exercised their option choosing the revision of salary in terms of the Amendment Scheme, 1985, by suppressing any facts. In fact, in para 9 of the affidavit filed in support of the writ petitions, they have made clear that they did not know about the notification of the Amendment Scheme, 1985 and consequently their entitlement to exercise their option within the period of 30 days from the date of notification. We hasten to add that we are not inclined to go into the question as to the veracity of the submission as the same was not put in issue whether the employees in question were made known to the notification or not. Equally, none of the employees had opted to submit their request even when the supplement notification No.II was issued during the year 1986 extending the time till 31.01.1987. Nevertheless, they exercised their option in the year 1992 as they came to know of the Amendment Scheme, 1985 only on 13.01.1992. 12. The question is, as to whether such option exercised after the period of nearly seven years could be entertained or not? It is not as if the Amendment Scheme has been strictly adhered to with reference to the period of limitation of 30 days prescribed in para 3 of the Amendment Scheme. Though, the period of 30 days is prescribed for the employees to exercise https://hcservices.ecourts.gov.in/hcservices/ their option from the date of publication of such Amendment Scheme, the said period has been subsequently extended by issuing a supplement notification dated 23.12.1986 extending the period till 31.01.1987. The appellant Insurance Company had rightly understood para 3 of the Amendment Scheme and had exercised the power by allowing the employee to opt even beyond the period of 30 days from the date of publication of such Amendment Scheme, 1985. Therefore, the arguments advanced by the learned counsel for the third respondent that as per the Amendment Scheme, 1985 the period of 30 days from the date of publication of such Amendment Scheme, cannot be extended is untenable and such extension is permissible, of course, either at the instance of the Managing Director or the Chairman-cum- Managing Director of the Company. 13. The next objection of the learned counsel for the third respondent is, that in any case, in the absence of any specific extension as has been done by a separate notification dated 23.12.1986, the Assistant General Manager ought not to have accepted the option exercised by the employees in question in the year 1992 and consequently he ought not to have extended the benefit of the Amendment Scheme, 1985. This is precisely, the objection of the Government Audit and therefore, the learned counsel would submit that when once the mistake is pointed out, it is always open to the third respondent to correct or rectify the mistake. 14. Of course, there cannot be any dispute that the employees who had not exercised their option even when they had been given such benefit, cannot as a matter of right subsequently seek for extension of time. But the facts of the present case, we notice that on a genuine belief the employees approached the Assistant General Manager of the Company seeking for extension of the benefit of the Amendment Scheme by exercising their option in the year 1992. That option was accepted and the benefit had also been extended. There was absolutely no objection not only at the level of the Managing Director or the Chairman-cum-Managing Director, but also by the Internal Audit of the Company at that time. In a matter of financial implication, it has to be understood that the extension of financial benefits is made only with the approval of either the Managing Director or the Chairman-cum-Managing Director of the Company. We are constrained to record this finding in the wake of absence of any denial on this issue in the counter affidavit by stating that neither the Managing Director nor the Chairman-cum-Managing Director had granted approval for the revision of pay scales and the fact remains that the internal audit has also not objected to the same. The extension of time for exercising the option could reasonably be concluded either by express orders or by the conduct. When once the option exercised beyond the period of limitation was accepted and consequent upon such acceptance the same was https://hcservices.ecourts.gov.in/hcservices/ acted upon and the benefit of the Amendment Scheme, 1985 was also extended and such order of extension of the benefit was in force until Government Audit objection was made in the year 1996 (i.e,) after lapse of 4 years it can reasonably be presumed that the period for exercising the option in terms of 3(a) of the Amendment Scheme has been extended and therefore, the question of mistake cannot be put against the employees. 15. It is not as if that the employees in question are not eligible to exercise their option. If an employee, who is not eligible to get certain benefit contrary to the Amendment Scheme, is granted the benefit, it cannot be put against the respondents and such extension of the benefit by mistake could be rectified by subsequent orders. The law has been well settled that a mistake committed by an Officer cannot be put against the Company or the Government. However, the facts of this case is otherwise. It relates to only procedural irregularity. If at all the benefit could be extended to the employees, it could have been extended only on their request within a period of 30 days. That does not mean that a request made beyond the period of 30 days cannot be entertained at all, especially when there is a provision for allowing an employee to exercise such option even beyond the period of 30 days. 16. The Court can reasonably drew an inference that power under para 3(a) of the Amendment Scheme had been rightly invoked while the employees made their request for exercising the option in the year 1992 and such request was entertained and consequently they were extended the benefit of the Amendment Scheme, 1985. Hence, we do not find any merit in the contention of the learned counsel appearing for the third respondent. 17. That apart, the law on recovery is consistent as the Supreme Court has repeatedly held that in the event any excess amount is paid to an employee or Government Servant as the case may be, could be recovered only on certain conditions. In COL. B.J. Akkara (Retd.,) Vs. Government of India and others 2006 (11) SCC 709, the Apex Court has observed as under:- " 27. 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. (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. https://hcservices.ecourts.gov.in/hcservices/ (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. 28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. 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, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. " 18. It is not the case of the third respondent either in the argument or in the counter affidavit that the employees in question had obtained the benefit of the revised scales of pay in terms of the Amendment Scheme, 1985 by making misrepresentation or false representation. In the absence of any such allegation against the employees in question, in our opinion, the benefit, which had been given in the year 1992 by the Assistant General Manager to the employees and continued to be extended till the year 1996 cannot be taken away and the difference amount paid in terms of the Amendment Scheme 1985 cannot also be recovered. 19. For the foregoing reasons, we are of the considered view that the impugned common order made by the learned single Judge dismissing the writ petitions is liable to be set aide and the writ petitions accordingly succeed. https://hcservices.ecourts.gov.in/hcservices/ 20. In the result, The writ Appeals are allowed. The Common Order dated 22.11.2002 made in W.P.Nos. 5169, 5397, 5445, 5530, 5787 and 9871 of 1996 is set aside and the writ petitions are allowed and consequently the orders dated 02.04.1996 impugned in Writ Petitions are quashed. No costs. Consequently connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk To 1.General Insurance Corporation of India 170-J, Tata Road, Church Gate, Mumbai 400 020. 2. The Chairman & Managing Director, The New India Assurance Company Limited, 87, Mahatma Gandhi Road, Fort, Bombay 400 001. 3.The Assistant General Manager, New India Assurance Co. Ltd., Spencer's Towers, 3rd Floor, 770-A, Anna Salai, Chennai 600 002. 1 cc to Mr.P. Sukumar, Advocate, Sr. 2411 1 cc to Mr.S. Sethuraman, Advocate, SR. 2487 Writ Appeal Nos.781 to 786 of 2003 VSV (CO) kk 13/2 https://hcservices.ecourts.gov.in/hcservices/